Immigration Bill, 1999: Second Stage.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I move: "That the Bill be now read a Second Time."

I am pleased to bring before this House my proposals for putting on a statutory footing the principles governing the power to deport and the procedures to ensure that the rights of individuals are respected when deportation is being contemplated in any case.

Before I deal with the specifics of this important Bill I would like to tell the House briefly about my plans in the coming year for a legislative overhaul of the State's laws in the area of immigration generally and in the related area of asylum and refugees. First, I am pleased to be able to tell the House that I expect to be in a position before Easter to bring forward to the Government proposals for a short amending Bill which will enable me to make the Refugee Act, 1996, fully operational. As the House will recall, that Act was enacted against a backdrop where we had 300 to 400 applications per annum for asylum. It provided that each individual application had to be considered personally by the Refugee Applications Commissioner and, where applicable, each appeal had to be considered by a five person appeal board. Clearly in circumstances where the numbers of persons seeking refugee status here had increased from the low hundreds to almost 5,000 last year, those structures are totally unworkable. My amending Bill will primarily concentrate on amending those first instance and appeal structures so that they reflect the current realities and I look forward to having the Refugee Act fully operational in the near future.

Second, the work on drafting legislation to deal with those who seek to exploit asylum seekers by engaging in the appalling and odious trade of trafficking is nearing finalisation. I expect to publish that Bill within weeks.

Third, my Department is working on a major Bill to replace, modernise and codify the law on immigration and residence in the State. The principal legislative measure in place regulating immigration and residence in the State dates back to 1935, that is, the Aliens Act, 1935. I plan to overhaul this Act comprehensively and replace it with a modern code of immigration law which will provide a solid legislative framework for the development and implementation of fair and sensible immigration policies to meet the changing needs of Irish society. The new Act will also, of course, guarantee the rights of non-nationals in their dealings with the law. My intention is that this legislation will be ready for publication later this year. It will, in effect, be the first ever fundamental review of the State's principal legislative measure in the immigration area and I hope that it will give rise to an informed and considered debate both inside and outside the House.

These proposals taken together with the Bill represent my plan for ensuring that in all aspects of immigration law, the principles, practices and procedures will be clearly set out in a comprehensive, modern, fair and just code of statute law. I want to arrive at a situation where the people who operate the immigration and residence legislation and the people whose lives may be affected by its operation can clearly identify what exactly they can expect from the law and what the law expects from them.

I turn now to the Bill before us. It is a progressive measure designed to set out in clear and unambiguous terms who is liable to be deported, the principles and practices which I and my officials must observe in each case before a deportation order can be made and a set of procedures that give an opportunity for the person liable to be deported to make representations and have them heard before the decision to deport is made.

Deportation powers are essential in relation, for example, to those who flout the requirements of immigration and residence law and those who have been convicted of serious crimes or whose removal from the State has been recommended by a court in criminal proceedings. These are people who are liable to be deported under the laws of any state. The Bill identifies the categories of people who may be deported from this State.

The Bill spells out, for the first time in statutory form, the various aspects of each case that must be taken into account. As well as questions of character and conduct, the list includes such matters as the person's domestic circumstances, the nature of the person's links with the State, humanitarian considerations and the person's business and employment record and prospects. The Bill also spells out the requirement to give notice in appropriate cases that deportation is being considered, and gives the person the opportunity to make full representations which must be taken into account.

The immediate background to this Bill is, of course, the judgment of the High Court in the case of Laurentiu v. Ireland, the Attorney General and the Minister for Justice, Equality and Law Reform, delivered by Mr. Justice Geoghegan on 22 January last. That judgment found that each step in the procedures followed in relation to Mr. Laurentiu's application for asylum, and his subsequent application for leave to remain in the State, was properly carried out. The adverse finding of the court, however, was that the power to make deportation orders vested in the Minister by the Legislature under the Aliens Act, 1935, was vested in a manner inconsistent with Article 15.2.1 of the 1937 Constitution. That article provides that the sole and exclusive power of making laws is vested in the Oireachtas and that no other legislative authority has power to make laws for the State.

