Immigration Bill 2002 [ Seanad ] : Report Stage (Resumed) and Final Stage.

Amendments Nos. 2 to 4, inclusive, are out of order.

Amendment No. 7 is related to amendment No. 5 and amendments Nos. 13 and 14 are cognate. Amendments Nos. 5, 7, 13 and 14 may be discussed together by agreement.

I move amendment No. 5:

In page 4, line 22, to delete "persons" and substitute "non-nationals".

I welcome the Minister of State. I notice that his lordship has not arrived himself. I have just noticed that the legislation was originally printed on yellow paper indicating it was a Seanad Bill. It is now printed on green paper. What is the status of the legislation? Has it now been metamorphosed into a Dáil Bill?

Section 2, which provides for carrier liability, makes no distinction between non-nationals and citizens. I am proposing that such a distinction should be made. It is invidious and improper for Irish citizens to be rounded up, so to speak, by a carrier in any vehicle and to be presented to an immigration officer by a carrier. Irish citizens do not have to obtain permission from anybody to enter Ireland. The onus is now on the carrier to ensure that each Irish citizen's passport and visa are valid and that everything is in order in that respect. It is improper for them to present the citizen to an immigration officer. The distinction should be made.

In this legislation, we are passing on the responsibility of immigration officers regarding access to this country to an employee of an individual carrier who is totally untrained and has no experience in what is required. How will such a person know if a passport is valid or invalid and whether documentation is in order? This seems to be the wrong approach.

The distinction I seek is necessary and should be made in law in any case. On the other side of the coin, no distinction is made as to whether the non-nationals being dealt with will be seeking asylum. The Minister has refused to accept any amendment that would allow the distinction to be made other than for asylum seekers on board a vehicle seeking to land. The effect of the section will be to remove the possibility of any genuine asylum seeker ever having the opportunity to land in Ireland.

Yesterday the Irish Human Rights Commission notified Opposition Members of its grave concerns about this legislation. From newspaper reports, I note that it also communicated with the Minister for Justice, Equality and Law Reform even though he gave us no indication of that when speaking in the House last night. The commission is particularly concerned with the carrier liability aspect of the legislation. A document it circulated to us states that the carrier sanctions "may thwart legitimate claims to asylum by impeding access to the territory of the State on the basis that a person does not have adequate travel documentation". It goes on to indicate that article 14 of the Universal Declaration of Human Rights, article 31 of the convention relating to the status of refugees and article 33 of the convention on non-refoulement may all be breached by these proposals.

The commission outlines a very specific example of a Council of Europe resolution on asylum to persons in danger of persecution where the committee of members, to which Ireland was doubtless a party, stated:

Governments should ensure that no one shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to or remain in a territory where he would be in danger of persecution for reasons of race religion nationality, membership of a particular social group or political opinion.

These are clearly the issues the commission would have put to the Minister if it had been granted the opportunity to do so. I am in accordance with those views, which have been put not only by the Irish Human Rights Commission but also by various other organisations with an interest in human rights, including Amnesty International. The Irish Human Rights Commission quotes the UNHCR regarding its concern about the manner in which carrier liability is being introduced into this jurisdiction.

The carrier liability provision is confusing in the manner in which it is presented because no distinction is made between non-nationals, those seeking asylum and Irish citizens. The broader thrust of the section is to try to impede anybody having the right to apply for asylum in this country and to impose the onus on the carrier and take it away from the immigration officer, thereby creating a whole new responsibility under penalty of very severe fines on carriers whose employees are inexperienced and untrained to do the job they are now being asked to do by the State.

I would like to answer some specific points raised by Deputy Costello. This is still a Seanad Bill, which will have to go back to that House to seek approval for the amendments agreed in the Dáil. I am informed that the Minister only received the letter from the Irish Human Rights Commission late this morning after it had already been reported in the newspapers.

Section 2(1) applies to persons who arrive in a vehicle from a place outside the State other than the common travel area. The requirement in sections 2(1)(a) and 2(1)(b) is for the carrier to ensure that everyone on his or her vehicle disembarks in compliance with any directions given by an immigration officer and that everyone on the vehicle is presented to the immigration officer.

The requirement in section 2(3)(a) is that everyone in the vehicle be listed when this is sought. These requirements cannot be confined to non-nationals in reality. Do the proposers of these amendments expect a carrier to separate Irish passengers from others in the context of complying with a simple direction to disembark or any of the other requirements, which are all pretty simple? Undoubtedly that would lead to interminable delays and confusions at ports and airports and to far greater inconvenience for carriers and passengers than compliance with the straightforward and simple requirements of the Bill as it stands.

The Government proposals have been loudly criticised by many non-governmental organisations. One of the principal criticisms is that carrier liability proposals will turn carrier staff into immigration officers. The proposals in the Bill will do nothing of the sort but these amendments certainly would. Carrier staff would be obliged by these amendments to sort out Irish passengers from others to ensure they are dealt with under the separate immigration processes for both classes envisaged in the amendments. In other words, carriers will be obliged to do a pre-landing check on the immigration status of their passengers. The impracticability of doing this is obvious.

This type of provision, furthermore, provides a red carpet for those who wish to abuse immigration controls. If a person in charge of a vehicle does not wish to co-operate with the immigration authorities, refuses to comply with any of the requirements and simply asserts that all the people on board are Irish, what is the immigration officer to do? How can the truth of the assertion be verified? It simply could not be done because these amendments would exclude power to carry out verifying checks.

We considered the points raised by Deputies Costello and Ó Snodaigh on Committee Stage concerning the example of the Irish person returning by yacht from Calais. We appreciate the point raised. However, on reflection, I do not see how the requirements that all passengers be present can be overcome without leaving a gaping hole in the carrier liability arrangements. Immigration officers are available in every superintendent's district and are accessible at approved ports and airports.

These amendments are impractical, and any awareness of the reality of passenger management at our airports will bear this out. Carriers, as a matter of routine, co-operate with the immigration authorities because it is not only good practice, but also good business to do so. Again, I ask the Opposition Deputies to withdraw these amendments on the basis that they simply will not work.

What the Minister of State is proposing will be difficult to work when the burden of responsibility is placed on the carrier to make it work. All people entering this country will, first and foremost, be vetted by carriers. What authority does a carrier have to vet an Irish citizen? There is a major constitutional question about this. The carriers will vet passports and visas and give people directions to disembark. While the Minister of State has no problem with the carrier giving directions to land, he has problems with the carrier doing a pre-landing check on passports to see whether they are Irish or non-national. That has to be done anyway.

The legislation specifically states that the carrier has to ensure there is a valid passport or other equivalent documents. Once that is checked, it will be known whether the person is an Irish citizen. It is sauce for the goose and sauce for the gander. He cannot have both ways. The Minister of State strayed into the murky area of the fog across the channel when the Progressive Democrats yachtsman from Dún Laoghaire went across to Cherbourg on a day trip.

There was the famous Democratic Left man who was a member of the Royal Yacht Club.

We are talking about the party of the Minister for Justice, Equality and Law Reform, Deputy McDowell. It is a reasonable example that members and at least supporters of the Progressive Democrats would be the type of individuals who might go on such yachting trips. He did not demur at the suggestion by any means.

That is a generalisation.

If he or she went across to France on the yacht for a shopping trip, returning to Dún Laoghaire in the evening, the skipper of that yacht would have to ensure that all persons on board appeared before an immigration officer. The legislation is specific on this issue. It states, "All persons on board the vehicle seeking to land in the State are presented to an immigration officer for examination in respect of leave to land." While the Minister of State says that he considered that section since we raised it on Committee Stage, he has not said how he is going to get around this difficulty. What happens if the carrier does not find an immigration officer in Dún Laoghaire when they arrive back from a day trip?

Arising out of this legislation, there will be a specific statutory onus on the carrier that was not there before. If there are people in the crew or on board who are travelling in such a case, they will have to be presented by the carrier to the immigration officer before they land. Their passports and travel documents must be checked. The Minister of State is making no distinction between Irish nationals and non-nationals, which is what I am doing. By refusing to make a distinction, the carrier now has a statutory responsibility. An offence will be created under this legislation if this rule is not adhered to and a penalty will be imposed. That issue needs to be addressed.

I disagree with Deputy Costello's contention that we are turning carriers into immigration officers. What we are doing is improving the controls on preventing illegal immigration. It is a problem that has been with us for some time, costing much money and causing public anxiety. There is support for the proposals we are putting forward. It is impossible to absolutely control this area. We are involving carriers in the process but they are not being turned into immigrations officers.

As I understand the legislation, carriers are being asked to carry out a rudimentary check. They will be informed what to look for in respect of false documents. They simply have to check people's documents to see if they are in order or seem to be in order. When they reach the frontiers of the State, if they are requested by an immigration officer to ask people to present themselves, they simply do that.

I have listened carefully to what Deputy Costello says, as I always do, and I cannot see any basis for distinguishing between nationals and non-nationals. All the carrier has to do, if requested by the immigration officer, is direct people to disembark for the officers to check documents. It makes no sense to have a situation where carriers ask non-Irish people to disembark while every person they are satisfied with as being Irish can stay on. I also do not believe there is any great issue of human rights involved in this case.

I accept the point about the carrier doing an initial check on the documentation, but it is not a detailed check. It is a rudimentary check to see if the documents are in order. If a person brings somebody into the State whose documents are manifestly not in order, they are liable to certain penalties. The average, reasonable person on the street will say that is a sound proposal based on logic and common sense.

Returning to the example of shopping trips and yachts etc., it is the immigration officer who will ask for people to disembark if he feels it necessary to do so. That is a matter within his or her discretion.

That is the subject of another of my amendments.

We will come to that.

Maybe not.

The reality is that if somebody comes back from a shopping trip in a yacht or other means of transport and they have too much alcohol or tobacco, there are customs implications. There may be contraband people as well as contraband tobacco and alcohol. The fact that somebody happens to come into a quiet, peaceful place in west Cork back from a genteel shopping trip should not mean that he or she is not to be subject to the same controls as anybody else. That is the view of most reasonable people. I understand the point of view put forward by human rights organisations. I also understand why certain people have to be seen to take certain stances, but in so far as people in the legal profession are concerned, those who know something about this area with whom I have discussed the legislation, they think the requirements on carriers are perfectly reasonable. They do not think they are unduly onerous. They think the legislation will be effective in controlling the flow of illegal immigration, which is its principal objective.

I will not pursue it any further because we do not have much time. A specific onus is put on the carrier to present everyone on board to the immigration officer. That is a new statutory duty which did not previously exist and its implementation, whether it is in west Cork or Dún Laoghaire, will create a major problem.

The section clearly specifies that the carrier must check the authenticity of the documentation. Repeated reference is made to the validity of the documents. It is not merely specifying a cursory perusal of the documentation, it is demanding the authenticity.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 6:

In page 4, line 25, after "officers," to insert "if required to do so by such directions (if any),".

We are dealing with amendments Nos. 6 and 8.

Is it agreed that one decision should suffice in respect of amendments Nos. 5, 7, 13 and 14? If Deputies so request, separate decisions will be allowed. Amendments Nos. 6 and 8 are related and they will be taken together by agreement.

I think the result will be the same, so I agree to it. Perhaps at this stage the Minister of State might indicate if he is prepared to accept any of the amendments so that we will know where we stand.

No, other than Opposition amendment No. 1 to amendment No. 26, as has already been indicated.

Amendment, by leave, withdrawn.
Amendments Nos. 7 and 8 not moved.

Acting Chairman

Amendments Nos. 10 and 11 are alternatives to No. 9. Amendments Nos. 12 and 15 to 17, inclusive, and 19 are related. Amendments No. 16 is an alternative to amendment No. 15. These amendments will be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 9:

In page 4, to delete lines 29 to 34.

The Minister is trying to assert the principle of carrier liability. This will force untrained airline staff, ferry staff, and now train staff, into the role of immigration officers. The protection of human rights will be devolved to commercial entities thereby giving rise to a risk of indiscriminate prevention of individuals from entering Irish territory to claim asylum.

The Minister of State managed to insult many people by saying that there are those who have to be seen to be taking a position. The concerns expressed by me and other Deputies are deeply held. The same is true for those in the UNHCR, Amnesty International, the Human Rights Commission and the Irish Refugee Council. They have put a great deal of effort into examining this matter and trying to explain their position, in spite of the Minister's attempt to railroad this legislation through the Houses of the Oireachtas. Those concerns are valid and the Minister of State should take on board the need to strike out this section on carrier liability.

Any measure which directly or indirectly obstructs asylum seekers from entering this territory, is incompatible with international law, in particular with Article 31.1 of the 1951 UN refugee convention. The effect of carrier liability as presented in this legislation would fall into that category.

A state's right to control its borders is not absolute. It has to be proportionate and humane and the denial of entry into the State on the basis of a lack of proper documentation will remove access to the asylum apparatus established under the Refugee Act 1996. The proposed legislation is without any mechanism for transparency, accountability or means of appeal. My party and other Deputies are in agreement with the human rights organisations that this section should be removed and that my amendments to this section, particularly amendment No. 9, should be accepted.

It is well known that people fleeing from persecution are forced to travel with incorrect and incomplete documentation. Denied regular means of transport as a consequence of this legislation, refugees will be driven, as I said on Committee Stage, to resort to dangerous means of travel. This section will force many asylum seekers into the hands of smugglers and into the back of freight containers. We saw the tragic results of this practice in Wexford and in other countries.

As the Minister said on Committee Stage, other European countries have introduced carrier liability legislation. The results, however, have been horrific. Many refugees, forced into irregular transport means, have been drowned, frozen or suffocated en route. As of 20 November 2002, nearly 3,500 asylum seekers have died trying to access the fortress Europe which is being created by legislation such as this, and these are only the documented cases. This section will increase the potential for such gruesome and unnecessary episodes to continue.

As drafted, this section on carrier liability does not allow for any asylum-related defences to liability. The UNHCR stated that such measures interfere with the ability of persons at risk of persecution to gain access to safety and that this is incompatible with international human rights and refugee protection principles, notably Article 14 of the Universal Declaration of Human Rights, according to which each person has a right to seek asylum, and Articles 31 and 33 of the 1951 refugee convention. The UNHCR strongly argued that carrier's liability should not apply to refugees and asylum seekers. I agree with this position, as do many other bodies. We are opposed to the section in its entirety. I urge the Minister of State to adopt amendment No. 9. even at this late stage. The Minister has indicated that he is not willing to accept even practical amendments from the Opposition.

Acting Chairman

As it is now 1.30 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That amendment No. 1 to amendment No. 26 and the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of, including those in respect of which recommittal would in the normal course be required, are hereby made to the Bill, that Fourth Stage is hereby completed and the Bill is hereby passed."

Question put.

Ahern, Dermot.Ahern, Michael.Ahern, Noel.Ardagh, Seán.Aylward, Liam.Brady, Johnny.Brady, Martin.Brennan, Seamus.Browne, John.Callanan, Joe.Callely, Ivor.Carey, Pat.Carty, John.Cassidy, Donie.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cregan, John.Cullen, Martin.Curran, John.Davern, Noel.Deasy, John.Dempsey, Tony.Dennehy, John.Devins, Jimmy.Ellis, John.Fahey, Frank.Finneran, Michael.Fitzpatrick, Dermot.Fleming, Seán.Fox, Mildred.Gallagher, Pat The Cope.Glennon, Jim.Hanafin, Mary.Haughey, Seán.Hoctor, Máire.Keaveney, Cecilia.Kelleher, Billy.

Kelly, Peter.Killeen, Tony.Lenihan, Brian.Lenihan, Conor.McDaid, James.McEllistrim, Thomas.McGuinness, John.Martin, Micheál.Moynihan, Donal.Moynihan, Michael.Mulcahy, Michael.Nolan, M. J.Ó Cuív, Éamon.Ó Fearghaíl, Seán.O'Connor, Charlie.O'Dea, Willie.O'Donnell, Liz.O'Donovan, Denis.O'Flynn, Noel.O'Keeffe, Ned.O'Malley, Fiona.O'Malley, Tim.Parlon, Tom.Power, Peter.Power, Seán.Ryan, Eoin.Sexton, Mae.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Dan.Wallace, Mary.Walsh, Joe.Wilkinson, Ollie.Woods, Michael. Wright, G. V.


Allen, Bernard.Boyle, Dan.Breen, James.Broughan, Thomas P.Bruton, Richard.Burton, Joan.Connaughton, Paul.Connolly, Paudge.Costello, Joe.Coveney, Simon.Cowley, Jerry.Crawford, Seymour.Crowe, Seán.Cuffe, Ciarán.Deenihan, Jimmy.Durkan, Bernard J.English, Damien.Ferris, Martin.Gilmore, Eamon.Gogarty, Paul.Gregory, Tony.Harkin, Marian.Higgins, