Amendments Nos. 1 and 44 are related and may be taken together by agreement.
Immigration Bill, 1999: Report and Final Stages.
I move amendment No. 1:
In page 3, between lines 9 and 10, to insert the following:
"1.–This Act shall not apply to an unaccompanied non-national under the age of 18 years.".
On a point not related to this amendment, I submitted a substantial number of amendments for Report Stage.
It was necessary to submit Report Stage amendments before last evening's Committee Stage debate. Therefore, some of the Report Stage amendments I submitted may have been dealt with on Committee Stage. The time constraint which has been imposed on the debate of this Bill has caused some difficulties, including this one. Today again, we are faced with the dilemma of deciding whether to give amendments the attention they deserve or proceed quickly to complete the passage of the Bill.
Amendment No. 44 also deals with the question of children and provides that a child shall not be refused leave to land in the State and shall not be made the subject of a deportation or exclusion order for as long as the child is not in the custody of any person.
Other amendments relating to children were discussed on Committee Stage but I have resubmitted these two because I want the Minister to give an assurance that children, particularly unaccompanied children, who come into the State are given the due process and protection of the law. I want to be sure the Minister cannot deport children without a legal consideration of the reasons for their being in the country and without providing them with the protection of the law.
The Minister indicated that implementation of the Refugee Act would ensure unaccompanied children would automatically be placed under the protection of a health board and would, therefore, have the protection of the Child Care Act. When will this provision be enacted? Will the Minister give an assurance that children who come to this country, accompanied or unaccompanied, will have the full protection of the law and that they will not be sent back to a country where they may be in danger. I include situations covered by the Dublin Convention. This matter is of major concern to NGOs who have made representations to us. I have resubmitted these amendments so that the Minister may give us a guarantee that children who arrive in a strange country with very complicated immigration legislation are afforded the protection of the law.
(Mayo): I support this amendment. The case made by Deputy O'Sullivan, that people under the age of 18 who come from a foreign jurisdiction are particularly vulnerable, is valid. We have an obligation to provide the maximum possible protection for such people and to ensure they have access to all legal procedures. Although translation and interpretation facilities are made available in certain cases, asylum seekers may have difficulty in presenting their cases cogently and coherently and in underlining the strength of their cases. An immature person is particularly vulnerable in such circumstances. I ask the Minister to assure the House that the full process of the law will be made available to such young people.
The Opposition has made the point that the Title of the Bill is a misnomer. This is a deportation Bill, not an immigration Bill. The Bill would not have been introduced had the Supreme Court not declared a section of the 1935 Act unconstitutional. Because of that decision, various segments of the Refugee Act, 1996 and amendments to the Aliens Act, 1935 have been brought together. It is important that we recognise this is a deportation Bill. This was underlined very forcefully on Committee Stage when the Opposition sought to insert an amendment giving the advisory board the right to advise on immigration policy as well as on asylum policy. This amendment was trenchantly rejected by the Minister of State on the grounds that it might be dangerous to include immigration matters in the remit of the board and because of the Minister's long-term intention to establish a body to deal with immigration. We do not have an immigration policy or any body dealing with immigration. An immigration policy is necessary because thankfully, after many years, we are experiencing a net inflow of people into the country.
The Minister may cite section 6 of the Refugee Act which provides that children be placed in the care of a health board. The Child Care Act, 1991 is also important in this regard. We must be assured that a person under the age of 18 will automatically be placed in the care of a health board as soon as he or she makes an application for asylum.
I acknowledge the great work which has been done on this Bill by Deputies O'Sullivan, Howlin and Jim Higgins. The value of their work is reflected in the fact that the Minister has accepted many of their amendments. I acknowledge the right of the Opposition to criticise the Government for the short amount of time which has been provided for this debate and I understand the frustration of the Opposition in this regard. Were I in Opposition, I would raise similar objections. However, it is unacceptable, under privilege, to criticise public servants. On 29 June, the Leader of Fine Gael said, "I do not wish to cause disorder, but the Government has produced a raft of amendments, the equivalent of a new Bill, at the last minute and this amounts to laziness in the public service. They could have been introduced weeks ago". Later, when he was ruled out of order, the Leader of Fine Gael went on to say, "I have no doubt that the Minister has nothing to do with this—
Carlow-Kilkenny): The Deputy is not discussing the amendment.
I am about to come to the amendment, Sir.
Acting Chairman
The Deputy must come to it very quickly.
I will, Sir. He concluded by saying, "It amounts to inefficiency in the public service." Before the discussion of the Bill is concluded at 2.15 p.m., the Leader of the main Opposition Party should take the opportunity to withdraw that comment.
The subject of these amendments was dealt with in great detail on Committee Stage. There is much overlap between the Refugee Act and the Immigration Bill and this is indicative of what this Bill is intended to achieve. The two pieces of legislation are complementary.
Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): We see no reason in principle why an unaccompanied minor should be immune from deportation and exempted from all other provisions of immigration law in all circumstances as is proposed in amendments Nos. 1 and 44.
We cited some examples in this context. For example a 17 year old non-national convicted of drug smuggling, by virtue of these amendments, would be exempt from deportation by virtue of his or her age. Another example could be of a young child sent to Rosslare by his parents who will wait in Cherbourg to see how things develop in the hope that if the child is allowed stay the parents will have to be allowed enter the country. In such a case the health board might decide that the interests of the child would be best served by reuniting the child with his family in Cherbourg. Members will not suggest that a 17 year old non-national convicted of smuggling should be exempt in any way.
Protection for unaccompanied non-national minors entering the State is set out in section 8(5) of the Refugee Act, 1996. That provision ensures that in every case where such a person arrives in the State the local health board is informed and the provisions of the Child Care Act, 1991, come into play. The role of the health board includes determining on behalf of the child whether an asylum application should be made and the pursuit of such application as necessary. The role of the health board is much wider, extending to every aspect of the child's welfare.
Among the positive amendments to the Refugee Act, 1996, agreed on Committee Stage is a provision to deal with unaccompanied non-national children who are in the State when they come to notice. Another amendment accepted on Committee Stage had the effect of inserting a provision into section 5 exempting minors from detention pending deportation and also ensuring that the local health board will be able to play its role under the Child Care Act, 1991 where a minor's guardians are in custody. This is modelled on a similar provision in the Refugee Act and I am satisfied it is an appropriate way in which to meet the concerns of Deputies.
As was made clear on Committee Stage, pending the main provisions of the Refugee Act coming into operation, the procedure envisaged by section 8(5) and the proposed amendment is already operating in practice on an administrative basis. The usual circumstances in which such children come to notice is that they present themselves at the Refugee Application Centre, Lower Mount Street, Dublin. This one-stop-shop for asylum seekers, established by an initiative of my Department, also houses an Eastern Health Board centre. It is important that when a child turns up in the offices in Mount Street, he or she is immediately brought to the Eastern Health Board centre which is in the same building. The phenomenon of unaccompanied children is a small but growing one, and did not feature at all until 1996. Yesterday Members asked for statistics concerning the numbers in question and it may be of interest to note that since the beginning of 1996, 33 unaccompanied minors have applied for asylum, all but five of whom came to the notice of the Refugee Application Centre or, before it opened, the head office of my Department. Only five came to notice at the ports of entry.
I do not accept the logic underlying amendment No. 1 which assumes there will never be circumstances where a person who has been refused asylum or has not applied for asylum should be returned either to his or her country of origin or the country where his or her parents, guardians or other relatives are living. Every decision on whether to remove such a child from the State must be taken carefully and all relevant factors taken into account, including the situation in the country to which it is proposed to send them. This is what the list of factors set out in section 3(6) will achieve. These factors include the age of the person under paragraph (a), humanitarian considerations under paragraph (h) and in particular domestic and family circumstances under paragraph (c). These provisions secure the interests of the child in each case. The decision in any one case should not be dictated by an assumption that merely because the economic climate in the country of return is not as healthy as that in the western world the return should not take place. Social workers dealing, for example, with intercountry adoption are at pains to decry this sort of West-centred assumption which seeks to justify the flow of children from developing countries to developed countries without regard to cultural, social and other equally important factors in the upbringing of a child and which should not be overridden by economic considerations. In this context it is noteworthy that the Hague convention on intercountry adoptions, ratification of which is being worked upon by my colleague, the Minister for Health and Children, is based among other things on the premise that intercountry adoption should represent a subsidiary means of child care to be resorted to only where a child cannot be cared for in a family of his or her country.