In so far as many of the provisions contained in this Bill are concerned, it had been my intention to legislate for these matters by way of ministerial orders. Much of the groundwork had already been done, and the relevant orders were about to be made. My intention was to have these provisions in place pending their incorporation in the comprehensive Bill, which I have mentioned at the outset, that is being prepared to replace and codify the law on immigration and residence.

As matters stand, there are no powers to deport non-nationals from the State. In the light of the High Court ruling, it was incumbent on me as Minister to bring forward legislation as a matter of urgency to ensure that the State would have the necessary powers. There is no state which does not have a power to deport. It is a necessary power of all states. Its place in the law has been referred to in a number of judgments. Mr. Justice Geoghegan's judgment in the Laurentiu case, for example, quoted with approval a passage of Mr. Justice Gannon in the 1986 High Court case of Osheku which characterised control of the entry of non-nationals into the State, their departure and their activities and duration of stay within the State as being in the interests of the common good, a fact "recognised universally and from earliest times". He went on to say that "the integrity of the State constituted as it is of the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the Constitution."

Turning to a separate though related matter, the State's policy on refugees is, as it must be, in accordance with international obligations. These arise by virtue of Ireland's adherence to the principles enshrined in the 1951 Geneva Convention on Refugees and its related protocol. Simply stated, my policy is to ensure that every non-national who is genuinely in need of the protection of this State is identified and recognised as such as soon as possible after arrival here, so that they can immediately start the process of integration into Irish society and take up the rights to which they are entitled under the convention. The practicalities are that every non-national who enters, and stays in, the State needs to be dealt with as soon as possible after arrival here so that whatever rights they may have to remain in the State can be assessed humanely and fairly. As regards those who come seeking asylum, the resources and the systems are now in place to address every application within a reasonable period of time. This is because one of my first tasks on taking up office was to set about the business of obtaining resources necessary to do the job.

In fairness to those non-nationals who are genuinely in need of the protection of the State in accordance with the norms set down in international conventions, it is necessary to ensure on the other hand that there are no incentives for making ill-founded or speculative claims for asylum. This is because the work needed to deal with such applications gets in the way of the important task of giving early protection to those who are entitled to it. Applications for asylum from those who have already claimed it in another EU state, or who had the opportunity to do so but did not, are returned to that country under the Dublin Convention to be dealt with there.

Another important element is to ensure, as has been advocated by the United Nations High Commissioner for Refugees, that those whose applications, after a proper hearing with all the necessary safeguards as provided under our present system, turn out to be unsuccessful return to their countries of origin. While some may return willingly, in the final analysis there must be a system of deportation for those who will not so return.

The policy of the Government on immigration is simple. It aims to facilitate people coming here for whatever reason, be it holiday visits, study purposes, business or employment. The expectation is that those wishing to come here do what is expected of any person visiting a country not their own, they comply with the laws of the land, including the requirements of immigration and residence law. The policy is one of welcome, consistent with the administration of justice.

This is not only the background to this Bill but the overall policy and legislative context in relation to all aspects of immigration. I will now discuss, in some detail, the more important features of the Bill.

The first element that is worthy of note is the use of the term "non-national", which is defined in section 1. This expression is more in keeping with modern usage than the term "alien" which has been used in the Aliens Act, 1935 and in all aliens orders made thereunder. That term has a strict legal meaning and is in widespread use in the context of international immigration instruments, for example, the Schengen Agreement. It owes its origin to the Latin noun and adjective alienus, which simply conveys a quality of “elseness”. Nowadays it is more likely to conjure up images of outer space than of people from other countries. I am happier to see its use discontinued. The repeal of the 1935 Act, which I propose in the comprehensive immigration and residence legislation under development, will put an end to its usage altogether.

That said, if there is ever an invasion from outer space, I have no doubt—

Mr. Howlin

The Minister will deport them.

Mr. O'Donoghue

—the aliens legislation will be revived.

Section 2 is a precautionary measure taken in the light of the High Court judgment in the Laurentiu case. This is to offset any possibility that the finding of the court in relation to the power to deport could by analogy be extended to powers of the Minister under the Aliens Act to make orders relating to other aspects of immigration and residence of non-nationals. This could have consequences for the operation of immigration controls generally, for example, at ports and airports, and the Attorney General has advised that, as a precaution against that eventuality, it would be prudent to put in place a provision on the lines proposed in section 2. Subsection (2) ensures that the conferring of the status of an Act on the aliens orders will not infringe the constitutional rights of any person.

The core of this Bill is contained in section 3, which provides the power to make deportation orders and spells out the principles and procedures surrounding the exercise of the power. Subsection (1) describes what a deportation order is and gives power to make such orders. Subsection (2) lists the classes of non-national who are liable to be deported.

The list includes those who have served or are serving prison sentences and those whose deportation has been recommended by a court in criminal proceedings. It also includes EU nationals whose conduct is such that it would be contrary to public policy or endanger national security to permit them to remain in the State. Finally, the list includes non-nationals whose asylum applications are transferred under the Dublin Convention to another convention country; those whose applications have been unsuccessful; those who are in contravention of the requirements of immigration law and those whose deportation would be conducive to the common good. This is a list of those liable to be deported. It does not follow that every person who comes within those categories should be removed from the State. That depends on the consideration of the matters set out in subsection (6), to which I will refer shortly.

The requirements to give notification of the proposal to make a deportation order and to notify the decision, once made, are set out under subsection (3). Subsection (4) sets out the information that must be given in the notice, that it is proposed to make an order, including in particular that the person has the right to make representations within 14 days.

Subsection (5) specifies the circumstances in which notice under this Bill need not be given. Where the person has consented to the making of an order, as at paragraph (a) of this subsection, there is clearly no need for further notice. However, there is the safeguard that the Minister must be satisfied that the person understands the consequences of a consent and there is the further protection at subsection (8) of this section to prevent deportation on foot of a stale consent given more than three months beforehand.

Where a court, arising out of criminal proceedings, recommends deportation, the person will have had the opportunity in those proceedings to make a case against deportation. No notice is required under paragraph (c) of subsection (5) if the person is already outside the State. This is to cover the situation where attempts to trace the whereabouts of a non-national liable to deportation indicate that the person has already left the State for an unknown destination. Paragraph (d) excludes from the requirements of notice under the Bill a person whose asylum application is being transferred under the Dublin Convention to another convention country. The Dublin Convention (Implementation) Order, under which such transfers occur, already contains its own extensive provisions regarding notice and opportunities for representations and it would be superfluous to add another procedure under this Bill.

Section 3 (6) is a particularly important provision. It sets out in statute the matters to which the Minister must have regard before making a deportation order. While this provision reflects what is already the practice in my Department, its value here is that the public at large, the people whose lives may be affected by the operation of this legislation, their legal advisers and those who administer the law in this area have a clear statutory statement of policy and principles. That is one of the chief benefits of this legislation, and it is designed to accord fully with the judgment in the Laurentiu case.

While the list speaks for itself, subsection (6) (j) is a restatement of the general principle first set out at section 5 of the Refugee Act that no person shall be returned to where the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular group or political opinion. That prohibition, which is in operation under the Act of 1996, is based on Article 33 of the 1951 convention on the status of refugees, which forbids the refoulement of refugees, but goes beyond the narrow requirements of the convention in that it applies to any person whether a refugee or not.

From a strictly legal point of view, it is probably unnecessary to repeat in this Bill what is already of general legal application by virtue of the Refugee Act provision itself. My view is that it is such an important consideration as to be worth repeating here in the Bill in company with the other factors for consideration.

Subsection (9) sets out what is required of a person in respect of whom a deportation order has been made. It also contains a valuable safeguard for such persons who have been five years or more working or operating a business in the State on the same lines as in section 5(5) of the Aliens Act 1935, that is, a three month delay on the operation of the order to give an opportunity to wind up one's affairs.

The notice of the making of a deportation order gives the person an opportunity to comply voluntarily with the order by presenting himself or herself to a specified person at a specified date, time and place – which will usually be an immigration officer or the member in charge of a Garda station. If the person does not comply, it is only at that point he or she will be liable to arrest under section 5(1) of the Bill without further notice and detention with a view to effecting the removal from the State. Subsection (4) of that section limits the total period of detention on foot of a deportation order to eight weeks.

