We are resuming on amendment No. 15 which is being discussed with amendments Nos. 16 and 17:
Illegal Immigrants (Trafficking) Bill, 1999: Report Stage (Resumed) and Final Stage.
Debate resumed on amendment No. 15:
In page 7, lines 35 to 38, to delete all words from and including "be" in line 35, down to and including "and," in line 38.
–(Deputy Howlin).
Mr. Howlin: I hope I made a convincing case to the Minister. The import of amendments Nos. 15 and 17 is to modify the Minister's proposal in section 5(2)(b) relating to applications for judicial review. I have outlined the case as best I can. Amendment No. 15 seeks to ensure that the normal provision where judicial review is applied for ex parte is maintained for all applications, including those related to asylum. Amendment No. 17 seeks to substitute “is an arguable case”, to allow for normal grounds for application for judicial review, for “are substantial grounds”. It would mean putting a much higher level of case if the Minister's proposals are accepted. This applies only to planning matters. It is an important area of civil liberties and human rights and it is important that we do not set hurdles for access to judicial review which are higher than any other procedure in our law or administration. I have heard no coherent reasons to date that these particular hurdles should be put in place. I hope my arguments are convincing to the Minister.
In conclusion, either the Minister can coherently and comprehensively argue why the uniqueness of the asylum issues require these higher hurdles to be put in place or he argues that there is a deficiency in the general administration procedure for judicial review, and the same should apply to all. He has done neither to date and I await his response.
(Dublin West): My amendment No. 16 seeks to remove from the Bill the provision that asylum seekers are requested at the stage of application for judicial review to present substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed. It is wholly wrong that any such provision would be included in any law of this land. I object to having these measures dealing with people seeking asylum inserted in the Illegal Immigrants (Trafficking) Bill on the day following the appalling tragedy at Dover when 58 Chinese nationals suffocated while attempting to get into Britain. It is particularly inappropriate that the Minister should have mixed up measures dealing with the gangsters who traffic in human beings and make massive profits from that with the victims of those gangsters, the suffering and vulnerability of whom we have tragically seen in the past 24 hours. The Minister should pause and think again about inserting into the Illegal Immigrants (Trafficking) Bill measures strictly curbing the rights of innocent asylum seekers.
It is an appalling precedent for the Government to insert into the laws of the land a method of dealing with asylum seekers which is second class in the extreme to the normal treatment before the law of citizens of this country. It is discriminatory, unfair, invidious and a very bad departure on the part of the Government. It is clear from custom and practice as it has developed in the courts in the past ten, 15 or 20 years that everyone who comes before the courts, regardless of their nationality, should be treated equally. Article 40 of the Constitution states that people shall be treated fairly in the eyes of the law in having access to the courts. It is clear also from Article 16 of the United Nations Convention on Human Rights that the Government is in breach of that article. The section dealing with access to the courts states that a refugee shall have free access to the courts of law in the territory of all contracting states. A refugee shall enjoy in the contracting state in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts. The United Nations High Commissioner believes that asylum seekers should have the same rights and guarantees as refugees. Therefore, the Minister is in breach of these conven tions, imperfect though they may be. The measure of protection afforded by these conventions is being breached by the Minister in this legislation.
The reason the Minister has included in this Bill the provision severely limiting access to the courts to asylum seekers rather than in an immigration Bill or the Refugee Act is because it would not stand up to the scrutiny of the courts. If it was inserted into the Refugee Act, it would be in direct contradiction to the Schedule of that Act, the United Nations Convention on the Status of Refugees, which I quoted.
Barristers who appeared before the Joint Committee on Justice, Equality, Defence and Women's Rights stated that any statutory restriction on the right of judicial review must be interpreted in the context of the object and purpose of the Act. That is why the Minister drags it into the Illegal Immigrants (Trafficking) Bill instead of inserting it into other legislation where it would clash with the rights that have to be granted to asylum seekers and refugees.
How does the Minister expect that a substantial case can be presented within 14 days of a decision? With so much resting on a judicial review, barristers presenting the case for the applicant would have to make the substantial case at the point of application for judicial review. That will take up a considerable amount of time. They will have to present virtually the full case because to do otherwise would risk weakening it and if there was an unfavourable decision, the last resort is then finished. Many asylum seekers will be dependent on the free Legal Aid Board to make their cases. How does the Minister believe an applicant who has been refused asylum will have time to contact the Legal Aid Board in Cahirciveen – which is grossly under-funded – and get proper representation within 14 days? It is an incredible provision.
The implication behind the reduction of the time for judicial review to 14 days is that cases appealing decisions made by the Minister are vexatious and without merit. It was clearly demonstrated by the lawyers who appeared before the committee that 30 such cases had already been taken and that there had been an arguable case and reasonable grounds in all of them. No case was thrown out – the Minister won one case and settled or lost the others. What evidence is there that vexatious cases have been taken when the Minister either settled or lost? The only conclusion is that the Minister for Justice, Equality and Law Reform is taking the appallingly crude advice of a fellow constituency TD that these unfortunate people should be shown the way out as quickly as possible.
This provision is entirely unjust and unprecedented. As Deputy Howlin pointed out, only in planning law has there also been a foreshortening of the time period for a judicial review and the reduction there is to two months. In planning we are dealing with land and buildings while here we are dealing with people with human rights, who have lost a great deal already and who have a future in front of them. The Minister, by including this provision, severely curtails their rights and their ability to be heard by the courts in cases where he has refused their applications.
(Mayo): I will be brief because I would like to hear the Minister's reply to the cogent arguments put forward by Deputies Joe Higgins and Howlin. I remind the House of the manner in which the former Independent Appeals Commissioner, Peter Finlay, was so incensed by this provision, and the manner in which the Minister has attempted to graft a whole new dimension on to the Bill, that he felt compelled to appear before the joint committee and offer his view on how this flouted the constitutional rights of asylum seekers. He also referred to the practicalities of the Bill, describing it as lamentable, inoperable, uninspired and ill considered.
Not to mention misguided, hysterical and bad law.
(Mayo): As I said on Committee Stage, it would be hard to find seven more apt adjectives to dismiss something as thoroughly flawed, something the Minister sees as fundamental to the regulation of the inflow of immigrants to this State.
Not alone is the Minister determined to remove the constitutional rights of people by reducing the time for judicial review from three months, as it remains for Irish citizens, to 14 days, he is now determined to move the goal posts again by changing the requirements for judicial review. Three weeks ago, a brave man called Dennis Riordan had the courage to go before the High Court to seek a judicial review of the appointment of Mr. Hugh O'Flaherty to the vice presidency of the European Investment Bank. He appeared before Mr. Justice Peter Kelly, who decided that there was a case to be heard on the basis that Mr. Riordan had an arguable case. The grounds required for a judicial review of an appointment to the vice presidency of the European Investment Bank are an arguable case. We are talking about the fundamental human rights of the people such as those who were unfortunate enough to be on the ferry from Zeebrugge to Dover yesterday or those who have come into member states by various methods to seek humanitarian protection. We are not prepared to allow them the constitutional protection we give to our citizens.
By ploughing ahead regardless, the Minister is thwarting his own determination to bring in the legislation. The lawyers who came before the committee are adamant that this is unconstitutional, Mr. Finlay believes it is unconstitutional and most people outside who are up to date on these matters agree. By introducing two new areas to the Bill, the Minister is frustrating measures we would commend. We were all in fav our of a Bill to end the commercial exploitation of human misery. A fundamentally good Bill has been destroyed by the Minister's determination to graft on provisions which have changed the thrust of the Bill. The Minister cannot say he was not warned.