Yesterday on Committee Stage we dealt in detail with whether immigration matters are dealt with here. There is no doubt that immigration matters in regard to refugee and asylum interests are dealt with here. It is general immigration interests which we do not wish to enshrine in regard to establishment of the advisory group.
I have not had a chance to study the Government amendments which have been tabled, but I thank the Minister's officials and the Minister for tabling a number of amendments.
The Minister indicated that if a child presents at the Refugee Application Centre in Mount Street he or she is transferred to the Eastern Health Board centre. I presume this relates to children who enter the country in the Eastern Health Board area or who are living in the Eastern Health Board area. What happens to a child who enters the country via Rosslare in terms of the role of the South Eastern Health Board or a child who enters via Shannon in relation to the role of the Mid Western Health Board? Are the same arrangements in place whereby the Child Care Act is automatically referred to? The Minister said that reference to the Child Care Act takes place in terms of administrative practice, but will it be provided for legislatively as soon as the relevant sections of the Refugee Act are in place? Specifically will the measures in section 1 of the Immigration Bill, namely, the part which is new, also safeguard minors with a view to their being properly looked after and given the protection of the State when then they come to the country?
Yes, is probably the answer to most of the questions raised by Deputy O'Sullivan. A child who turns up in Rosslare will become involved with the South Eastern Health Board. As we see from the statistics, 33 unaccompanied non-national minors turned up at the Refugee Application Centre in Dublin and were therefore brought across the lobby to the Eastern Health Board centre in the same building. If the other five had turned up in Rosslare they would have been in contact with the South Eastern Health Board or if they turned up at Shannon with the Mid Western Health Board.
Under section 8(5) of the Refugee Act legislative support is given to the provisions of the Child Care Act, 1991.
The main purpose of this amendment and amendment No. 44 is to tease out the issues in relation to children which is of great importance to all of us. As I see no great benefit in pressing the amendment at this stage I will, therefore, withdraw it.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 2 is in the name of Deputies Howlin and O'Sullivan. Amendments Nos. 3 and 82 are related and amendments Nos. 2, 3 and 82 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 2:
In page 3, line 31, after "made" to insert "prior to the 3rd day of February, 1999 and".
Amendment No. 3 is directly connected to this. This section retrospectively validates the orders under the Aliens Act, 1935, which were found to be unconstitutional and struck down by the High Court. It is wrong that we should have retrospective validation of what was in effect considered wrong by the High Court. When Mr. Justice Geoghegan summed up in relation to the Aliens Act he said Parliament rather than the Minister should set down policy and principles and that in the case referred to, the Minister was effectively taking upon himself the duties of Parliament. If we do not amend the Bill as I am proposing in amendments Nos. 2 and 3 we will in effect be allowing the Minister take upon himself the duties of Parliament in cases which arise retrospectively. This is not the right thing to do. My party's two related amendments, Nos. 2 and 3, will allow the Minister to proceed but will not involve engaging in retrospective legislation. They will not be in contravention of the opinions expressed by Mr. Justice Geoghegan in the Laurentiu case. That is the purpose of these amendments. The other amendment is obviously related also.
(Mayo): The High Court struck down as unconstitutional section 5(1)(e) of the Aliens Act, 1935, for good reason, as Deputy O'Sullivan stated, from the point of view of an absence of policy and principles. The Bill seems to be an attempt to validate orders made prior to that. Will the Minister say whether she is satisfied that one can make retrospective validation in respect of orders, the legislation governing which has been found to be unconstitutional? Has she received legal advice to confirm that there is, as has been said on Second and Committee Stages, no constitutional frailty here?
This arose on Committee Stage. I certainly hope the Minister is able to reassure the House in regard to Deputy Higgins's question. If not, the situation is serious for everybody's sake because it would effectively mean that we have no control whatsoever. I gather, for example, that if that was the case the State could not have prevented the arrival of the Yugoslav football team. Basically, the State would have no immigration controls at the port of entry. If there was another successful challenge, it would leave the State in a serious situation from the point of view of security and other matters. I hope the Minister will reassure us that that cannot happen and that the measures taken are correct.
Amendments Nos. 2, 3 and 82 are opposed. The effect of these amendments would be to remove the Aliens (Amendment) (No. 2) Order, 1999, from the provisions of section 2 which provides that every order made prior to the passing of the Act will, with the exception of those orders specified in the Schedule to the Act, have statutory effect. I am aware that Deputies Howlin and O'Sullivan tabled a resolution seeking to annul the order but have not pursued this.
The provision in section 2 is a precautionary measure taken in the wake of the High Court judgment in the Laurentiu case which was subsequently upheld in the Supreme Court. The purpose of the measure is to offset any possibility that the finding of the court could, in another case, be extended by analogy to powers of the Minister under the Aliens Act, 1935, to make orders relating to other aspects of immigration and residence of non-nationals. This would have very serious and immediate consequences for the State in the operation of controls at ports of entry and within the State. The Attorney General has advised that such a provision is prudent and appropriate.
A successful challenge along the lines of the Laurentiu case could effectively end all entry controls to the State. In terms of public policy and national security this is an occurrence which any Government would be reckless not to guard against. The recent example of the Ireland-Yugoslavia football game, to which Deputy Ryan referred, is appropriate in that had the situation arisen at the time, the State would have been powerless to prevent the arrival of the Yugoslav team here to fulfil that fixture. An important executive function of the State, used on that occasion to take a principled stand on an issue of international significance, would no longer be available. On a wider scale, the absence of controls would expose our community to the prospect of the most undesirable persons passing unhindered into the State. It would also spell the end of the common travel area arrangements which have for long been an important feature of relations between the State and its nearest neighbour. The duty to protect those arrangements in the interests of the common good of the people of Ireland has been recognised by the courts and is of such significance that Ireland, in the context of the Amsterdam Treaty, negotiated a special protocol in order for us to be able to continue those arrangements.
As I have pointed out, this is an interim measure. As already announced, the Minister has in the course of development a set of legislative proposals for a comprehensive code of immigration and residence law, the aim of which is to replace the Aliens Act, 1935, with a modern law which will provide a framework for the development and implementation of fair and sensible immigration policies better suited to the needs of the State and the individuals who may be affected by its operation. Its publication is expected early next year.
Work is advancing on these proposals and the intention is to have them before the Government before the end of the year, but it cannot be predicted with any degree of accuracy when a Bill on the considerable scale required will become law. There are questions of other legislative priorities that may arise in the meantime to place demands on the resources of the parliamentary draftsman or the Oireachtas. It would be wrong, therefore, to impose a six month lifespan on section 2, as proposed by amendment No. 3 because the process of introducing a further Bill to extend that lifespan would itself delay further the bringing forward of the comprehensive proposals.
I think it is safe to say that while it is all we have at the moment, the Act is not in this day and age a particularly satisfactory basis for a modern immigration and residence policy. As indicated on Second Stage, I want a legislative framework which facilitates the implementation of sensible and fair-minded policies in this area, where all concerned know what to expect from the law and what the law expects from them. My aim is to put in place a comprehensive code of immigration law which pays clear and obvious respect both to the protections which society requires and to the human rights of the individuals whose lives are touched by the law. This Bill is a first, interim step on that road.
Subsection (1) gives all aliens orders, except those listed in the Schedule to the Bill, made before the passing of this legislation the force of law as if the orders had been enacted by an Act of the Oireachtas. The exceptions include, of course, Article 13 of the 1946 order, the provision impugned by the High Court in the Laurentiu case – to have included that in this provision would have been inappropriate.
The other aliens order excluded from the scope of subsection (1), and thus not given the force of an Act of the Oireachtas, is the Aliens (Visas) Order, 1999, which was made on 3 February last. The reason for this exception is to allow for flexibility to make further orders under the 1935 Act making changes from time to time in the lists of countries whose nationals do not require visas and whose nationals are required to have transit visas. This power to make amending orders will not exist in relation to the aliens orders which are given the effect of an Act of the Oireachtas by subsection (1). I regard that subsection as, in effect, fixing the Aliens Order, 1946, and its amending orders in their present form until a new legislative base for immigration law is put in place.
It is desirable that the Minister should retain the power to decide by order who should require a visa to enter the State. A visa requirement is brought in usually in circumstances designed to curb the flow of illegal immigrants or potential such flows. It can be done quickly and effectively by making an order as is the case at present. In addition, to ensure the protection of the common travel area with the UK and conformity with our EU partners in relation to the common visa list, it is necessary to have an expeditious procedure for doing this. Any additions or deletions to the visa list are, of course, carried out in consultation with the Minister for Foreign Affairs.