That eight week limit will not include any period on remand or serving a prison sentence or any period during which there are proceedings challenging the validity of the deportation order. If a deportee seeks to delay deportation by, for instance, refusing to co-operate in obtaining a travel document from his or her country of origin, and is as a result charged with and convicted of an offence under section 8(1)(b), any time spent on remand or serving a sentence in connection with that offence will not count in reckoning the eight week period, and no advantage will accrue, therefore, to the uncooperative deportee.

Along with the general power to make regulations set out in section 7 – which will deal, for instance, with the form of the deportation order and the specified places of detention – there is power to make regulations to deal with recoupment from a person being deported of the costs of the removal in appropriate cases. While the State pays the travel and other costs of most deportations, it is reasonable that, for instance, a convicted drug dealer with substantial assets in the State who is being deported after having served his sentence should pay the price of his own ticket and the tickets of any necessary escorts.

Section 4 provides the power to make exclusion orders where necessary for reasons of national security or public policy. This is to ensure that, for example, a war criminal or offender against human rights, about whom there is reason to expect that he or she may seek to enter the State, will not be permitted to enter the State.

Such orders, made hitherto under the Aliens Act, 1935, are very rare. I understand such orders were made some years ago in relation to a former Nazi officer and a colonel in the South African police of the apartheid era. Exclusion orders have a significance in relation to the curtailment of the application of the Refugee Act, 1996, to persons named in them, and it is necessary to restate the power to make such orders here to ensure that Act can come into effect properly once the amending legislation I have promised is passed.

Section 9 specifies a maximum fine of £1,500 and a maximum term of 12 months' imprisonment for summary conviction of offences under the Bill and section 10 applies the same maxima to offences under the Aliens Act, 1935, for breaches of Aliens Orders. Those were set in 1935 at £100 and six months, and have remained unchanged since then. The limits now proposed are in keeping with the maximum punishments which may be imposed by the District Court generally.

There is one important aspect of this overview of the contents of the Bill I would like to reiterate before I conclude. The High Court judgment does not force on me any matter of substance which I was not already about to do in one form or another. Its effect is on the form of my proposals, not on the substance. Instead of making an Aliens Order, I am providing substantially the same by way of this Bill.

In its own context, the Bill is comprehensive in relation to the deportation process. It introduces a good deal of transparency to the law in an important area. The Bill is in keeping with the Government's policy of bringing about a situation where the law on immigration is completely updated and overhauled to deal with modern day circumstances and not the circumstances of some six decades ago.

I thank the House for its co-operation in arranging this early debate on the Bill and I look forward to it passing all remaining Stages in this and the other House as a matter of urgency. I commend the Bill to the House.

Mr. Higgins

(Mayo): The title of the Bill is misleading. It is labelled the Immigration Bill, 1999, but it has nothing to do with immigration. I regard immigration as denoting voluntary inward action but the Bill has little to do with that. It is concerned with deportations, excluding people from the country and keeping them out. The Bill should be entitled the Deportation Bill, 1999.

The debate arises from the High Court decision declaring part of the Aliens Act, 1935, to be unconstitutional. The debate is opportune and overdue because there has been a long-standing demand for a full and comprehensive debate on the whole asylum-refugee issue. The debate is welcome in that it enables us to take a critical look at the way Irish policy operates in the area of refugees and asylum seekers. It enables us, for example, to take stock of public opinion on the issue and voice the concerns of so many representative humanitarian support groups which are doing their best to articulate the rights of the many vulnerable and socially isolated people who come to this country seeking the right of residence.

The previous occasions the House debated the issue of asylum included the adoption of the all-party motion on racism, the Democratic Left Private Members' Bill taken in Fine Gael time which sought to grant an amnesty to those who had made application to the Department of Justice, Equality and Law Reform, the people who applied before 1 January 1998, and the brief, generally unsatisfactory exchanges during Question Time. On each occasion, enormous dissatisfaction was expressed at the manner in which the Minister, Deputy O'Donoghue, and his Department had dealt with the issue of asylum and refugees.

The Minister's abandonment of what appeared to be humanitarian concern for refugees is well illustrated in his contribution to the Second Stage debate on the Refugee Bill, 1995. On 19 October 1995 the then Deputy O'Donoghue stated in the House: "The status of refugees is an issue which should strike a chord with every man, woman and child here who has any grasp of Irish history, our history books being littered with the names and the deeds of those driven from our country out of fear of persecution".

Mr. Howlin

That was his idealistic phase.