Amendment No. 15 seeks to remove from the Government the requirement that applications for leave to seek judicial review are to be on notice to the Minister, as distinct from being ex parte as is the position at present. It is an essential element of the Government's proposal that the Minister of the day be in a position to argue from the outset as to whether leave should be granted for judicial review in particular cases. It is relatively easy, on the basis of selective presentation by an applicant's lawyer of the facts of a particular case uncontroverted by a proper representative of the respondent in the case, to persuade the court that there is a substantial case for permitting judicial review of a decision or step taken. Deputy Howlin seemed to believe that, in some way, this was meant as a criticism of barristers who present cases.
I merely quoted what the Minister said on a previous occasion.
It is not meant as a criticism, it is merely a statement of what actually happens. Court records show that, without doubt, applicants' lawyers engage in selective presentation. I am not making an allegation or an accusation, I am merely stating the facts. However, I intend no criticism of a particular barrister. Any advocate must do his best for his client.
If there is a dispute as to the facts on which the applicant bases the application for judicial review, if there are substantial gaps in the facts put before the court or if there are arguments to be put before the court as to why leave should not be granted in a particular case, it is vital and fair that the court should hear the other side when the application for leave is made in order that it can arrive at a balanced view and make its decision accordingly. It should be remembered that the court is being asked, at this point, to decide that there is real substance on which to base the grant of leave to seek a judicial review. It is not enough that arguments which are merely plausible are offered, particularly when based on a presentation of the facts which can be expected to favour the applicant's side of the case.
The purpose of the provision is to ensure that if the processing of a person's case – be that the consideration of a deportation order, the removal of an asylum applicant to another Dublin Convention country to have the application considered there or the substantive consideration of an asylum claim in the State – is to be delayed, perhaps for a considerable period, pending the outcome of High Court proceedings and possibly appeal proceedings in the Supreme Court, then there are substantial reasons to justify that delay. In that context, this provision should not be presented merely as a measure for asylum seekers. A substantive reading of the subsection makes clear that not only does it relate to asylum seekers, it also relates to others of a different status.
To whom does it apply?
That being the case, it is important that the court should have marshalled before it, at the earliest possible opportunity, the relevant facts and the arguments of both sides so that it can decide whether the basis for any potential delay is substantial.
Deputy Howlin inquired to whom the provision also applies. I wish to correct what I said earlier by stating that a person's claim will be determined by the time he or she seeks a judicial review into whether the procedures were properly observed.
To what category of people other than asylum seekers would it apply?
It relates to people who are the subject of deportation decisions, illegal immigrants and those who are being deported for other reasons. However, to suggest that it applies only to asylum seekers is clearly wrong.
(Mayo): There are only about a half dozen of the type of people to whom the Minister referred living in the country at present.
It should not be the case that the first the Minister or his officials or the Refugee Applications Commissioner or the Refugee Appeals Tribunal know of an application for judicial review in these areas is a report in the following morning's paper. The ex parte grant of leave to seek judicial review under present conditions means that, at a minimum, there is a delay of three weeks. The grant of leave ex parte in these cases at present is, it seems, appealable only to the Supreme Court. Such appeal proceedings could add considerably to the delay. Accordingly, in order that the High Court can arrive at a proper decision on whether there is sufficient substance to the applicant's argument to warrant postponement of further action on his or her case, it is essential for the court to hear both sides on that aspect of the matter at the very beginning. It is perfectly reasonable that the court should hear the other person's side of the case at this point. I see no difficulty with that.
Amendments Nos. 16 and 17 go even further in their provisions by seeking to remove, in the case of amendment No. 16, the requirement that leave to apply for judicial review not be granted unless there are substantial grounds, or, in the case of amendment No. 17, that "an arguable case" replace the requirement to show substantial grounds. Neither approach is acceptable.
The continued processing of a case in the immi gration or asylum area should not be delayed by the existence of court proceedings unless there is a substantial, not merely an arguable, case to be made which would justify such delay. Nor can I accept that this provision be dispensed with entirely. To do this would make little sense in the context of the cases covered in this scheme of judicial review.
The courts have already given dicta on the meaning of the phrase "substantial grounds" in similar statutory contexts. The effect of the judgments to date is that the grounds in question must be reasonable, weighty and that they must not be trivial or tenuous. It has also been determined by the courts that, regardless of the importance of the issue involved, a ground cannot be substantial if it cannot succeed. That is logical. These clarifications by the courts of this expression confirm the appropriateness of substantial grounds as distinct from merely an arguable case as a basis for allowing court procedures to delay the progress of particular immigration or asylum cases.
Let us consider, for example, the deportation process under the Immigration Act, 1999, which sets out a detailed step-by-step process for dealing with persons who are liable for deportation. That process culminates either in the making of a deportation order or in permission to remain in the State being given or renewed. The steps are, in broad terms, as follows: first, the person in question is formally notified that deportation is under consideration, informed about the reasons for its being considered and invited to make representations as to why a deportation order should not be made; next, once the time for making representations is exhausted, the Minister must consider all aspects of the case, including the list of considerations set out at section 3(6) of that Act, and taking into account whatever representations have been made; then, if the Minister decides that the person should leave the State, a deportation order is made, and the person is notified of the order and told to report on a specified date to the authorities so that the departure can be arranged.
The process to which I refer is generous. It affords the person in question the opportunity to make out the best case possible to the Minister and for the Minister to take that case into consideration. The typical duration between commencement and conclusion of the process is 11 weeks, or just under three months. The person in question can, at any stage of that process, seek judicial review of the steps taken thus far in the case. If a merely arguable case were put to the High Court that there has been a procedural defect in the processing of the case so far or if, as Deputy Joe Higgins's amendment proposes, no grounds whatsoever had to be shown, the existence of the judicial review proceedings could serve to postpone the final outcome for many months – in some cases the period of delay could be as long as two years – regardless of whether there was a procedural flaw in the first instance.
Under the section as it stands, the careful and painstaking process leading to the final decision – whether that be to deport or otherwise – will be delayed only in cases where the court is satisfied that there is a substantial case to be made that the step under challenge was procedurally unsound. That is a sensible basis for permitting delay in the process and for ensuring that there is no unfair treatment of the individual concerned.
Amendments Nos. 15 and 17 in Deputy Howlin's name seek, in effect, to retain a procedure in immigration and asylum cases which applies also to all kinds of unrelated cases. Deputy Joe Higgins's amendment would go further and allow judicial review proceedings on demand without any grounds whatsoever. The continued application of the current, necessarily general, provisions to immigration and asylum cases, as distinct from the provisions of section 5 designed to meet the specific requirements of such cases, is unwarranted for reasons which I have already outlined.
The law will work better from the point of view of the administration of justice and fairness to all parties on the basis of substantial grounds for judicial review determined by the court at the preliminary stage on the basis of facts and arguments from both sides, as section 5 proposes. The Deputies' amendments, in my view, are unsustainable.
Listening to Members' comments, one would imagine that there is no due process prior to the making of an application for judicial review. We must remember that the individual concerned is entitled to make his or her application for asylum which will then be considered in a substantive manner. He or she also has the right to appeal a negative decision in respect of his or her application. The person concerned, if he or she so wishes, can then make an application to the Minister of the day to be allowed to remain in the State on humanitarian grounds. Finally, he or she has the option of seeking to establish that the procedures employed were flawed in some way by taking a case to the High Court. During the entire process, applicants can avail of legal aid. There is no question of the process being summarily dismissive because each of the procedures relating to it must be followed.