In the meantime it is vital that the immigration controls of the State are protected. To include the Aliens (No. 2) Order, 1999, in the Schedule, as amendment No. 82 proposes, would completely undermine the protection proposed in section 2 because that order restates with some minor amendments the provisions dealing with entry controls.
I emphasise that the court decision did not relate to any other part of the immigration law except deportation. It is wrong for Deputy O'Sullivan to describe all the orders as having been found to be unconstitutional. The aim of this Bill is to ensure that the same arguments which succeeded in the Laurentiu case will not be used to wipe away our current immigration controls.
The Minister gave us a long and detailed reply. We must concur with her that we need substantial legislation as quickly as possible, particularly in light of the way in which we have to deal with this legislation. I am not too sure what will be the result of the complications which we have to deal with in this legislation. I would urge the Government to work on that substantial legislation as soon as possible. On the Order of Business the Minister indicated that it will probably be next year before it will be published, and that is disappointing. I hope the Minister of State's timeframe is the more accurate one and that the legislation will be published this year.
On amendment No. 3, the Minister indicated that a six month period might not be long enough and that it might be necessary to make further changes in order to encompass cases which might arise in regard to deportation between now and the time the legislation comes into effect. Surely, the Minister could have tabled a Report Stage amendment which would have extended the time period beyond six months if necessary. Nothing the Minister has said counteracts the principle underlying our amendments, namely, that it is not desirable that we should have this kind of retrospective validation which, in effect, goes against the principle of Mr. Justice Geoghegan's judgment on the right and duty of the Oireachtas to define legal principles. In effect, a retrospective ministerial decision has been made on this section of the Bill.
The concern about restrospection does not apply because there is no retrospective validation; the validation applies only to the future. The section contains the words "shall have" which indicate the future tense. Retrospective validation does not apply to deportation orders. Such orders are gone and will have to be made again.
My reading of the section is that validation is given to the order struck down by the High Court although I can see the Minister is being advised to the contrary. I wish to press the amendment.
Amendment put and declared lost.
Amendment No. 3 not moved.
(Mayo): I move amendment No. 4:
In page 4, line 10, to delete "and to remain thereafter out of the State" and substitute "for such a period as may be specified in the order and without prejudice to the right to re-apply for permission to re-enter the State".
This amendment refers to deportation orders. Section 3(1) states: "Subject to the subsequent provisions of this section, the Minister may by order (in this Act referred to as "a deportation order") require any non-national specified in the order to leave the State within such period as may be specified in the order to and to remain thereafter out of the State." I am seeking the deletion of "and to remain thereafter out of the State" and the substitution of "for such a period as may be specified in the order and without prejudice to the right to re-apply for permission to re-enter the State". The legislation is sufficiently draconian without specifying that a person must remain thereafter out of the State and conveying the impression of finality. That is too absolute and far-reaching.
The order should be open at some stage to allow a person to reapply for admission to the State. That is why I am seeking the deletion of "and to remain thereafter out of the State" which clearly conveys the impression that a person does not have recourse to a further right of entry or access to the State. I am seeking the insertion in the Bill of a provision that, in certain eventualities, a person can be enabled to reapply to enter the State and have his or her application considered on its merits.
This amendment, which was discussed on Committee Stage, surprises me. If a person is asked to leave the State without being told not to come back, he or she can turn around and come straight back in. That makes the whole process a sham. I understand that people who have been deported may apply from abroad to re-enter the State. If we do not specify that people cannot come back into the country, we will be faced with a revolving door syndrome which will make a farce of the entire process. I appreciate what Deputy Higgins is saying, but the Minister stated on Committee Stage that cases could be re-examined and that people could reapply to re-enter the State.
Amendment No. 4 is opposed. When we discussed this matter on Committee Stage I stressed that a deportation order is not a temporary removal from the State with the option to return whenever a person so wishes as that would be to defeat the whole purpose of the order. A person is deported from the State on the basis that his or her presence here is clearly invalid or undesirable. The intention, therefore, clearly is that the person so deported should remain outside the State. The order must, in each case, state that the person is to go away and stay away. If it simply said "leave the State", there would be nothing to stop an immediate re-entry. Furthermore, an order made in respect of a per son already outside the State would make no sense unless it included the requirement to remain outside the State.
Section 3(11) provides that an order may be amended or revoked. It is open to a person who has been deported to apply from abroad to seek to have an order amended or revoked, in the context of a visa application if the person is subject, under our law, to a visa requirement. Any such person would have his or her case re-examined and the order lifted in circumstances where it was so merited. In this sense, therefore, an order is not necessarily permanent, although it must be said that deportation orders are not lightly made and are rarely revoked, to our recollection. There have been two cases in the past 18 months in which persons, the subject of deportation orders, were readmitted because circumstances had changed in both instances. These points were made on Committee Stage. We also made it plain that a person, the subject of a deportation order, who is removed from the State on foot of that order but who subsequently returns to the State by whatever means and applies for asylum cannot be prevented from making such an application and will have it dealt with to a proper conclusion. This is the position under our existing asylum determination procedures and will remain the position when the Refugee Act, 1996, becomes fully operational later this year.
(Mayo): I am not in any way trying to create a revolving door syndrome where someone banished from the State on foot of a legitimate deportation order can return here immediately. I am merely seeking that such a person would not be precluded from reapplying. The terminology of the Minister's argument seems to be somewhat contradictory. On the one hand, she stated that a deportation order is not a temporary move and that the clear message is “go away and stay away”. On the other hand, she stated that a deportation order would not necessarily be permanent. As far as the deportation order, as enshrined in this legislation, is concerned, it is a case of “go away, stay away and do not even consider reapplying”. The legislation contains no reference whatsoever to the right to reapply.
Deportation orders are made on serious grounds, with the legitimacy of a person's application to remain in this jurisdiction rejected in the courts and orders duly made by the Minister. Where a case has been evaluated in detail, it is obvious that an order must be invoked. I am simply saying that circumstances can change. Our attitude in this country could change. Someone might be banished from the State on grounds that he or she is an economic refugee rather than someone seeking asylum on humanitarian grounds. It could happen, in the context of the Celtic tiger economy, that the person's skills or talents, which he or she hoped would be recognised, might at some stage be in short supply here and the person might be welcomed into the country on the basis of economic requirement.
The attitude of the Government partners to the question of whether work visas should be granted appears fluid. The position internationally may also change. Certain countries are categorised as safe. While Pakistan may appear safe, within it there are different minority ethnic groups which are not being provided with the necessary human rights protection. Should the position change, a person, the subject of a deportation order, may become the victim of a humanitarian atrocity. He or she should be able to make a further application to re-enter the country. The Bill should not be so explicit, definitive, absolute or final.
I understand the Deputy's concerns and refer him to section 3(11) under which it will be open to a person who has been deported to apply to have an order amended or revoked in the context of a visa application.
The Minister of State said an order may be revoked. The Bill states, however, that the person concerned will have "to remain thereafter out of the State". I would have thought the revocation of an order could be challenged on this basis. I support Deputy Higgins.
Section 3(11) reads:
The Minister may by order amend or revoke an order made under this Act including an order under this subsection.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 4, to delete lines 14 to 16.
There are many grounds on which a person may be deported. Section 3(2)(b) reads:
a person whose deportation has been recommended by a court in the State before which such person was indicted for or charged with any crime or offence
I am seeking to have this provision deleted on the principle that a person is presumed innocent until found guilty.
The amendment is opposed. Section 3(2) lists categories of non-nationals who are liable to deportation. The provision at paragraph (b) to make recommendations of deportation in criminal cases is of long standing. It is important for the courts to have this power which is often exercised in the interests of the person concerned. For example, a court may, as an alternative to arriving at a guilty verdict and imposing a custodial sentence, recommend deportation, thus sparing the individual concerned from having a conviction on his or her record and the possibility of a stretch in custody which is not a pleasant prospect at the best of times but known to be particularly difficult for non-nationals.
Persons charged with offences in recent cases have been glad to avail of this provision and include persons charged with prostitution offences and breaches of immigration law. A person in this category is liable to deportation. This does not imply that all such persons should be deported. It depends on the circumstances of each case. For example, a tourist who becomes involved in a serious brawl may be a suitable candidate for deportation whereas a non-national settled here for a number of years may not. The factors to be taken into account are listed in subsection (6) and are designed to ensure the decision is proportionate to the facts of a particular case.
The State should be in a position to deport a person in the circumstances set out in paragraph (b). To delete that paragraph would be to seriously curtail the court's discretion in this area to the possible detriment, not necessarily of the community but in many cases of the individual concerned. These provisions can be exercised in their favour.
As agreed at the select committee, section 3(5)(b) has been amended to ensure the notification procedures will apply to persons where the court makes a recommendation on the basis of criminal charges.
(Mayo): This is an extraordinary provision. It reads:
a person whose deportation has been recommended by a court in the State before which such person was indicted for or charged with any crime or offence
I have no difficulty with a person who has been indicted or, after due process, convicted being the subject of a deportation order depending on the gravity of the offence. I do have a difficulty, however, with the insertion of the words "or charged with". While the Minister of State said there will be no obligation to enforce this provision, the option will be available. As Deputy O'Sullivan said, a person is deemed innocent until proved guilty. If a person is charged with an offence, the courts should be afforded the opportunity of dealing with it and making a determination as to whether the person concerned is innocent or guilty. To deport a person, irrespective of the gravity of the offence, with no right to reapply, is extraordinary. I sought to have the words "or charged with" deleted on Committee Stage to ensure a person would be brought before the courts, charged and convicted. To convict a person without following due process is fundamentally wrong, flawed and unfair.
Let me give an example. Following a disturbance outside a nightclub ten people may be arrested and charged in court. If one of them comes from another country, without following due process, he or she may be deported on the recommendation of the court. Some of the other nine may be found guilty. It may well be the case that the person deported may have been found innocent of the particular charge on the grounds that it was difficult to prove who had taken part in the wrongdoing. That is the aspect of the section about which I am concerned.
It will be a matter for the court to decide what it wants to do in each case. Deputy O'Sullivan gave one example. Let me give another to put the matter in context. A prostitute carrying an east European passport was charged and brought before the court but not convicted. The court applied the Probation Act and deported her. She was thrilled to be deported. There can be cases—
One case does not make good law.
—where the person might be charged but not convicted if one takes into account the application of the Probation Act. By leaving this provision in the Bill, the court has the option which was taken in the case I mentioned.
I wish to press the amendment because the basic presumption of innocence has not been dealt with sufficiently by the Minister of State.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 6:
In page 4, to delete lines 24 to 26.
This amendment relates to deportation orders and seeks to remove paragraph (e) which states: "a person whose application for asylum has been transferred to a convention country for examination pursuant to section 22 of the Refugee Act, 1996". I want to ensure that where people are deported to a Dublin Convention country, they will have the appeals mechanism of the Refugee Act at their disposal. There is a great deal of concern about this.
I referred this morning to another representation I received yesterday in relation to some aspects of this legislation, particularly this paragraph. There are fears about certain relationships between convention countries and other countries and what might happen if a person is deported to those convention countries. There is concern that a person might end up in Algeria, for example, if they are sent to Germany or Britain. People sent to Germany might also be returned to eastern European countries as Germany has certain arrangements with those countries.
A person sent back to a Dublin Convention country should have the benefit of section 22 of the Refugee Act and the legislation should be clear on that. This would ensure that people would not be sent back to a convention country and subsequently be deported to a country where their lives and safety would be in danger.
The Dublin Convention is a sensible means of trying to bring order to the situations of people seeking refugee status in countries throughout Europe. It is ludicrous that a person should apply for refugee status in a variety of countries within Europe so the concept of the convention, where the person applies in just one country, is good.
However, the point raised by Deputy O'Sullivan is interesting. Members have received letters about the situation of people who might be sent to Germany. There have also been letters in the newspapers about this. We also received correspondence on the relationship that might exist between Germany and Algeria. I do not know if this information is correct but it would be strange if the situation were as it is outlined and if there were such a close connection between the German and Algerian authorities. Most people would be concerned about that, given the seriousness of the political situation in Algeria. There has been huge abuse of human rights there, particularly in the case of people being pursued by the state.
Perhaps the Minister of State would outline her views on the relationship that might exist between Germany and Algeria.
I welcome the opportunity to contribute to the debate. If this amendment is accepted, the Minister will not have any means of removing a person who is not entitled to be here in the first place and who should be removed under the Dublin Convention to the appropriate EU state from which he or she travelled. An illegal immigrant or asylum seeker might travel from one country, such as France or Germany, where the person might have applied for asylum and decide, for whatever reason, to move on to Dublin and apply for asylum in Ireland. On making an application it will be discovered that the person has travelled from a signatory country to the Dublin Convention and should be returned to that country.
There would be genuine concern and fear for the person if he or she were to be returned to a country which had not signed up to the Dublin Convention and in which the person would not be afforded appropriate protection. If that was the case, I could understand the necessity for the amendment. However, given that the person would be returned to a country which is a signatory of the Dublin Convention and would, therefore, afford the individual appropriate protection and accommodation, there is no need for the amendment.
The amendment is opposed. It proposes, in effect, that there should not be any means of removing to another Dublin Convention country a person whose application has been transferred there under the convention. This situation would be unacceptable.
The Dublin Convention sets out sensible criteria for determining which of the member states of the EU should deal with an application made in one of them. It has been operating among member states since 1 September, 1997 and since that time Ireland has transferred 33 cases to other convention countries and has accepted 104 asylum applicants back into the State. That accounts for more that 2 per cent of all applications. These are the latest figures available.
I have seen and heard the Dublin Convention described as a means for the State to avoid dealing with asylum claims with which it should be obliged to deal. The figures do not bear this out. However, I cannot accept that it is reasonable for an asylum applicant to be able to shop around, as it were, going from country to country as the claim is rejected in each place. I also cannot accept that it is reasonable that Ireland should be obliged to consider an asylum claim from somebody who already has a claim under consideration in France or Germany, nor should France or Germany be obliged to consider a claim from somebody whose claim has already been dealt with here. That is, nonetheless, the logic behind the Deputy's argument for this amendment.
Each state that is a party to the Dublin Convention reaffirmed its obligations under the 1951 Geneva Convention and related protocol by virtue of article 2 of the Dublin Convention. I am satisfied that the convention is operating fairly and that the deportation power is essential for persons whose applications are transferred under the convention in order to ensure that it continues to operate fairly in the Irish context. Paragraph (e) is, accordingly, an essential part of the Bill.
Under amendments to the Bill agreed on Committee State, the Refugee Applications Commissioner will be responsible for dealing with Dublin Convention cases and the independent Appeals Tribunal will be responsible for all appeals in these cases. With regard to the concerns expressed by Deputy O'Sullivan and Deputy Ryan about relations between EU states and third countries, these are always subject to the international obligations under the 1951 convention. These obligations include the provisions of article 33 of the 1951 Convention Against Refoulement, reaffirmed by article 2 of the convention.
Will the Refugee Applications Commissioner and the Appeals Tribunal, which will deal with Dublin Convention cases, take into consideration in their deliberations not only the fact that a person had first arrived in another Dublin Convention country but also the arrangements that might exist between that country and other countries about which we have expressed concern? In other words, they should not consider that since someone came in through Germany they must go back the same way. They should also consider the human rights concerns that have been expressed by reputable organisations about people being sent back from countries like Germany to places where they may well be in danger.
I can give Deputy O'Sullivan that reassurance. The answer is yes.
In that case I will not press the amendment. We do not want to obstruct the entire operation of the Dublin Convention, but we want to make sure that there is no danger. From what we have been told, I am not too sure that some cases do not get through the loophole. However, the reassurance that that is taken into account is welcome. I hope the points that have been made in the newspapers and elsewhere will be taken into account by those hearing the initial applications and appeals with regard to the Dublin Convention.
On a point of clarification, this would be a decision for the commission as distinct from an officer of the Department. That might further reassure the Deputy.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 7 and 19 are related and may be discussed together by agreement.
I move amendment No. 7:
In page 4, line 36, after "good" to insert "for serious reasons related to the personal misconduct of the person concerned".
We debated this amendment on Committee Stage in some detail. The common good provision should only be invoked against a specific wrong-doer. In other words, it should concern only the activities of a particular person and should not be invoked in a generalised way. This is in line with EU law and I am concerned that it should be included in the Bill.
(Mayo): I support the amendment on the basis that it would seem too much of a blanket provision to leave it entirely to the definition of the Minister, Deputy O'Donoghue, or a subsequent Minister, as to what constitutes the common good. Up to now we have tried to be explicit. We have tried to build in safeguards, particularly for deportation orders where people can simply be deported from the country on the basis of being charged without having been convicted of an offence. We feel that is excessive.
This section seems to be a catch-all provision which depends on the mood and mentality of the Minister of the day who can decide what, in his opinion, is the common good. The wording states: "A person whose deportation would, in the opinion of the Minister, be conducive to the common good." I do not like the lack of specificity in this sweeping provision which is so general and broad-ranging. The inclusion of such a provision leaves great grounds for suspicion about what the intention is.
As regards deportation orders, we should be clear, definitive and specific. We should set down in clear detail the conditions, qualifications and other necessary detail concerning the set of circumstances that will merit the issuance of a deportation order. Inserting a catch-all provision like this is potentially very dangerous.
I support the previous two speakers. The Department of Justice, Equality and Law Reform has a disgraceful reputation in dealing with refugees and deportation issues. It is most unfortunate that the legislation in this area that I published in 1993, before Deputy O'Sullivan was a Member of this House, was voted down by the then Fianna Fáil-Labour Government. Many of the difficulties that are being experienced in this area, including putting together correct procedures, and ensuring that people are dealt with on a humanitarian and common-sense basis and are treated with dignity, would have been put to bed six years ago had the Fianna Fáil-Labour Government not voted down the measure.
I refer specifically to the section we are dealing with, but I am not doing so to create conflict with Deputy O'Sullivan who was not a Member of the House at the time I introduced that measure. I feel extremely strongly about this issue. I personally find that the political games played in the House with this whole area, by the Fianna Fáil and Labour parties, are sickening. I stayed out of the debate for fear of generating unnecessary controversy. I regret that we will not have the time to consider the Bill in full detail on Report Stage.
I do not believe that the Minister or his Department should be given this power to deport non-nationals in circumstances where, in the opinion of the Minister, it would be conducive to the common good. That is the criterion, but it means whatever the Minister wants it to mean at any particular time. On the basis that the Minister will act generally on the advice of his civil servants, it means whatever the section of the Department of Justice, Equality and Law Reform has to say on this issue when a deportation order is being considered.
Historically, the Department has a disgraceful record in these areas, and it is time this was understood. People have been treated appallingly. They have been deported in circumstances under which they should not have been. People have been deported back to countries to which they should not have been deported. This broad discretion should not remain in the Bill. The amendment proposed by Deputy O'Sullivan is as good as any other amendment, although one could use different forms of wording. However, if there is to be a catch-all provision to cover some areas that are not already covered, Deputy O'Sullivan's amendment is worthy of support.
If this provision remains in the Bill as it stands, the legislation will not have the same reforming impact as is intended. I am concerned that this provision will run into serious difficulties with the courts if the Department tries to rely upon it. I would be interested to hear from the Minister a definition of what is envisaged as being an appropriate deportation of a person where the Minister believes such a deportation is conducive to the common good. I am asking the Minister to give me three or four specific examples of circumstances which fall outside all the other provisions that exist, which would indicate that someone's deportation is conducive to the common good. Are we talking about the personality, political views or behaviour of the individual? Are we talking about a situation where the individual may be meritorious but the State might benefit from his or her deportation? What are we talking about? What does the phrase actually mean, beyond giving the Department a broad sweeping provision which allows it to set aside all the other criteria because the deportation "is conducive to the common good"?
I want specific examples of circumstances in which the Minister may rely on this provision. Let us see from the examples whether we know what we are doing or whether the Minister will simply say that "not conducive to the common good" means just that. As this is Report Stage, I will not be able to contribute on this section again and I am sorry for dwelling on this matter at great length. However, if the Minister is not able to provide three or four examples in which this phrase appropriately applies, Deputy O'Sullivan's amendment should be accepted.
I have listened with interest to the contributions concerning this section. I am somewhat satisfied with the line as it currently reads, which is "to be conducive to the common good". I would be very happy if I could foresee the appropriate line or lines to put in its place. Unfortunately, however, we are not in the happy position of knowing what might occur in future and, therefore, what should be in legislation to deal with it. We have all seen this in the past. Some time after legislation has been enacted we realise we have faltered and do not have the appropriate mechanisms. The phrase "conducive to the common good" may be somewhat bland but it covers a wide remit.
Will the Deputy give an example?
Yes. Perhaps the Minister of State will clarify on what basis a Minister would be in a position to make a deportation order which, in the opinion of the Minister, would be conducive to the common good? It has been said that the Minister could do so at a whim. It would be appreciated if the Minister would clarify this, using the quote "at a whim" from the opposite side. I would like to think the Minister would have had a number of recommendations and reports before making such an order, and that the case would have gone through a fairly lengthy procedure involving the Garda, the Department of Foreign Affairs or the Department of Justice, Equality and Law Reform, and that there would be adequate supporting evidence for such a decision.
Where a Minister has made a deportation order or has refused a visa application, the applicant is advised by the Department that the decision is final. In light of the Freedom of Information Act, will these papers be available if requested?
I caution the Oppositon, although I see the merit in inserting after "good" the words "for serious reasons related to the personal misconduct of the person concerned". An example could easily be quoted on that basis. We have recently witnessed very serious criminals totally misleading the Garda Síochána while under investigation. They appeared innocent while serious criminal activity was taking place. They were not personally involved in misconduct but were seriously involved in the overall scam which was not in the best interests of the common good. I think all sides will acknowledge that what I am saying is fact. Given that I had been asked for an example, that is an example of the sort of thing that happens.
Surely we should leave it with the relevant Departments of Foreign Affairs and Justice, Equality and Law Reform to carry out the normal investigation of whatever reports come through the system and if there is sufficient and satisfactory evidence that a deportation order should be made in the interests of the common good, so be it. In that way we would cover ourselves from the type of thing we have witnessed among our own citizens who have been participating in crime at arm's length and have got away with it for a considerable period, much to the annoyance of the public. That is a good example of a person not misconducting himself but orchestrating misconduct that would not be in the common good. That is the reason I do not support the amendment.
The amendments are opposed. These amendments limit unnecessarily the power of the Minister in a situation where it is not possible to predict what set of circumstances might arise which might give rise to the need to deport or exclude a person. Under Section 3 (2) (i), it is important to note that persons in this category and the other categories in subsection (2) must have their cases considered in combination with subsection (6) of this section. The criteria in that subsection already captured most, if not all, of the circumstances where serious reasons related to the personal misconduct of the person concerned would lead to the conclusion that deportation was conducive to the common good. As I stated on Committee Stage, the purpose of paragraph (i) is to provide a residual scope to cater for circumstances not foreseen by the preceding paragraphs. This is precisely in line with the approach suggested by Mr. Justice Geoghegan in his judgment in the Laurentiu case; the case from which the Bill arose.
The Deputy's amendment could be held to rule out the removal of family members of a person being deported on the basis of one of the preceding paragraphs, even though that might be in the best interest of particular minor dependants of the person, although unrelated to their personal conduct.
This residual provision is, as Mr. Justice Geoghegan indicated, necessary so that the common good can be protected against situations which may threaten it even though not specifically foreseen by other provisions of the Bill.
This issue was discussed at some length on Committee Stage in relation to exclusion orders. In relation to amendment No. 19, I am satisfied that the words used in the section 4 as it stands are sufficiently restrictive to ensure appropriate use only of an exclusion order, but at the same time are flexible enough to encompass appropriate use of the provision which is not confined to the personal conduct of the individual and were it to do so would fail to protect us from some very notorious individuals who although not directly involved in atrocities are the masterminds behind them or are so closely associated with such persons that their presence in the State might provide a form of hook on which to hang efforts to pull the undesirable person into the State.
I am including a Report Stage amendment to section 12, amendment No. 80, a provision for parliamentary review of exclusion orders. This will require that all orders made under this section will be laid before both Houses, and gives Deputies or Senators the opportunity, within 21 sitting days, to overturn such an order by motion. This proposal underlines the serious and very exceptional nature of the exclusion order and of its intended use, and acts as a proper parliamentary review of the process which guards against its inappropriate use.
Deputy Shatter's assertion that effectively the Minister can make decisions on a whim is unwarranted and unsustainable. It is all the more odd coming from a Deputy who is a lawyer and is familiar with the doctrines of administrative law and is adept at the judicial review mechanism which acts as a proper check on all administrative decisions, including these. The words clearly do not need any further clarification. Examples of people we are talking about would be people who work illegally in the State, people who violate the common travel area, people who no longer comply with the conditions of the Commission, for example if they came to set up a business and have since given up that activity. It cannot be used arbitrarily and is judicially reviewable. Once a decision is taken by the Minister of the day, the case would be debated by both Houses of the Oireachtas. For all these reasons I am concerned and annoyed at the comments made by Deputy Shatter with regard to the Department and that he said he stayed out of the debate in order not to generate unnecessary controversy. Yet he comes in here with a sledge hammer and makes disgraceful remarks with regard to the Department of Justice, Equality and Law Reform which are incorrect. I am surprised at him availing of an opportunity such as this to take a swipe at the Department.
I want to express my concern where the Minister refers to "circumstances that might arise in the future". That very much underlines our concerns about this section. In effect the Minister has broadranging powers in regard to deportation orders. I accept there are good benevolent Ministers who would not deport a person unless they had sound reasons for doing so. The protection of an individual has to rest in law not in the benevolence of Ministers. That is the underlying point. The Minister is being given broadranging powers in subsection (2). That is why we are seeking to define those powers more specifically in relation to the personal misconduct of an individual.
I am not convinced by the Minister's argument that it is necessary to include such a broad ranging section in the Bill. It could be abused by a Minister with strong personal views who may not take the advice of the Department, the commission or the refugee board to be established by the legislation. It gives too much power to the Minister and I will, therefore, press the amendment.
I reject what Deputy Shatter said about the Labour Party. When Joan Burton was Minister of State she gave a great deal of consideration to the drafting of the Refugee Bill, which is now the Refugee Act, and to what the NGOs had to say. I reject the suggestion that we are playing games with this issue. We are treating it very seriously. I do not see why the Deputy made his point. He attended the debate for only a short time. However, I welcome his support for the amendment. I am not satisfied such wide ranging powers should be given to a Minister in the serious business of expelling a person from the country.
(Mayo): I plead with the Minister of State not to reject the very reasonable amendment in the name of Deputy O'Sullivan. She is seeking to include a safeguard by inserting into the Bill a requirement in respect of the definition of what is conducive to the common good. Subsection (2) lists the categories of persons. We have problems with that. For example, subsection (2)(a) specifies that an order under subsection (1) may be made in respect of “a person who has served or is serving a term of imprisonment imposed on him or her by a court in the State.” A person can be imprisoned in this country for the non-payment of a parking fine. Subsection (2)(b) specifies that an order under subsection (1) may be made in respect of “a person whose deportation has been recommended by a court in the State before which such person was indicted for or charged with any crime or offence.” The subsection lists various other such categories.
Having been challenged by Deputy Shatter, the Minster of State offered some so-called definitions on what could be regarded as coming within her opinion of what is conducive to the common good. These include working illegally here, contravening travel area regulations, etc. Such criteria should be specifically included in the Bill. To allow the Minister decide at whim and depending on his mood, mentality or condition, or in what direction the wind is blowing in County Kerry, is to give too much authority to any Minister, despite the intention that such powers would not be abused. In view of this, I ask the Minister of State to accept this reasonable amendment.
The Leader of the Opposition at one time referred to the word "untouchables". There were people operating in this country who were seen to be untouchable. Their crimes were notorious and they got away with them for far too long, as many young grieving widows of drug addicts will testify. They were not only involved in the drug culture, but also in serious armed raids and cash robberies. They were always at arms length from the horrible tragedies they perpetrated.
Of course we would like to pin down every aspect of legislation. I have no doubt that is the purpose of amendment No. 7 when it seeks to insert the words "for serious reasons related to the personal misconduct of the person concerned". However, given what we have experienced and witnessed, how can we address the untouchables, who carried on their crimes for far too long?
They can be deported under the provisions of the previous subsection.
That is why I support the term "conducive to the common good." set out in section 3(2) (i). We all know the administrative procedures. No sensible Minister will make a decision without adequate evidential support. The Minister of State referred to a new parliamentary procedure that will be available to the House if there is any grievance over a ministerial order. Could she clarify this?
I make no apologies for the comments I made. The Bill is before us simply because the courts have finally forced the Department of Justice, Equality and Law Reform to produce legislation to deal with deportation issues of a detailed nature. Hitherto the Aliens Act has allowed the Department to exercise a broad discretion, which resulted in a large number of cases before the courts. The Department and different Ministers treated people disgracefully and the courts had to intervene to stop the Department.
I also make no apology to Deputy O'Sullivan. Had the legislation I published in 1993 been enacted, it would have addressed many of the issues we are still struggling to address. When Joan Burton was Minister of State she cogitated on the issue from 1993-95, produced a Bill, but was then incapable of bringing it into operation.
The examples provided by Deputy Callely relate to EU nationals who were untouchable in this State because we did not have the Criminal Assets Bureau. They could not be deported under this legislation. We do not have a group of South American gunslingers sitting in the hills of Counties Dublin, Cork or elsewhere, directing criminal activities that others are conducting. That problem is being solved by the Criminal Assets Bureau. The people to which the Deputy referred have nothing to do with deportation orders. They were EU nationals who were entitled to live in this State and they will continue to be entitled to live here. If they engage in criminal activity there is now a mechanism to ensure they are taken to the courts and dealt with properly. None of that is a reason for giving the Department yet another broad discretion to deport people in certain circumstances.
I was providing an example of the untouchables.
I cannot understand Deputy Shatter's interventions. He says the High Court judgment is the reason for the Bill. At the same time, he seeks to depart totally from the judge's recommendations. The legislation seeks to be in line with the High Court ruling. The judge set out in clear terms what the legislation should contain, including the residual provision covering the common good.
Deputy Higgins spoke about the wind blowing in from County Kerry. Some wind blew in to the Chamber when Deputy Shatter arrived with a sledge hammer and clobbered the Labour Party, my Department and everybody else. Such comments are not helpful when dealing with legislation.
In response to Deputy Callely, I again confirm that we have included a Report Stage amendment to section 12 to deal with a parliamentary review of exclusion orders. When the Minister makes an exclusion order decision, both Houses will be in a position to debate it within 21 sitting days, regardless of what way the wind is blowing.
Amendment put and declared lost.
Acting Chairman
Amendment No. 46 is related to amendment No. 8 and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 8:
In page 4, between lines 36 and 37, to insert the following:
(3) Pending the making of a deportation order any person who has applied for asylum and who has been in the State for over 3 months may apply for and be granted a work permit by the Minister for Enterprise, Trade and Employment notwithstanding any con dition imposed by the Department of Justice, Equality and Law Reform.
Asylum seekers who have been in the State for more than three months should be entitled to apply to the Minister for Enterprise, Trade and Employment for a work permit. I welcome the fact that many members of both Government parties support the right to work for people who seek asylum. There is a strong argument in favour of granting the right to work to such people.
Arguments have been put forward on the basis that there are jobs to spare and it is difficult to recruit people to fill them. Many asylum seekers who await the hearing of their cases have the skills required to take up available jobs. On Committee Stage, the Minister of State said that it would be racist to give them jobs because some might not be skilled enough. It was the most convoluted argument I have ever heard against granting the right to work.
People who wait for long periods for their cases to be heard cannot work and it creates the impression that they are living off the State. This contributes to racist attitudes, but they want to live and work here. They have skills and are capable of taking up many of the jobs that are available and they should be granted the right to work. As long as they do not have that right, the racist attitude of certain people will continue, given that they regularly encounter asylum seekers in health board supplied accommodation or bed and breakfast accommodation and see them walking the streets because, naturally, they have time on their hands since they cannot work.
Asylum seekers should be granted the right to work and no argument can be made against it. Last Tuesday there was a demonstration outside the gates of Leinster House to grant the right to work to asylum seekers and that should be supported. There are plenty of jobs here, yet FÁS is recruiting people in other European countries to fill jobs here that could be filled by asylum seekers.
However, we must ensure that our unemployed people who may not have the necessary skills, training or education are given the attention they need. It is not an either-or situation. We need to deal with our own unemployed but we also need to give an opportunity to asylum seekers who have the necessary skills to take up the wide range of jobs that are available. A mix of low skilled and high skilled jobs is available. Many asylum seekers have computer skills, for example, and could take up IT positions while others have different skills. They should be granted the right to work.
Acting Chairman
I remind Members that we are dealing with amendment No. 8. A total of 82 amendments have been tabled and the debate is due to conclude in less than 30 minutes. I ask you to be brief in your contributions so that we get through as many as possible.
(Mayo): You have made the case most eloquently, a Chathaoirligh, in terms of the damning denunciation that everybody has heaped on the Government for the manner in which it has handled this legislation. Deputy O'Sullivan has made the case well in regard to the amendments. The policy of not allowing skilled people, who genuinely want to work and make a positive contribution to the economy, pending the determination of their asylum applications, to join the workforce is calculated to whip up hysteria, xenophobia and racism .
Headlines have been printed about refugee spongers and wild hysteria has been generated by irresponsible comments regarding so-called criminal activity by these people. There has been little evidence of that apart from the odd case where some refugees were hauled before the courts for committing a crime or two. IBEC, which represents big industry, and ICTU, which represents the welfare of workers, were unanimous in urging the Government to introduce a policy which would allow these people to work and contribute to the economy on the basis that there is a skills shortage and their skills are needed. There is clear evidence that the majority of asylum seekers who enter Ireland have qualifications, skills and talents and would be able to make a much needed contribution to the economy while at the same time, as Deputy O'Sullivan stated, saving the Exchequer considerable money in terms of the resources which must be found, particularly by the Eastern Health Board, to assist them during their stay here.
When will the political ping-pong stop between the two Government partners on this issue? On the one hand, the Tánaiste and Minister for Enterprise, Trade and Employment and the Minister of State at the Department of Foreign Affairs said, "yes, we will" while, on the other, the Minister for Justice, Equality and Law Reform said, "no, we will not". The right of asylum seekers to work should be granted in order to end the current prevarication once and for all. Different intentions have been enunciated by the two senior Ministers.
The Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, stated that a decision would be made in due course while the Minister of State at the Department of Justice, Equality and Law Reform was more forthcoming yesterday evening. However, at the same time there is no clear indication that a long overdue and sensible provision to enable these people to work and dignify their existence will be implemented .
I cannot understand, given the huge consensus among employer and employee representatives and indeed the positive attitude of the public, why there is intransigence on the part of the Government in dealing with this fundamental human right.
(Dublin West): The opposition by the Government to this amendment demonstrates a continuation of the mean spirit with which it has approached the question of the rights of people seeking refuge in this State. The denial of the right to work, a basic human right, to asylum seekers is mean and offensive. If one put oneself in the shoes of any asylum seeker going through the application process and forced to languish on the dole, depend on hand outs from the State and endure taunts from certain elements that they are spongers, one can imagine that their human rights and dignity are grievously offended.
The Government is sitting firmly in the trenches and refusing to budge despite the huge support for the few thousand people involved to have the right to work. Can anyone imagine how those people – many of whom have qualifications although that is irrelevant because all humans have talents – must have felt recently when FÁS announced that it intended to trawl through EU countries, seeking people it could lure back home to fill jobs which cannot be filled at present? This is happening while people with many talents who could fill some of the job vacancies are sitting in enforced idleness. One can imagine the offence to people's dignity.
It is particularly offensive for the Government to take this stance in view of the history of our emigrants. They left Ireland but they were immigrants, looking for work, in every country to which they went. Hundreds of thousands were provided with employment and befriended by people in a position to give them jobs. They were given work and a start on their new lives. Yet this Government wanted to introduce legislation to provide for ten year jail sentences for people who gave jobs to individuals who were not in the country legally. This is incredible and flies in the face of the history of our people.
In the 1980s colleagues of the Minister crossed the Atlantic and went on bended knees to the United States Administration, asking it to legalise the status of the thousands of young people who were working there illegally. That happened, but this is how a few thousand people who have been cast at our mercy are treated. In view of the humanitarian arguments and the human rights and dignities involved, perhaps the Government will change its mind at the last minute.
I support amendment No. 8. It is most regrettable that the Government has once again set its face against the just demand of asylum seekers for the right to work. Hundreds of asylum seekers are ready and able to work, but they are denied this right and many of them protested outside the gates of Leinster House in recent weeks. This reasonable amendment would ease the financial and social burden of asylum seekers. It would allow many, including highly qualified and diligent people who can contribute to the economy, to come off social welfare.
I deplore the manner in which the Government has dealt with the issue of asylum and particularly the right to work. It is running scared of the wider issue of immigration which, as other Deputies pointed out, is not properly legislated for at present. This legislation, which should be called the deportation Bill, is the latest manifestation of the uncaring attitude to asylum seekers, refugees and immigrants. This attitude is in the ascendancy on the Government benches. If the Bill concerned the import and export of cattle, it would have received more consideration from the Government and would have received more time for it to be properly and thoroughly debated in the House.
I am reluctant to interrupt the Deputy but the House is dealing with an amendment and I would appreciate it if he addressed it rather than making a Second Stage speech. The debate must conclude at 2.15 p.m. and other Deputies wish to speak.
This is the first contribution I have made on this Stage and I will conclude.
Acting Chairman
I am restrained by the order of the House. We are dealing with Report Stage and a particular format must be followed for the amendment. I am conscious that other Deputies wish to speak so perhaps the Deputy could curtail his contribution.
I will come to a conclusion quickly to accommodate your concerns. I am opposed to the disgraceful manner in which the Bill is being rushed through the Dáil before the summer recess. This point is worthy of note because the obvious purpose is to allow deportations to proceed. Will they start tomorrow and continue throughout the summer recess? If so, it would be most convenient that the Minister and his colleagues would not have to face the ire and awkward questions of Deputies.
There is only one appeal I can make in support of the amendment. I wanted to interject on several other occasions during the debate but I was cognisant of the fact that the House is heavily restricted in relation to time. I did not contribute to that situation and I strongly resent it. I urge the Minister of State to accept this important amendment which would help ease the misery of many asylum seekers and at least give them back their dignity.
The only sad reflection on the necessity to table the amendment is that genuine asylum seekers must wait many months and years for a decision to be made on their applications. I hope the House will send a clear message to the Department in that. My main wish is for asylum applications to be processed as rapidly as possible. This would filter out of the system illegal immigrants who have no right to be in Ireland in the first place and benefit genuine applicants. It would be in everybody's interest.
The argument which is always put forward in press releases from various organisations is that this change is necessary in light of the current skills shortages. However, it would not be fair to fill a vacuum for the country's benefit by grabbing a group of people and giving them work permits in the short-term. I am also concerned that if individuals were offered work permits, they would be given false hope. They might feel that they had climbed another rung on the ladder and were in a position to set up home properly because they had jobs and incomes. This would appear practical but it is in everybody's interest to have a revolving door in asylum applications. They should be addressed and adjudicated upon rapidly. I favour due process and appeal procedures, but the current long delays are unacceptable. I would prefer the matter to be addressed from that angle.
It is important to acknowledge that a large number of non-nationals are contributing to the economy and participating in the workforce. We benefit from the participation of these non-nationals, but they do it through the appropriate channels and obtain appropriate work visas. Such mechanisms are in place.
I have a particular interest in people with disabilities and it was brought to my attention that 80 per cent of people with disabilities are unable to find employment. I do not hear people shouting on their behalf or saying they should be given an opportunity to work.
The Deputy should not set one group against another.
(Dublin West): Deputy Callely is completely wrong.
That is the Deputy's view.
It is the Minister of State's job to address that matter.
Acting Chairman
Deputy Shatter, I will call you next. Deputy Callely without interruption, please.
I see the benefits which can accrue from the participation of non-nationals. They are currently participating through the appropriate channels and I would like to see such participation increase in that way. It is still taking an unacceptable length of time for asylum seekers' applications to go through due process in the Department. I am not satisfied with this and the House is aware of my continued inquires in this regard. We should concentrate our energies and efforts to ensure that when a person applies for asylum—
Acting Chairman
The amendment concerns the granting of work permits and we should stick to that debate. There are many amendments to get through.
Unfortunately I cannot support the amendment because it would give an asylum seeker false hope if, after going through due process, his or her application was unsuccessful. It would create a lot of difficulties and would be unfair. It is also unfair that asylum seekers must rely on benefit from community welfare officers or the Department of Social, Community and Family Affairs for a considerable period. Asylum applicants come here because they need the protection of the State, not necessarily to make themselves available for work.
Having made life difficult for the Minister of State I commiserate with her because on occasion her friends create more problems for her than do her opponents. Deputy Callely never seeks to amaze me with his lack of sensitivity and insight in dealing with issues of this nature. He said he wanted a revolving door asylum policy, by which I think he means applicants should come in one door and go out of the State through another.
That is not what I said, I called for due process and appeal procedures.
I spoke earlier about the Department's approach. We need to deal with people coming to the State with a degree of humanity and common sense in the manner we would like our people to be treated when they seek work outside the EU.
Yes.
We have an obligation to ensure that people coming to this State as refugees, which is a small number compared to those going to other EU countries and exceedingly small compared to the number who emigrated from this State, are treated with decency and common sense. That common sense requires that people who have come here seeking safety and asking to be allowed to stay should be allowed, within a reasonable period of coming here, to work while awaiting a decision to be made. People seeking refugee status and refugees seeking asylum in the State have waited for up to four years. Deputy Callely does not want them on social welfare, nor does he want them to work, he wants them to starve pending the Department's decision.
I did not say that.
We should do as the amendment proposes. Anyone seeking asylum who has been here for more than three months should be allowed to work in the State. To suggest that allowing them to work gives them a "false hope" is an extraordinarily asinine argument. Allowing them to work allows them the dignity of earning a living while awaiting a decision about their future, no more and no less than that.
I do not know how many refugees Deputy Callely has spoken to but I have talked to quite a number. We are fortunate in this country to have hundreds of well qualified refugees who could make a substantial contribution to our economy and who, rather than living off the State, want to be allowed to work here. The vast majority of them do not want to live off handouts, they want the dignity and self-respect of being allowed to work and earn a living. This antediluvian, recalcitrant, conservative Department is denying them that right because of a policy which has been part of the State's approach to refugees since its foundation. This runs counter to a policy which the Tánaiste wants to implement. The Minister and Minister of State are sticking rigidly to their policy, but it is wrong. It is being exacerbated, in humanitarian terms, by what Deputy Callely rightly complained of, namely, the scandalous delays in processing applications, for which there is no defence.
I hope the Minister reconsiders the Government's approach to this amendment. I regret that the Bill is being rushed through. The Minister of State has presumably received her instructions from the Minister, who is doing other important work elsewhere, and she probably does not have the discretion to consider what is said by Members or to take amendments on board. If she accepted amendments which her senior colleague had not sanctioned she might be in serious political difficulties. We are merely going through the form of a debate on these issues. We are not really discussing them or engaging in dialogue but in serial monologues with no possibility that what the Opposition proposes will be accepted. I am used to this form of debate in the House and it has made me equally as cynical as the vast majority of the public. However, we are getting this issue tragically and disgracefully wrong. This has been aired in public debate for over three years and the people have a view on it, as do the major unions and employer organisations. Even if there was no consensus on this we would have a political obligation to do the right thing, which is to allow people seeking asylum to work.
Given the new economic climate in which we operate, it is time this country had a green card system to allow a number of people per year from outside the EU to come here to obtain jobs. It is time we gave others the same measures which we have begged the United States to provide to our emigrants to that country. We are now in a different world but sadly the Minister for Justice, Equality and Law Reform has not yet entered it and has not come to terms with the realities of Ireland in the second half of the 1990s.
This amendment should be taken on board and should not be guillotined, and the Minister of State should have the discretion to accept it. That this is to be voted down by the Government casts a spotlight on the political impotence of the Progressive Democrats in making a serious impact on human rights policy issues. Last Saturday saw a one day conference on human rights, organised by the Minister of State at the Department of Foreign Affairs. It considered human rights issues across the globe, but we will have no credibility in such matters until we recognise that to be allowed to work is a human right in this State for people who have sought sanctuary here and are seeking the right to stay here permanently. Allowing them to work would give them some of the dignity they are seeking.
I will not go over the debate already gone over during the other Stages of the Bill, and which was articulated again today. I make one final plea, however, for some explanation why this measure is not being allowed. It makes sense. It has been said repeatedly by all of us, and it is the experience of many of us, that the Irish people left this country to seek work. We may not have been refugees but certainly after the famine people left here to seek a life free from disease and death. We have a history of emigrating, both legally and illegally, to other countries and, in more recent years, our young people had to emigrate and remain illegally in other countries because we could not employ them here.
Now that we have a vibrant economy it is important that we do not deny people the right we were denied to emigrate to another country. People who emigrated from this country were afraid to go to a doctor or a hospital because they were in the country illegally. I am not talking about the 1930s or the 1940s but the 1980s and many of those people now have an opportunity to come home. We have an opportunity to recognise that morally, politically and economically.
As Deputy Shatter said, we can ensure that people with skills and qualifications who seek sanctuary in this country feel valued. These people have been damaged and we all know that the greatest boost we can give to their self-esteem is to allow them work for remuneration and contribute to the society in which they live. Not being allowed to work is an enormous disadvantage. We have now reached the ludicrous stage where we cannot even recruit people with translation skills, which many of the people seeking refuge need.
We have been an insular nation on the edge of the Atlantic for too long. We have sought our own fortunes, legally and illegally, over the centuries. This is the first time in our history, economically, that we can open our doors to desperate people with whom we can share a need and a value system. I ask, even at this late stage, that this Bill be allowed to go through the House before the summer recess. Guillotining the Bill is unacceptable and the Minister of State should at least accept this amendment.
The right of asylum seekers to work is under consideration by the Government, and its decision will be announced in due course in the normal way. This was indicated recently in an Adjournment debate in response to a matter raised by Deputy Howlin and again on Committee Stage. It is a matter of public knowledge that the question of whether asylum seekers should be granted permission to work is being considered by the Government. All of the factors which need to be taken into account are being considered in assessing whether the existing position, which is that asylum seekers are not allowed to work, should be changed.
Deputies will be aware that a spectrum of views exists in any Government on issues of this nature. At the end of the day, the Government will conclude deliberations on this important policy issue and will observe collective Cabinet responsibility for the matter when it is decided upon.
Deputy Shatter referred to the small number of asylum seekers here but I advise him that we are the third highest in the European Union in per capita terms.
In relation to Deputy Callelly's point, the Minister's declared aim is to ensure that every non-national who is genuinely in need of the protection of the State is recognised as such as soon as possible after arrival here so that they can take up the rights to which they are entitled. The Government has put in place more than 140 staff to deal with asylum applications. The majority of that staff has been in place since May 1998 and, on the basis of current numbers, the backlog will be eliminated by July of next year. In 1998, 168 people were granted refugee status and by 31 May 1999, 184 people had been granted status which is an improvement in terms of the numbers being dealt with. The aim is that by July of next year, 95 per cent of new case will be fully decided upon within six months of application. That might put in context the debate we are having here today.
What about the extra cases?
It is important to remind Deputy Shatter in particular that those who have applied for asylum in the State are seeking to remain here on the basis that they are in need of the protection of the State, and not on the basis that they are available to work. The only relevant criteria, accordingly, are those set out in section 2 of the Refugee Act. It does not matter whether the applicant is a brain surgeon or a road sweeper. What matters is whether the person has a well-founded fear of persecution.
On the green card system of immigration to fill available jobs, the Minister is on record as saying he favours examination of this system to facilitate immigration of some kind. Already there have been changes in this regard but that is a separate issue to the question of asylum seekers being allowed to work.
Examining something is one thing; making a decision on it is something else.
(Dublin West): Should all our young people who emigrated in the 1980s be deported from the United States?
As it is now 2.15 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That amendments set down by the Minister for Justice, Equality and Law Reform not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed."
Question put.
Tá
|
Ahern, Michael.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cullen, Martin.Daly, Brendan.Davern, Noel.de Valera, Síle.Dempsey, Noel.Dennehy, John.Doherty, Seán.Ellis, John.Fahey, Frank.Fleming, Seán.Flood, Chris.Foley, Denis.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia. |
Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael.Kitt, Tom.Lawlor, Liam.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.McGuinness, John.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Flynn, Noel.O'Keeffe, Batt.O'Keeffe, Ned.O'Kennedy, Michael.O'Malley, Desmond.O'Rourke, Mary.Power, Seán.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Treacy, Noel.Wade, Eddie.Wallace, Mary.Walsh, Joe.Woods, Michael.Wright, G. V. |
Níl
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Ahearn, Theresa.Barnes, Monica.Barrett, Seán.Bell, Michael.Belton, Louis.Bradford, Paul.Browne, John (Carlow-Kilkenny).Bruton, Richard.Burke, Liam.Burke, Ulick.Carey, Donal.Clune, Deirdre.Connaughton, Paul.Cosgrave, Michael.Crawford, Seymour.Creed, Michael.Currie, Austin.D'Arcy, Michael.Deasy, Austin.Deenihan, Jimmy.Dukes, Alan.Durkan, Bernard.Farrelly, John.Ferris, Michael.Finucane, Michael.Fitzgerald, Frances.Flanagan, Charles.Gilmore, Éamon.Gregory, Tony.Hayes, Brian.Higgins, Jim.Higgins, Joe. |
Higgins, Michael.Hogan, Philip.Kenny, Enda.McCormack, Pádraic.McDowell, Derek.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.McManus, Liz.Mitchell, Jim.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Noonan, Michael.Ó Caoláin, Caoimhghín.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Owen, Nora.Penrose, William.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stanton, David.Timmins, Billy.Wall, Jack. |
Tellers: Tá, Deputies S. Brennan and Power; Níl, Deputies Barrett and Ferris.
Question declared carried.
Bill reported with amendment and passed.