Mr. Higgins

(Mayo): That was then and this is now.

Mr. O'Donoghue

No, it is exactly the same. The Deputy is blurring the distinction between refugees and illegal immigrants.

Mr. Howlin

Where is the Refugee Act?

Did the Minister clear this with Ivor?

Mr. Higgins

(Mayo): He has jailed these people, deported them and presided over an unfair, unclear ad hoc system which has left asylum seekers uncertain and bewildered.

On Saturday, 13 October 1997 Sky Television broadcast around the world the shameful pictures of 2,000 asylum seekers queuing for hours in pouring rain outside the Minister's Department in St. Stephen's Green to renew their identity cards. This is the treatment meted out by a country which for centuries has seen its finest young people scattered to the four corners of the world unable to obtain employment here.

Mr. Howlin

The Minister is no longer listening to the Deputy.

Mr. Higgins

(Mayo): That is the treatment meted out by a country which frantically lobbied influential Irish-American politicians in the United States ten years ago to introduce a range of measures to give illegal immigrants Morrison and Donnelly visas, work permits and green cards because of the vulnerable position in which they found themselves by being classified as illegal immigrants.

The Minister's inconsistency and indecision became apparent from the start of his ministry. On 12 August 1997 a newspaper headline stated: "O'Donoghue Signals Intention to Amend Unimplemented Refugee Act". What happened to that intention? Did he implement the Act? Just as he has done tonight, he walked away from that Act claiming that the High Court challenge of Patrick Cooney to the validity of the competition for the position of refugee applications commissioner was a major obstacle. Nothing prevented the Minister from implementing the remainder of the Act. No attempt has been made by him to request the courts to advance the court hearing and have the matter determined once and for all. The net result is that the promise made on 12 August 1997 remains another empty ministerial aspiration.

On 27 August 1997 another newspaper headline stated: "Law Change to Give Asylum Seekers New Right of Appeal". The intention was that appeals would be decided by an independent lawyer to be named by the Minister, Deputy O'Donoghue. These appeals, however, were not dealt with by an independent lawyer but by unnamed civil servants in the Minister's Department.

On 7 August 1998 we were told that the Minister intended to introduce fast-track procedures for clearing the backlog of asylum applications. The Minister confirmed that he was abolishing the 1985 procedures under which a United Nations agency was consulted in every asylum case without exception. In future, the UN High Commission for Refugees will have the right to inspect cases but will not be automatically involved.

The Minister stated that "the refugee crisis will be tackled head on by tough new legislative changes", another manifestation of his much beloved zero tolerance. The article goes on: "under the proposed legislation penalties will be imposed on ferry companies or truckers who smuggle in asylum seekers". That was August 1998. It is now February 1999 and the only legislation we have dealing with the issue of asylum seekers is this Bill which was forced on the Minister by a successful High Court challenge to the 1935 Act.

Last summer there was another knee-jerk reaction and another banner headline, "Dole cuts and army barracks for refugees". Thankfully both proposals were abandoned. The Minister's response on 22 January to the High Court judgment was typical of the confusion and indecision with which he has dealt with this issue. On the same day two conflicting statements were issued on his behalf. One indicated that he was considering appealing the decision to the Supreme Court and the other promised he would implement amending legislation as a matter of urgency.

The Government's disarray was well underlined in the newspaper headline on 14 July, "O'Donoghue rejects O'Donnell call to allow asylum seekers here to work". In the article the Progressive Democrats Party Minister of State at the Department of Foreign Affairs, Ms O'Donnell, stated "Asylum seekers waiting to have their cases heard should be allowed to take up employment. The fact that asylum seekers are prohibited from working means that many of them are labelled as scroungers". I agree wholeheartedly with her. Fine Gael, in common with other parties and groups, has been pressing incessantly for the right to work for asylum seekers. The article goes on, however, "Rejecting the call Mr. O'Donoghue said Ireland already attracted a disproportionate number of asylum seekers because of what he called the generous system here". Thankfully Minister of State O'Donnell is supported in Cabinet by the Tánaiste, Deputy Harney, and the Government now seems likely to allow asylum seekers to work. This is one occasion when I welcome the tail wagging the dog.