Arguments have been advanced today to the effect that the requirement that the High Court must be satisfied that a substantive case exists before granting leave to apply for a judicial review somehow places too heavy an obligation on the applicant's counsel in preparing a case for court and that two weeks is insufficient time for a lawyer to put together a substantive case. These arguments ignore the fact that all decisions which may be challenged under this proposal, listed at subsection (1), are decisions about which the Minister has an obligation not only to inform the applicant but also to outline the reasons for them.
Decisions which may be the subject of judicial review under this proposal are almost invariably the result of extensive prior contact with the per son in question during which he or she would nor-mally have availed of the opportunity to take legal advice. In many instances, continuing legal advice and interpretative facilities are provided at the expense of the State. In those circumstances, I cannot accept that where there is a substantive case to be made and where there has been a procedural flaw in the process, it would be beyond the competence of a lawyer to proceed with expedition.
In the case of an asylum seeker, all relevant documentation in relation to his or her application and any appeal is available at each stage of the application process. The existing administrative arrangements provide for a thorough consideration of each application. Applications which are examined substantively are examined to determine whether the applicant meets the definition of a "refugee" as outlined in section 2 of the Refugee Act, 1996. The applicant is given a full interview and an opportunity to make submissions. Where a person is not recognised as a refugee, he or she is entitled to avail of the independent appeals process. The appeals are determined by an appeals authority comprising a barrister or solicitor with at least five years' practice. The appeals authority is provided with all the information provided to the applicant and with such submissions as may be made by or on behalf of the application in connection with the appeal. Legal aid and interpretative facilities are provided at all stages of the determination process.
Under the Refugee Act these procedures are on a statutory and independent footing thereby providing further certainty to the applicant. By the time a case reaches finality, the substance of the case will be clear to all concerned and full documentation, including decisions and reasons, concerning the basis of a judicial review application will be available.
Where issues of complexity arise, the High Court has the power under subsection (2)(b) to extend the time in which people may apply for judicial review where it is satisfied that sufficient reasons exist to do so. I do not agree that this is a provision which seeks to restrict access to the courts. It will fundamentally ensure that applications for leave to apply for judicial review are dealt with fairly and speedily. If the provision is one which applies to a particular group of persons, namely, those subject to asylum and immigration procedures, it is not for the purpose of singling these people out; rather it is to ensure that they will be satisfied that they will be dealt with in an open and transparent manner under consistent procedures which have integrity and reflect the State's obligations to the people concerned.
In reply to Deputy Jim Higgins' point, the issues and facts in any one case are very clear by the time a decision is issued and every decision is supported with reasons. The law applicable is quite self-contained and I do not see why any reasonably competent barrister should not be able to master such a brief within 14 days. All that is required is that the proceedings would be brought within 14 days. Thereafter, the time limits for the delivery of the relevant pleadings is a matter for the rules of the superior courts and the discretion of the judge. On the Deputy's assertion that this measure is unconstitutional in some way, I can only say that I must take the advice of the first law officer in the land, the Attorney General, who is given the responsibility under the Constitution to advise the Government.
In regard to the passage of the legislation and the length of time it took to come to the House, the suggestion that I delayed the processing of this Bill in some way is complete nonsense. I have at all times pressed for the early processing of this legislation and any delays which arose occurred as a result of the demands placed on the House by other business. I sought to present the Bill to the House at an early date and I was grateful that Second Stage could be taken last November. I continually pressed for an early date for Committee Stage but the workload of the select committee did not permit an early hearing. Accordingly, following the hearing of evidence in February, the Bill finally went into committee at the end of March. Following completion of Committee Stage, the earliest available debate for commencement of Report Stage was the end of May. I have been more frustrated than anybody else by this delay but I do not intend at this point to lay any blame on anybody for it. The more one considers the matter, it would appear that other business placed demands on the House. I take great exception to the suggestion that I, having introduced the Bill and sought its early processing at all times, should be accused of delaying its passage. It is nonsensical to suggest that I would want to delay my own Bill.
These issues have been debated comprehensively. I call a spade a spade and my reasons for introducing these judicial review measures are quite simple. I do not want a situation to arise whereby the judicial review procedure will become a mechanism to further lengthen an already lengthy process. I do not believe there is anything to be gained from allowing a situation to develop where people can use judicial review proceedings to prolong the process when they do not have any case.
Ample safeguards are contained in the legislation. It is clear that if an individual can outline to the court that a case exists, the court will ensure that his or her case will be heard. I cannot be any fairer than that. Due process, natural justice and transparency are evident throughout the proceedings and legal aid and interpretative facilities are also provided.
Some people may object to the provision relating to judicial review and I respect their decision to oppose my view. Deputy Joe Higgins's allegation to the effect that all judicial review proceedings have either been settled or lost by the State is simply incorrect and does not have any basis whatsoever in fact. I do not know where he got his information but he has clearly been misinformed.
(Dublin West): Give us the facts and figures.
The Deputy clearly advocates an open door policy on immigration and he is suggesting that I should not seek to delimit the judicial review procedure to the State's advantage. It is patently not the case that any disadvantage is being conferred on individual applicants. Of all people, I would be the very last to deny an individual the right to have his or her case heard. Every person will have the right to have his or her case heard all the way through.
We should not confuse the concept of judicial review with an application for asylum per se. It must be remembered that a judicial review is about whether the procedures applied in the processing of an application were applied correctly. It is about whether the procedures were flawed. A judicial review does not involve a rehearing of the substantive case which will have been completed before a case ever comes to judicial review. What am I doing here?
Speaking for a very long time.
I am saying that a person has 14 days after all the procedures have been undergone to challenge those procedures. People have 14 days to establish whether they have a prima facie case. I do not see anything wrong with that. I am merely asking that the Minister of the day would receive notice in order that he or she would be in a position to advance his or her own argument. At the end of the day, this is a matter for the court. It is not as if either of the sides involved will make the decision. I believe this proposal is fair and balanced.
I am at a complete loss as to the foundation for Deputy Joe Higgins's statement. He asked me to provide the facts and I will now establish beyond any doubt that his comment is at complete variance with the facts. In the period 1997 to the end of February 2000, a total of 52 asylum or immigration related judicial review applications were made and judgments were also handed down in a number of cases in which judicial review had been sought prior to that time. Of the 52 applications made in that period, 32 cases are ongoing and cannot, therefore, have been struck down. Nine cases were struck out by the court; three applications were withdrawn by the applicants; seven applications were granted or part-granted and one application has been heard but no order has yet been made.
Of the nine cases struck out, three applicants were granted permission to remain as the parents of an Irish child and so there was no point in pursuing the litigation. Four applicants were admitted to the asylum process in view of the delay arising from the absence of a power to deport as the result of the proceedings in the Laurentiu case. These were cases where the asylum application was appropriate for consideration in a Dublin Convention country, where the applicant had already either applied for or had an opportunity to apply for refugee status, in which the time limits for removal had expired during the post Laurentiu period or when there was no statutory power to remove the applicant. One case was struck out and admitted to the asylum process and one case was re-admitted to the asylum process because it could not be proven that a refusal letter had been received by an applicant.
Of the seven cases granted leave to apply or part granted such leave, six, including Laurentiu, were granted or in most cases part granted because of the finding in relation to deportation powers in the Laurentiu case. The remaining case related to procedural grounds.
It is easy for commentators to make assertions of a greater or lesser degree of verifiability in support of an argument they want to make, particularly in circumstances where there is little or no prospect of such assertions being challenged. As a party to the proceedings however, in all these cases I owe it to the courts, the applicants and to this House to act with prudence in relation to any comments that might be made on the cases in question. I cannot, therefore, address the assertions about these judicial review cases as fully as I might like because of the sub judice rule.
With regard to the terrible tragedy at Dover, I share the House's deepest concern and I express my deepest sympathy to the relatives of the tragic victims. This is an appalling case. It is deeply sad and words cannot express the revulsion and horror I feel for those who may have been involved in the trafficking of these vulnerable people. I have been saying for a considerable period that there was no doubt that people were being trafficked into Europe and Ireland. That is my principal reason for bringing forward this legislation. There may be elements of this Bill which some Members may not like, but none of it is meant to undermine the dignity of any human being, far from it. It is intended to be fair and honest, balanced and reasonable. Above all, it is intended to ensure that the asylum process itself is respected and that the 1951 Convention is enforced properly. It is intended to ensure that there is no open door policy in relation to immigration.
Yesterday I was in France and met the French authorities. My understanding of the situation in France is that there may be up to 10,000 asylum applicants every month this year. This is a very large number. There is very little doubt but that trafficking exists between Cherbourg, for example, and Rosslare. That has been the case for some time. Fortunately, most people who come to Ireland by that route do so as foot passengers. While that fact is welcome, no individual has the right to abuse the asylum process. People are held to be illegal immigrants only after fair procedures have been gone through.
I accept that people have grave criticisms of my policy and of the legislation. I respect them for their opinions. However, I must do what the Government believes is right. In that context, this legislation is correct and will stand the test of time. These are the reasons, with the greatest respect, I reject the amendments.
I will attempt a brief response to the Minister's half hour speech containing much information and a moving homily, for which Members are grateful.
The Minister's general arguments do not hold water. The notion that the Minister wanted this legislation enacted speedily and that the vagaries of the House, the truculence of Whips and the difficulties of committees put obstacles in his path does not hold water. The Bill was delayed because the Minister constantly moved the goal posts and added further amendments which had nothing to do with trafficking in asylum seekers.
I ask Deputy Howlin to confine his remarks to the amendments under discussion.
I am sorry the Minister, during his half hour speech, was not admonished in that way. I confined my original remarks to amendments Nos. 15 and 17 but the Minister, in his speech, travelled from Paris via Cherbourg to Rosslare and gave a very lame justification of his own inaction.
The Minister appears not to understand what judicial review is about. I am surprised to hear this from a trained and expert lawyer. Judicial review is not an administrative matter. The Minister cannot decide if it suits the State or balance the rights of the State against the rights of an individual. The purpose of judicial review is to ensure that administration is proper, fair and complies with the law. It is not for the Minister to make that judgment. It is for the courts, under our system, to do so. People must have access to the courts on an equal basis and not on the basis that it suits the State or the Minister. The Minister wishes to have a particular course of action for reviewing procedure in asylum cases which is different from all other cases. That is not good enough.
I am profoundly disappointed that the Minister did not address the fundamental points in the two amendments. The first is the issue of ex parte as opposed to notice when the norm is that people have instant access. The second is the issue of substantive issues being put ab initio. I speak only of the right to launch a case, not to argue it.
(Dublin West): I am glad the Minister has quoted facts and figures. I shall study them in the Official Report. The Minister's figures do not support to his implicit contention that vexatious or frivolous cases have been brought to the High Court for judicial review. According to the Minister, approximately 20 cases were decided, seven were granted, which is one third, and others fall into various categories which I do not remember exactly. There is nothing to show a wholesale trivial approach to judicial review, which is the main ground on which the Minister bases his case for inserting this measure in the Bill. The Minister is prejudging the case.
It is important to state why so much concern was expressed regarding this section. The recent tragedy in Dover and the knowledge that criminals are profiting by such traffic give the Bill an extra urgency. The Bill would have been enacted a long time ago had the Minister not introduced this measure when submissions had already been made by people engaged in judicial and humanitarian support for refugees. Without notice to us as parliamentarians or them, we were presented with something that really has nothing to do with this Bill or should have nothing to do with it. The members of a select committee were allowed to take oral submissions because it is part of the consultative process of the Committee on Justice, Equality, Defence and Women's Rights to do so. The submissions on this addition to the Bill were among the most passionate, committed and justified that were ever received during my experience of the committee. They cannot be marginalised or sidelined because they came from experts in the field. The committee received them in an all-party manner, being in no way partisan or wishing to delay this Bill which is of such urgency. In the democracy we must exercise in this House and in the committees, in particular, that was the time needed to take those submissions.
We come again to the basic flaw in the Bill which related to a point of the most fundamental constitutional concern, that is, since the early 1980s jurisprudence has established that Article 40 of the Constitution guarantees access to and equality before the law to every person by virtue of their humanity alone, not how they came to Ireland or how they were treated once they came, but on their humanity alone.
In addition, Articles 6 and 13 of the European Convention on Human Rights guarantee the right to a fair trial and effective domestic remedy to all persons within the party states. Thus, national and international law prohibit discrimination by the State against persons appearing before the courts, be they national or non-national. Equality before the law is a basic human right. The Minister in his long response to Deputies Howlin, Joe Higgins and Jim Higgins made the point that the process would be seen as fair and transparent. Evidently it is not seen in that way by a large number of people of whom it will be demanded to implement and process this part of the Bill.
Limiting applications to the High Court, where the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation or refusal is invalid, gives direction to the courts which raises all kinds of problems about the separation of the Executive and Judiciary. In addition, we know, even from the list that the Minister gave with regard to the cases that are already being processed, that it is claimed by the practitioners who will have to try to process this that to establish substantial grounds within 14 days, taking into account the necessity of detailed instructions, translation facilities and briefing counsel, is simply unduly onerous. The whole process may break down and be brought into disrepute.
I advise the Minister that if we use the same sense of urgency in the process with regard to people's access to the country and the process through which they would go before judicial review became applicable to them, it would probably would be a greater use of our energy and our humanitarianism. It is extraordinary that we would try to congest this into 14 days when one of the most difficult experiences of refugees applying here and for people dealing with them is the undue delay because of the lack of process already.
In his response the Minister said that it was a process that could be prepared within 14 days and it really would not take that much preparatory work. However, I have been informed by practitioners within the law that this demonstrates a misunderstanding of the concept of judicial review. The instructions necessary to ground an application for judicial review will not be the same as those already received relating to an asylum application, as the merits of the substantive case are not relevant to the judicial review process. Relevant instructions will only arise when the refusal has been handed down and preparation along different lines will then have to be made. It is not right to say that this is a rerun and will only take 14 days. This matter must be taken very seriously with regard to the recognition and acknowledgement of the law and the courts.
I again appeal to the Minister, as we have done during the sitting of the select committee. We honestly believe, not wishing to be contentious, that this is unconstitutional because it unfairly prejudices persons before the Irish courts who are non-nationals and nationals. I take the Minister's point and I do not question his commitment to and compassion for refugees and people who are making their case to remain in this country. However, he said that nothing would be done to undermine their dignity. By proposing that our courts and the Constitution treat refugees and asylum seekers in different ways from people already living in this country who regard themselves as citizens, we are saying that we are offending their dignity and that they do not have the same status, dignity and rights under the Constitution and in the courts. It is a sad day if Parliament introduces such a two-tier system. Even now, we ask the Minister to consider this issue very carefully. It is causing much of the delay, although not an undue delay as this is one of the most fundamental, just and fair changes to a Bill that we have ever tried to argue and, hopefully, win in this House.
As that was Deputy Barnes's first contribution, there was no two minute time limit If the Minister wishes to contribute he has two minutes as it is his second contribution.
The measure has been described as discriminatory because it applies to non-nationals. Deputy Barnes will be aware that it does not apply to refugees in the context of refugees taking an application in relation to judicial review because they would hardly want to reverse a decision already made that they are refugees. It applies to people who have been refused refugee status.
I take the Minister's point. That was a slip but it does not take away from the point.
It is only discriminatory in the same way that the social welfare code discriminates against 55 year olds or 25 year olds in that they are not entitled to an old age pension.
(Dublin West): One gives them an old age pension, one does not take it away from them.
There is nothing wrong with drawing distinctions once the basis for the distinctions serves a legitimate legislative purpose and is not unreasonably discriminatory. To put it succinctly, the purpose here is to provide for the first time in primary legislation a statutory code for judicial review of steps taken and decisions made in the asylum and immigration process which will facilitate the expeditious determination by the High Court of the procedure of validity or otherwise of those decisions.
I have never at any stage suggested that I would be making the decision. All I said was that the court would decide whether a person had grounds to bring forward a judicial review case. I am not asking any individual to establish his or her case within 14 days of the decision having been made. All I am asking him or her to do is establish within that period that he or she has grounds upon which the court should hear the case in a substantive way. Also, there is provision in subsection (2)(a) that such an application would be made to the court within the 14 days unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made. There is that saver as well.
I am not denying anybody access to court but it appears to me that Members of the House, in insisting that this should stay as an ex parte application, are insisting that I or any of my successors on behalf of the people should not have access to the court because if the Minister should not be put on notice, that is not fair to the public.
That is silly.
We refer to fundamental rights which were not just established under jurispru dence in this State but are contained in Articles 6 and 13 of the European Convention on Human Rights. We do not offer vexatious opposition. These amendments are founded on the most basic of rights, hard won and highly regarded in Ireland. All we ask is that everybody in Ireland has the right to be treated in the same way with equal access to justice before the courts as is the case currently but this amendment will change that totally.
On a procedural point, am I the last speaker on these amendments?
(Dublin West): Do I not also have the right to reply?
No, because we are only dealing with amendment No. 15.
(Dublin West): Together with amendment No. 16.
When amendments are grouped, the person who has proposed the first amendment has the only right to reply.
(Dublin West): That is bizarre.
I did not write the Standing Orders.
(Dublin West): Do I lose my right to reply in favour of Deputy Howlin because he happened to be drawn out of the hat first?
I am not sure whether a hat was involved. Deputy Howlin's amendment was wider and, therefore, it was taken first.
It is a little similar to PR.
This is a fundamental issue and I regret that Deputy Higgins and others do not have a further opportunity to contribute on these amendments. I further regret that we only have two hours in total to deal with a series of other important amendments. The Minister has decided to entirely ignore my arguments in regard to amendments Nos. 15 and 17. The case he put was entirely disingenuous in terms of the notion that the normal judicial review procedure available to every citizen for any action he takes somehow is discriminatory against him. That is the import of what he said. He must have the application on notice, otherwise he would be excluded from the judicial review process.
No.
That is what he said. It is daft, silly and untrue. Is it not a fact that a judicial review taken against him is carried out on ex parte basis in regard to any administrative decision for which he is responsible should a citizen want to have it tested in terms of its fairness? If the Minister believes that is discriminatory, the only way we could be convinced is if he proposed in legislation to delimit all applications for judicial review in the way he proposes to delimit the category of exclusions implicit in this legislation. They all relate to immigration or deportation matters. His argument does not hold water. It is vacuous and absolutely groundless.
The Minister wants to put the hurdle as high as he can for this category of people.
That is right.
All the chest beating, homilies and the few ochóns delivered tonight boil down to one plain fact. The Minister wants to put the highest hurdles in place to fast track people so that he can catch up and be in step with his constituency colleague and show this category of people the door.
That does not become the Deputy.
There is no other explanation for it. I would have been convinced or at least impressed had the Minister addressed the argument. No argument in regard to the requirement specifically in this group of cases for an application on notice was given other than it would disadvantage the State—
That is right.
—slow the process and frustrate the objective of showing these people the door. That is the long and the short of it. If the Minister believed in the rule of judicial review, he would accept normal procedures and would not try to establish new ones.
With regard to amendment No. 17, the Minister again wishes to change the ground rules to remove arguable case, which is the basis of any other application for judicial review. This refers to getting off the ground an application for judicial review, not a determination, but the Minister in regard to this category of administrative decision or action wants substantial grounds to be provided in a tight timeframe of 14 days on notice to the Minister so that he can argue against the substantial grounds from day one.
That is right.
The Minister used the phrase "calling a spade a spade" earlier and that is what he wants to do. It would be honest of him if he said that he wants to put the highest hurdles in place to fast track as many people out of Ireland as he can and if there are unfortunate consequences where the normal judicial review pro cedure would determine mistakes, so be it. That is what he is saying.
Let me warn him, as others have, that this amendment must meet a number of hurdles. The first is its constitutionality and enough has been said about that by Deputy Barnes, myself and others. Another opt out is contained in section 5(2)(a). The Minister introduced proposals in the House some time ago to impose mandatory ten year jail sentences on drug traffickers above a certain threshold. He will recall the argument we had in that regard. It is interesting to note the statistics. The courts have decided that every case they have dealt with so far is an exception which does not require the application of that mandatory code. If the Minister pushes his amendment through, the High Court will consider good and sufficient reasons for extending the 14 day period despite what he wants, because it will not be thwarted in its determination to treat all human beings equally, citizens and non-citizens, by virtue of their humanity.
The Minister in his response referred to his visit to Paris and Cherbourg. I could have a long conversation with him regarding the need for tightening controls at the port of Cherbourg. I hope he engaged in positive dialogue with his French counterpart in that regard. More than a year ago I wrote to the French ambassador about this because I predicted the type of awful tragedy that befell those unfortunate people in Dover yesterday and that one day a container would be opened in Rosslare and a similar tragedy would be witnessed. I have spoken to an ambulance attendant who had to treat desperately dehydrated people falling out of the back of a lorry in Rosslare. I hope his dialogue in France had more effect than my communications with the French ambassador or the letter of the Select Committee on Justice, Defence, Equality and Women's Rights which I proposed should be sent to both the UK and British authorities.
The Minister is wrong in regard to this set of amendments. His arguments do not hold water and he has not made the case effectively. There is nothing further to be said because the Minister is determined to follow this course. If he forces this through the House, it will be challenged somewhere else.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
As amendment No. 15 has been declared lost, amendment No. 16 cannot be moved. Similarly. with amendment No. 17—
(Dublin West): My amendment No. 16 is not affected by the result of Deputy Howlin's amendment. The amendments refer to two different parts of that section.
I understand that the word "and" is in both amendments and it was agreed in amendment No. 15 that the word proposed to be deleted should stand. Therefore, amendment No. 16 cannot be moved because amendment No. 15 was negatived.
Amendment No. 16 not moved.
(Mayo): They are all against you, Joe.
(Dublin West): It is almost as bad as limiting the right of appeal to the court here.
(Mayo): I would seek a judicial review.
As amendment No. 16 was not moved, amendment No. 17 can be moved.
I move amendment No. 17:
In page 7, line 40, to delete "are substantial grounds" and substitute "is an arguable case".
This amendment has been debated already with amendment No. 15.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I think the Labour Party is at the by-election.
Do not tempt me.
Amendment No. 18 arises from committee proceedings. Amendment No. 19 is an alternative. Amendments Nos. 20 and 21 form a further composite alternative proposal. Amendments Nos. 18, 19, 20 and 21 may be discussed together by agreement.
(Mayo): I move amendment No. 18:
In page 7, to delete lines 43 to 50 and in page 8, to delete lines 1 to 6.
I will not hold up the debate because the onset of its closure is imminent and there are many important amendments to deal with yet, particularly in the name of Deputy Howlin, in relation to further methods of executing deportation orders. Basically, this amendment closes off the right of appeal. Section 5(3)(a) states that:
The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
So, it should be in the public interest and it should be of exceptional public importance. Clearly, what is involved here is another curtailment of their constitutional rights. Already we have seen in quick succession that the fundamental constitutional rights of people, as enshrined in the Constitution and upheld by the courts, have been flouted. The period for a judicial review has been reduced from three months to 14 days. In addition, a substantial case must be made to gain a judicial review, rather than an arguable case. There will be limited access to the High Court and now a person's access to the Supreme Court has been cut off.
We are not dealing with broiler chickens that have to be produced within 14 or 21 days. This is not a conveyor belt or a mechanical project. We are talking about the fundamental rights of people who should be entitled to have their cases properly heard by the courts. We are discussing all the idiosyncrasies and intricacies of a particular case and no two cases will be the same. No two cases of people coming from Angola will be the same, let alone one coming from Angola and another from Romania.
As Deputy Barnes said, would that the Minister would apply the same degree of speed and efficiency to the asylum procedures both at the initial and appeal stages, as he is trying to do here by flouting people's constitutional entitlements.
(Dublin West): This is another extraordinary proposal by the Minister, further consolidating his all-out attack on the human rights afforded to asylum seekers. It further delimits their rights before the courts in contrast to citizens of this country. It is extraordinary that in this Bill, introduced to deal with gangsters at whom the Minister is supposed to be aiming his gun, some of his powerful salvoes are aimed at the victims of the gangsters in severely delimiting their rights. On this day of all days, we should remember that it is not just traffickers who create the problems that finished in the tragedy at Dover. Poverty, destitution, economic collapse, political and religious persecution, and the multinationals' exploitation of poor countries, all create conditions where innocent people put their lives on the line in order to have a better life.
It is quite incredible that in the same legislation that criminalises the traffickers, the Minister is delimiting the right of innocent victims both of economic and political conditions, and in some cases of gangster traffickers also. We would do well to keep in mind that despite all the laws, traffickers, unfortunately, thrive on the conditions that give rise to the horrific heroin problem here, just as they thrive on the conditions that created the terrible tragedy at Dover. Therefore, removing the conditions is the best way of removing the traffickers who deal in human lives. However, instead of providing comfort to the victims of those terrible conditions of poverty and persecution, the legislation further delimits their rights. It is a very sad day, indeed.
The Minister was about to embark on a few arguments but he had to beat a hasty retreat because it was obvious that he was not going anywhere with regard to to whom these measures would be applicable. It is quite transparent that the only reason the measures are being introduced is to deal with people who are seeking asylum. The Minister was about to try to justify the legislation on the basis that a few alleged crooks from other countries would come before the courts every year. He said that because the legislation applied to them it is fine and it should apply to innocent asylum seekers also. Even the Minister was beginning to become embarrassed by his own argument so he did not push any further.
It is simply and wholly to do with delimiting the rights of asylum seekers. The latest provision which cuts off access to the Supreme Court is an appalling precedent to introduce to our laws. The subsection states that leave for appeal:
shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
However, what about the individual rights of human beings before the courts? That is what is being openly attacked by the Government in this measure. It is quite shameful. It is incredible that the Minister is in effect prejudging the cases of many of those who will go before the courts to seek judicial review of his decisions. He said that these measures are necessary to prevent people lengthening the process unduly or using the judicial review process when they have no case. Who says they have no case? The presumption in every case that goes before a High Court judge is that the person concerned has a case and must be given a full hearing. This is the presumption on which the Minister, representing the State, should work.
The statistics quoted by the Minister regarding the outcome of judicial review applications already heard or in the process of being heard demonstrate that the applications were not trivial or tenuous. I gave the wrong figure when I mentioned 30 cases, but the point is clear when it is analysed that in many cases there were substantial grounds for applications for judicial review. Therefore, it is spurious to try to use the excuse that trivial, tenuous or vexatious reasons will be used.
Given that the time to make a substantial case for judicial review is being delimited to 14 days, the extra measure of refusing applications to the Supreme Court compounds the injustice. As it is delimited to 14 days, it is entirely possible that applicants will not be in a position to have the best case possible put forward. As they will not have recourse to the Supreme Court, the Minister has compounded the injustice in this area. When one considers the particular complications and complexities faxing people seeking asylum in Ireland, who are generally very poor, one can understand the difficulties. There are often severe language problems and undoubtedly there will be major problems with legal aid.
The Minister pretended that legal aid can be provided at the drop of a hat. However, given the language and logistical difficulties and the resources available, it is disingenuous of him to pretend that unfortunate asylum seekers can have solicitors and barristers to hand as if they were millionaires in a position to directly buy their services. That is manifestly not the case.
The Minister should take his direction from the necessity to protect human rights and the preservation of natural justice and people's right to seek asylum and refuge. He should do everything possible to ensure that no mistake is made. If a mistake is made and a person is forcibly deported to the wrong country, he or she could end up in prison or be killed. We are talking about people's lives and an understanding of the gravity of the human need in this area should dictate the policy of the State, not the rantings of Neanderthal politicians who occasionally, in order to consolidate a very narrow base of support, make outrageous racist statements targeting asylum seekers and minorities, people of a different colour and culture to the majority on this island. The State, the Minister and the Government should not take their lead from politicians whose ideas are from the caves. They should take it from the best practice and philosophy that obtains with regard to the preservation of human rights, human dignity and the right of people to have their rights vindicated in the same way as citizens of Ireland.
(Mayo): I presume the Minister agrees with the Deputy.
The restriction on the right of appeal to the Supreme Court is one of the most outrageous provisions of the Bill. To my knowledge, it is the first time a Minister has tried to curtail the right of appeal in any area other than the technical and administrative sphere. My view is that the Supreme Court must be able to deal with basic constitutional and human rights. It must be able to deal with non-nationals in exactly the same way as it deals with nationals. For those reasons, the proposal is probably unconstitutional.
I tabled an amendment on Committee Stage similar to the amendments tabled by Deputy Joe Higgins and Deputy Jim Higgins. The purpose of the amendment was to delete the section. I tried to give the Minister some scope to reflect by varying the tack on Report Stage so my amendments Nos. 20 and 21 are new. I am suggesting a more limited amendment than deleting the Minister's proposal. This amendment would allow the Supreme Court to give a certificate of leave to appeal. I understand this happens in a criminal case. If one is convicted in the Circuit Court, one asks the judge there for leave to appeal. If the judge refuses, one can ask the Court of Criminal Appeal for leave to appeal.
The Minister should reflect on this half way measure. It would allow a person the right to seek the right to appeal in the Supreme Court. It is most important to leave with the Supreme Court the final right on whether it should hear an appeal. Otherwise, if the Minister's proposal stands, the High Court will be the sole judge in the matter. I do not believe this is appropriate in a personal liberty matter.
I tried to find a formula that might meet the Minister's requirements, which are simple although he will try to dress them up. He wants the quickest provision and he does not want people utilising mechanisms to prolong their stay in Ireland if a decision has been made. It can be argued that decisions other than those relating to deportation can be reviewed, but that is the kernel of the matter. However, a more fundamental issue is at stake and this is the way the courts are treated. In matters relating to personal liberty and rights, the Supreme Court has made an extraordinarily valuable contribution to the development of the corpus of law and rights in Ireland. We should not seek to delimit access to that jurisprudence to any non-national simply because of their category as non-nationals and because they fall within the remit of the proposals in the Bill.
My amendments are sensible. They do not go as far as the amendment I tabled on Committee Stage, which has been restated eloquently and well by Deputy Jim Higgins and Deputy Joe Higgins. However, they allow due recognition to the Supreme Court and would allow it to determine whether it should hear an appeal. I hope the Minister has had an opportunity to reflect on this matter and that he will not dismiss them out of hand. As he has conceded little in this debate to date, I hope he will see some merit in my argument.
Amendment No. 18 would remove subsection (3), the provision which confines appeal to the Supreme Court only on a point of law, and amendment No. 19 which would substantially amend it and in such a way as to effectively nullify the provision.
Subsection (3) confines the right of appeal from the High Court's decision to the Supreme Court, in judicial review of immigration and asylum matters, to cases where the High Court certifies that its decision involves a point of law of exceptional public importance and that an appeal to the Supreme Court would be desirable in the public interest. The provision applies to decisions of the High Court to grant or refuse leave to apply for judicial review, which would arise at the earliest stage of the judicial review process, and also to decisions of the High Court on the merits or otherwise of the judicial review application.
Let us look closely at the terms used in the subsection and their precise application to the cases in question. Let us look at the situation of a person liable to be deported who goes to the High Court claiming that the procedure leading to the deportation order was flawed in some respect. In order to get past first base, the potential deportee must show the High Court that there are substantial grounds for this assertion. Because the application is not ex parte, the Minister is in a position to put counter arguments and factual clarification before the court.
The court, having heard both sides on the preliminary issue, should have a good basis for its decision, whichever way that goes. If the court decides there is a substantial ground for arguing that the deportation procedure was flawed, the Minister, if he is not happy with that decision, can seek leave to appeal it to the Supreme Court. This subsection states in those circumstances that in order to be given leave to make such an appeal, the Minister must persuade the court that its decision involved a point of law of exceptional public importance and that it is desirable in the public interest that the appeal be heard. Similarly, if the High Court has refused the application for leave to seek judicial review, it would be for the applicant to demonstrate to the court that these two conditions were met in order to be allowed to appeal. In circumstances where the High Court has had the opportunity of hearing both sides of the issue, that is a perfectly reasonable restriction on the right of appeal.
Let us also consider this subsection as it will apply following substantive consideration of the judicial review. The High Court will have arrived at a decision following full exposition of the facts of the deportation process as applied to the particular case, including all documentation. It will have heard both sides of any dispute on the facts of the procedure followed in the case and it will have heard detailed legal arguments on the issue of whether there was a flaw in the procedure as applied to the person in question. If, after all that, the Minister or the person in question is dissatisfied with the High Court's decision, it is not unreasonable that it should be for the Minister or the person seeking to appeal that decision to the Supreme Court to show the High Court there is a point of law of exceptional public importance and that an appeal would be in the public interest.
The constitutional position is clear. By Article 34.4.3º the Supreme Court's appellate jurisdiction from the High Court is "with such exceptions and subject to such regulations as may be prescribed by law", and this subsection is such an exception or regulation. The protection under Article 34.4.4º for appeals involving constitutional issues is reflected in paragraph (b) of the section. The appeal provision in subsection (3) is of a piece with the intent generally of this provision to ensure, consistent with the interests of justice, that the pursuit of court proceedings will not unnecessarily delay the processing of cases in the immigration and asylum areas and that the interests of the public generally will be served by its retention in this section.
The approach of Deputy Howlin's amendments is different. It is clear from the thrust of his amendments that he accepts the principle that the appellate jurisdiction of the Supreme Court in judicial reviews and applications for judicial review in immigration and asylum cases should be confined to those cases where a point of law of exceptional public importance is involved and that it is in the public interest that the appeal should be heard by the Supreme Court. The Deputy's amendments seek to spell out that the refusal by the High Court to certify that a particular case falls into that category should itself be appealable. I am advised this is implicit from subsection (3) as it stands and Article 34.4.3º and that the amendments are unnecessary. I assure the Deputy that the aim which he seeks to achieve with these amendments is already achieved by the language of the subsection. Deputy Howlin might wish to withdraw his amendments on that basis.
Deputy Joe Higgins referred to asylum seekers and refugees as if these were coterminous concepts or terms. They are not. There is a deep difference between an asylum seeker and a refugee. If that was not the case, there would not have been a need for the 1951 Geneva Convention. Just because one applies for an old age pension, for example, it does not mean one should be given it. If I applied for an old age pension, I would not be granted it on the basis of my birth certificate because I am not the appropriate age.
The Minister would be granted it.
(Mayo): The Minister would qualify for the dole.
If a person applies for refugee status and he or she is not a refugee, why should he or she be deemed to be a refugee? Deputy Joe Higgins is suggesting these are coterminous concepts when they are not. That is well established in international law. Otherwise, the whole thing would be nonsense. I do not see any rational basis to his argument. It is like saying a cat is not a cat. These terms are not coterminous. We should maintain our perspective.
As regards curtailing constitutional rights in this or any other Bill, I do not have the power to curtail or constrain constitutional rights by virtue of a Bill passed through the Houses of the Oireachtas no more than any Minister before or after me.
As the Minister will discover in due course.
Nor am I seeking to do so. It would be ridiculous to attempt that and I would not do it.
As regards the comment that this is an all out attack on the human rights of asylum seekers, that is patent nonsense. It is not an attack on the human rights of anyone. We are just trying to streamline the procedures and to ensure that everyone gets a fair crack of the whip.
That is an unfortunate turn of phrase.
Could Deputy Howlin or Deputy Joe Higgins explain to me why the applicant, for example, should not have to go into the High Court and argue that his or her case involves a point of exceptional public importance or law and the Minister should have to do so? Why should the Minister not have the same rights on behalf of the people as the applicant? I see no reason why he or she should not have the same rights. Anything else is ridiculous and tips the scales in one direction or the other.
As regards criminalising asylum seekers, nothing could be further from the truth. There is nothing here which criminalises or stigmatises asylum seekers. I am applying common sense to this entire concept. I know a refugee is a person who is fleeing persecution or death and I know it does not cover a person who is an illegal immigrant. We cannot use the same terminology in respect of an illegal immigrant and a refugee.
Nothing could be of greater import to refugees than that the definition which applies to them in international law would be observed by states. It is of considerable importance in the light of conflicts which have taken place throughout the world that human beings who are fleeing persecution or death receive sanctuary. It is an acknowledged fact by the United Nations High Commissioner for Refugees that there is no greater cause of delay in the cases of applicants for refugee status than illegal immigrants clogging up the system. It is important that the language and terminology used are correct not least to those people who are refugees.
Deputy Howlin accused me of delivering homilies. I suppose I could accuse him of sermonising. While I have listened to many homilies, I have delivered none. I accept I have had to deliver some responsorial psalms during this debate, but that was not my fault.
I am not seeking to delimit the rights of asylum seekers.
(Dublin West): Why is the Minister doing it?
At the point where the individual is making an application to the court by way of judicial review, a decision will have been made regarding his or her status as to whether he or she is an illegal immigrant or a refugee. So at the point where the individual makes the application, he or she, if it is the asylum process that is employed, will or will not be an illegal immigrant, and an illegal immigrant is not an asylum seeker. An illegal immigrant is somebody who was an asylum seeker, having gone through the process—
(Dublin West): Why is the Minister doing it?
—but he or she cannot be an asylum seeker at that point.
What if the process is flawed?
If the process if flawed, and if the individual has substantial grounds for putting that forward to the courts, he or she has 14 days to do so from the date of the decision and the court can decide—
So he or she is not an illegal immigrant, and never was.
—that the individual whose status has been determined can argue that the procedures employed were in some way flawed in his or her case, but it is not a substantive rehearing of the case. It is a question of whether the procedures were or were not flawed.
No logic at all.
There is no question of there being an attack on the dignity of human beings or on their human rights. That is not the case. The position is that refugees are entitled, in accordance with international laws, to the protection of the State, and illegal immigrants are not. That is not something I dreamed up. That is the way it is in international law and across the free world, to the best of my knowledge, information and belief. If that were not the case, the alternative would be an open border or open door policy and that is something that is just not sustainable. It is not something that we could cope with, it is not feasible or realistic and it does not accord with any degree of logic or common sense. I wish the world were different as well, but it is not.
Is that a homily or a sermon?
That is a responsorial psalm.
What is the response?
Deputy Joe Higgins wanted to know who said they have no case. The courts will make that decision in due course if a person decides to seek a judicial review. The courts will decide whether the individual has a substantial ground to make that case and if he or she has a substantial ground, then obviously it will go to a full hearing and if the court decides otherwise, obviously it will not go to a full hearing.
With regard to the idea that there is a presumption that people have a case, I am afraid there is no presumption about people having a case in our courts. One must prove in a civil case, on the bal ance of probabilities, that one is correct. In a criminal case the prosecution must prove that its case is established beyond a reasonable doubt. There are no presumptions like that.
Deputy Joe Higgins is concerned that in the event of people being deported, and as a result of these measures, people could end up "in prison or dead in a foreign country" but he must not have heard of the rule against refoulement, a principle which has been enunciated in refugee law here and internationally. It simply means that an individual cannot be deported to a country where he or she might face persecution or death. That is the safeguard. That is the way it is and no amount of assertions to the contrary can deny that basic fact. I have put the case as well as I can and I think it is fair, balanced and reasonable. I have thought that from the beginning.
(Mayo): Can I seek your advice, a Leas-Cheann Comhairle? Time is virtually up, is that right?
The Chair is obliged to put the question at 10.18 p.m. That is less than five minutes from now.
(Mayo): I regret that the Minister has filibustered once again and that we did not reach yet another draconian aspect of the legislation, namely, the Garda snatch squad, house detention and jail—
That has been debated.
(Mayo): The Minister was not here for it. He sent in the Minister of State.
I know how much the Deputy missed me, and I could not be here, but the facts are that it has been debated already.
(Mayo): Deputy Joe Higgins and myself are seeking to delete this subsection and to retain the status quo. The right of appeal to the various levels of the courts is fundamental and this subsection is putting another obstacle to the right of access to people from outside the jurisdiction to have their cases heard. To say it is adequate to expect the High Court to overturn its own decision – that is what the Minister is effectively saying here – and then set down exceptional public importance as the guiding principle, is most unfair.
Under the Geneva Convention we have given people the right to seek refugee status in countries when they are fleeing from degrading and inhuman treatment, yet we are now subjecting them to almost equally degrading and inhuman treatment by depriving them of the fundamental human right to have access to the courts to have their cases heard from the bottom to the top level. If the final decision is that they should be deported, so be it, but what the Minister is doing is most unfair. As we warned him earlier, in seeking to graft on to the Bill two fundamental changes on Committee and Report Stages, the Minister is defeating the whole thrust of what started out as a worthwhile project but which will die a death. As a result, there will not even be the limited protection that currently exists for people coming into the country in containers. The sad reality is that, as Deputy Howlin has warned, we could have another Dover in any of our sea ports over a humid summer period.
(Dublin West): The reason this is an attack on human rights by the Government is because it puts poor people and vulnerable people at a disadvantage compared to people and institutions that are far more powerful in Irish society. If a major bank and a large business enterprise were at each other's throats before the High Court in a dispute over filthy lucre – grubby fingers in the cash till – would the Minister come in here to try to stop whoever loses the case going to the Supreme Court? That is what he is doing on behalf of people who do not have that economic or legal clout, people who are in an extremely vulnerable position. The Minister's argument is that this is intended to streamline procedures. If it streamlines procedures for poor people who are seeking refuge in this country, then it will streamline them for all institutions including bankers, big business, multinational companies and all the others who can buy their way through the Supreme Court, the High Court and every court in the land, and spend months and years doing it as long as they can come up with the money, which they invariably can do. Poor people, however, who are displaced from their countries do not have such clout or money yet the Minister is severely limiting their access to the courts and their appeal to the Supreme Court, the highest court according to our legal system, and he tells us that is not an attack on human rights. It is an attack on human rights; any ordinary person knows that.
I have no confidence in the safety guaranteed by the Minister for people who will be sent back to extremely repressive regimes. We will have tragedies if the Minister has his way because people will be sent back to countries where they will be severely abused, incarcerated and perhaps even killed. Unfortunately we might not hear about it but that is the responsibility the Minister carries for bringing in this type of an attack on human rights.
The time permitted for this debate having expired, I am required to put the following question in accordance with an Order of the Dáil of this day: "That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed".
Question put.
Tá
|
Ahern, Dermot.Ahern, Michael.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Cullen, Martin.Dempsey, Noel.Dennehy, John.Doherty, Seán.Ellis, John.Fahey, Frank.Fleming, Seán.Flood, Chris.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan. |
Killeen, Tony.Kirk, Séamus.Kitt, Tom.Lenihan, Brian.Lenihan, Conor.McDaid, James.McGennis, Marian.McGuinness, John.Martin, Micheál.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Keeffe, Ned.O'Malley, Desmond.Power, Seán.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Treacy, Noel.Wade, Eddie.Wallace, Dan.Wallace, Mary. Wright, G. V. |
Níl
|
Barnes, Monica.Barrett, Seán.Belton, Louis.Broughan, Thomas.Browne, John (Carlow-Kilkenny).Bruton, Richard.Burke, Liam.Burke, Ulick.Carey, Donal.Clune, Deirdre.Cosgrave, Michael.Coveney, Simon.Crawford, Seymour.Creed, Michael.Currie, Austin.D'Arcy, Michael.Deasy, Austin.Deenihan, Jimmy.Durkan, Bernard.Farrelly, John.Gormley, John. |
Hayes, Brian.Higgins, Jim.Higgins, Joe.Hogan, Philip.Howlin, Brendan.McCormack, Pádraic.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.Mitchell, Olivia.Neville, Dan.Ó Caoláin, Caoimhghín.Owen, Nora.Perry, John.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Sheehan, Patrick.Stanton, David.Timmins, Billy.Upton, Mary. |
Tellers: Tá, Deputies S. Brennan and Power; Níl, Deputies Barrett and Rabbitte.
Question declared carried.