Immigration Bill 2002 [ Seanad ] : Report Stage.

Recommittal is necessary in respect of amendment No. 1 as it does not arise from Committee Stage proceedings.

Bill recommitted in respect of amendment No. 1.

Amendments Nos. 1 and 26 and amendments Nos. 1, 2 and 3 to amendment No. 26 are related and may be discussed together by agreement.

I move amendment No. 1:

In page 4, line 4, after "boat," to insert "railway train,".

The principal amendment to be discussed in this group is amendment No. 26, which inserts a new section 5 into the Bill. With the permission of the House I will concentrate on that amendment, since amendment No. 1 is simply a consequential drafting amendment to the interpretation section.

The new section restates the law governing the removal of persons refused leave to land and in doing so gives effect to certain of our Schengen obligations in this area. Every state that operates immigration controls at its borders has provisions for the follow through to those controls, namely, ensuring that people who have been refused leave to enter the state are removed, usually to where they have just arrived from, as soon as possible. Without that, the controls are meaningless. There is broad acceptance that Ireland must have immigration controls and accordingly, we need to ensure that the removal process for people refused leave to land works effectively.

The Amsterdam treaty imported into European law the content of the Schengen Agreement, which is operated as the basis for free movement of people among some of the continental member states of the EU. Due to the fact that the UK did not wish to participate fully in the free movement provisions, it negotiated a protocol to the treaty whereby it could choose which elements of the acquis it would share. Given the importance to Ireland of the common travel area arrangements between ourselves and our neighbours in the UK, we negotiated our own protocol enabling Ireland to participate in Schengen to the greatest degree possible consistent with maintaining the common travel area. In line with that policy we have opted into Articles 26 and 27 of the Schengen Agreement and thus into the various Council directives which supplement those articles. Article 26 is concerned with the operation of entry controls, as is the associated directive, Council Directive 2001/51/EC. The provisions of sections 2 and 3 of this Bill fulfil Ireland's obligations under those instruments as far as carrier liability is concerned. This new section will implement our remaining obligation under the instruments. Those obligations relate to the removal of persons refused leave to enter the State and the role of carriers in facilitating that process.

Subsection (1) of the new section inserted by the amendment is more or less in line with the present law. It sets out to whom these arrangements apply – in general terms, non-nationals who have just arrived at a port or airport and have been refused leave to land by an immigration officer on any of the 13 grounds provided for in Article 5(2) of the Aliens Order 1946 and non-nationals who have been apprehended within the State having entered irregularly in breach of this order. The proposed section will not apply to anyone who last arrived in the State more than three months before coming to notice. The removal of such a person must take place through the deportation process.

Subsection (2) provides the power of arrest and detention to an immigration officer or a member of the Garda Síochána in respect of a person refused leave to land. That is also in line with the present law, but with one important exception, set out in paragraph (b) of the subsection. Persons under the age of 18 are excluded from detention. This is not provided for under the present law relating to removal following refusal of leave to land. Young people who arrive in the State unaccompanied are covered by section 8(5) of the Refugee Act 1996, which provides that the local health board should take control of the child in those circumstances. Paragraph (d) sets out the involvement of the health board where the parents are detained for removal under that section. This is similar to the provisions for that situation where a deportation order has been enforced.

Subsection (3) is also modelled on the provisions in the Immigration Act 1999 relating to the deportation process. The subsection makes it clear that detention under this provision is for the purpose of removal, which should take place as soon as practicable, and that detention cannot go on for more than a total of eight weeks. The subsection sets out the periods, similar to the deportation provisions, which are not to be included when reckoning the total of eight weeks. Subsection (4) is also modelled on the deportation provision and concerns the question of detention where court proceedings are taken challenging the removal.

Subsection (5) sets out the choice of places, based on the Schengen instruments, to which a refused person may be sent. The most usual outcome, at paragraph (a), is that the person is returned to the place where he or she last embarked for the State. Paragraph (b) deals with the case of a person refused leave to land while in transit through the State, where the carrier due to take the person out of the country refuses to board the person or the authorities of the state of destination have refused the person entry to the State and sent him or her back to Ireland. In those circumstances the usual procedure is for the person to be returned to the state of his or her original embarkation. Other options are to send the person to the state that issued his or her passport or travel document, which is catered for in paragraph (c), to the country of nationality – paragraph (d) – or, as set out in paragraph (e), to any country in which the person is guaranteed entry.