This measure is another stop-gap effort. The Minister must appreciate that a coherent and cogent refugee and asylum policy is needed. The Minister needs to shed the paranoia which afflicts him. He needs to look at the situation in clear perspective. He should stop believing his own propaganda that Ireland is being flooded with refugees. Estimates of the numbers of refugees who have fled their countries vary between 15 and 25 million. Of these, 90 per cent remain in the undeveloped countries of the southern hemisphere. Less than 10 per cent make their way to the developed countries of the northern hemisphere. Of these a small fraction – 1 per cent of that 10 per cent – make their way to Ireland.

Amnesty International has pointed out that Ireland does have an unfair share of the world's refugees, a share which is unfairly small. The 1996 figures illustrate this. In 1996 Germany had 149,000 asylum applications, the Netherlands 22,860, Belgium 12,780, the UK 27,870 and Ireland 1,179. While the numbers have grown over the past two years, the ratios have remained unchanged. While one has to welcome the improvements in the regime for dealing with asylum seekers, we are still the only EU country which does not have a statutory basis for dealing with asylum seekers. Although Ireland is a signatory to the 1951 Geneva Convention and its 1967 Protocol, the terms of the Convention have not been incorporated into domestic law.

We need to replace or amend the Refugee Act, 1996. If the age restriction of the commissioner is the problem, let us amend the offending section to deal with the plaintiff's grievance. I would go further. We should consider appointing three commissioners given the current number of cases and the likelihood that, with the ongoing political upheavals throughout the world, they will be required for the foreseeable future.

Is it any wonder that in the absence of anti-discrimination legislation, given our secretive procedures for dealing with asylum seekers and the noticeable unwillingness on the part of the Minister and certain sections of the media to quell the anti-refugee hysteria, that racist movements such the Immigration Platform gather momentum?

I welcome that the Minister's resistance to granting work permits has been faced down. Will he indicate to the House when the proposal to grant work permits will come on stream? Is he in a position to spell out the criteria and conditions which will apply?

While granting permission to work is welcome and important, it goes beyond the simple expedient of allowing people the right to earn their keep and to contribute to the country, rather than depend on it to sustain them. The issue of asylum should be looked at within the context of an overall immigration policy. After generations of mass emigration, we are now in the happy position that there is a net inflow to the country. In 1997 immigration reached a high point of 44,000 with a net inflow of 15,000. The figures available do not specify where these 44,000 came from or why they are here. We know only that 20,000 came from the UK, 8,100 from other EU countries, 6,600 from the US and 9,300 from the rest of the world. It can be presumed that many of them were Irish people returning after some time abroad. We know that 2,883, a mere 9 per cent, were asylum seekers.

A point which does not seem to be appreciated at Government level is that immigration and asylum is not just a human rights issue. Immigrants can add economic impetus as well as cultural diversity. It is patently clear that there is a major shortage of skilled labour in this country. There is little doubt that Ireland will be unable to sustain its status as Europe's fastest growing economy without a planned approach to increase in population. The Taoiseach should commission a study and seek recommendations from the National Economic and Social Council as to how the skills and abilities of immigrants and asylum seekers could be integrated into the workforce and social fabric of the country. We need to determine now the level of population increase required to meet our growing labour needs. In simple terms, Europe's least populous state cannot sustain its status as its fastest growing economy without a significant and planned increase in population. We need to accompany this policy with clear assimilation and immigration policies.

The Government might look at the Israeli experience. Israel, a country with a population of 4 million and a land mass which could fit into the combined territory of Connaught and Munster, absorbed more than 700,000 mainly Russian and Ukrainian immigrants between 1989 and 1992. It absorbed a further 100,000 per annum between 1992 and 1996. Many arrived without money, a place to stay, or relatives and could not speak the langu age. They brought with them, however, a determination to get on, a will to survive and a considerable reservoir of skills. It was feared that, as a result of the huge influx, public spending would explode, unemployment would rocket and borrowing would lead to currency devaluation and inflation. The opposite happened. The immigrants provided the dynamo which propelled the economy to new heights.

Debate adjourned.

Dáil Éireann díospóireacht - Tuesday, 9 Feb 1999

Immigration Bill, 1999: Second Stage.

Dáil Éireann díospóireacht -
Tuesday, 9 Feb 1999