Subsections (6) and (7) address the logistics of actual removal in the same way as at present. Similar provisions are to be found in the 1999 Act for removal and deportation cases. Subsections (8) and (9) require co-operation with the removal and make it an offence to hinder the process. Subsection (10) gives to an immigration officer or member of the Garda Síochána the power to issue directions to a carrier for the purpose of returning a person brought in by that carrier, where the carrier is known, which is the case in the majority of refusals to land. These new powers are an enhancement of the present powers. The enhancement arises directly from the Schengen instruments. Most importantly among these new features, paragraph (d) of subsection (10) allows alternative arrangements for removal to be made where the carrier fails or is unable to comply with the direction. Under paragraph (e), the costs incurred in those alternative arrangements in terms of maintenance, detention or removal may be recovered from the carrier as a simple contract debt through the courts.

Under subsections (11) and (12), failure to comply with a direction is an arrestable offence. Subsection (13) repeals the provisions of the Aliens Order 1946, which are now superseded by the provisions of this section. Subsection (14) is a transitional provision. I commend amendments Nos. 1 and 26 to the House and I propose to accept Deputy Costello's amendment No. 1 to amendment No. 26.

I thank the Minister for indicating that he will accept that important amendment which will certainly help to ensure that the section operates under international United Nations conventions.

As regards the Minister's amendment No. 1, I cannot for the life of me see why he proposes to add a railway train to the list of carrier vehicles. We still do not have a chunnel between Ireland and France or Spain. Even travelling by Luas or metro, it is very unlikely that we will ever get around to building such a direct link.

There is a Border between us and Northern Ireland, across which trains travel.

Yes, but the Bill specifically excludes Great Britain and Northern Ireland and the Channel Islands from carriers' liability.

They are excluded from section 2 but not from this section.

What is the sense of having carrier liability if it is excluded from the penalty provisions? This is like introducing a particular interpretation but saying that it is not applicable.

This does not concern carrier liability, it simply concerns a refusal to land in the State. It is not connected with carrier liability which is from outside the common travel area.

Can we be clear about this? Section 1(1) defines "vehicle" as including "any ship, boat, aircraft or mechanically propelled vehicle within the meaning of the Road Traffic Act 1961". The Minister is now adding a railway train to that list. Section 2(1) refers to a vehicle arriving in the State, so does that not include a railway train? The definition of "vehicle" is now extended in section 1 to include a railway train but this is the same vehicle we are talking about in section 2(1). Surely there is not a second definition of what constitutes a vehicle. So, where a vehicle arrives in the State from a place other than Great Britain or Northern Ireland, that definition includes a railway train, yet it is impossible for a train to arrive in the State other than from Northern Ireland. I cannot see how we are going to do it unless we have a railway tunnel running under the sea from Britain, or an almighty bridge from Stranraer to Larne.

When they start tunnelling for the Luas, who knows where they might end up?

That is a good question.

On a serious note, the definition of "vehicle" does not relate simply to carrier liability, it applies across the Bill.

I thought the purpose of the definition was to define what applied to carrier liability.

If the Minister assures me, however, that it has nothing to do with carrier liability—

That is correct.

—I will accept his word for it. Amendment No. 26 is a substantial one running to six pages. It is evidence of what I was saying earlier; this Report Stage amendment was only made available yesterday. The amendment is almost a contradiction in terms because the explanatory wording in the margin states that it refers to the "removal from the State of persons refused leave to land". It is very difficult to remove somebody from the State if he or she has not been allowed to land there, unless the Minister means that "the State" includes the territorial waters.

My amendment No. 1 to amendment No. 26, which the Minister intends to accept, requires the insertion of "section 4 of the Criminal Justice (United Nations Convention Against Torture) Act 2000". The amendment will have the effect of increasing protection for people who will be subject to this legislation.

Section 26(3)(a) states

A person arrested and detained under this section may, subject to subsection (4), be detained only until such time (being as soon as practicable) as he or she is removed from the State in accordance with this section but, in any event, may not be detained for a period exceeding 8 weeks in aggregate.

My amendment No. 2 to amendment No. 26 seeks after "practicable" to insert "but subject, in the case of a person who informs any member of the Garda Síochána, authorised person or immigration officer in whose custody he or she is of his or her intention to seek legal advice, to a reasonable opportunity being given to avail of such advice." An entitlement to legal advice should be included in the section in order that such advice would be made available if sought. This protection is expected under the 1951 Geneva Convention.

Amendment No. 3 to amendment No. 26 relates to the choice of country. The other two amendments are technical.

I am opposing amendments Nos. 2 and 3 to amendment No. 26. Amendment No. 2 to amendment No. 26 refers to legal services but we cannot have a court case every time somebody lands or seeks admission to the State.

Amendment No. 3 to amendment No. 26 introduces another complicating factor, which is a choice of destination for a person refused leave to land. In fact, most people do not have a choice in these circumstances and the real problem is for the Irish authorities to identify a state to which they can be returned. I do not propose to confer that choice on the arriving person. If people are refused leave to land, a practical and workable immigration law requires that the Irish State should make the decision as to where they are sent back.

Amendment agreed to.

An Leas-Cheann Comhairle:

Amendments Nos. 2 and 3 are out of order.

On a point of order, can somebody explain to me why amendment No. 2 has been adjudged to be outside the scope of the Bill?

An Leas-Cheann Comhairle:

It is outside the scope of the Bill and that is why it has been ruled out of order.

Can somebody explain why integration is outside the scope of the Immigration Bill?

An Leas-Cheann Comhairle:

The Deputy will have to contact the Office of the Ceann Comhairle because it is not appropriate to discuss it now.

No one is getting anything from the Ceann Comhairle's office. Integration is part and parcel of the immigration issue so I would like an answer.

An Leas-Cheann Comhairle:

This is not the appropriate way to deal with such a query. There is a long-standing precedent that it is not a matter for discussion in the House.

The first time I raised this matter on Committee Stage, I was told that my proposal would incur a charge on the Exchequer and that is why it was ruled out of order.

An Leas-Cheann Comhairle:

It is not a matter for debate in the House.

We changed the wording to ensure it would not incur such a charge, yet it is still adjudged to be outside the scope of the Bill.

An Leas-Cheann Comhairle:

It is not a matter for debate in the House.

Integration is part and parcel of an Immigration Bill. Section 5 provides for the establishment of a refugee advisory board but my amendment provides for a multi-cultural integration monitoring committee in various Departments. Can somebody tell me what is the difference?

An Leas-Cheann Comhairle:

As I have explained to the Deputy, it is not a matter for discussion in the House and never was.

Can somebody explain why?

An Leas-Cheann Comhairle:

We cannot create precedents now.

Can somebody tell me how this amendment has been adjudged to be out of order?

An Leas-Cheann Comhairle:

It never was a matter of debate in the House, Deputy.

Who has the power to decide?

An Leas-Cheann Comhairle:

If the Deputy contacts the Ceann Comhairle's office the matter will be explained. That is, and always was, the normal procedure.

Would the Minister like to explain why?

An Leas-Cheann Comhairle:

It is not a matter for the Minister.

The Minister had no hand, act or part in this.

Who makes these decisions?

The Bills Office.

An Leas-Cheann Comhairle:

As I said, the Deputy should contact the Ceann Comhairle if he wishes to have the matter explained to him.

Did the Department of Justice, Equality and Law Reform make this decision, or the Ceann Comhairle?

An Leas-Cheann Comhairle:

The Ceann Comhairle's office.

How in God's name does the Ceann Comhairle make a decision with regard to integration in an Immigration Bill?

An Leas-Cheann Comhairle:

We are not debating the matter here and cannot do so.

Is it your office?

An Leas-Cheann Comhairle:

Not my office, the Office of the Ceann Comhairle.

If the Leas-Cheann Comhairle cannot explain this, why is he ruling the amendment out of order?

An Leas-Cheann Comhairle:

We are not debating the matter. I am not entering into discussion or debate. This is completely out of order.

Nobody can explain why this is out of order

An Leas-Cheann Comhairle:

New procedure cannot be adopted or precedent created for the Deputy.

Debate adjourned.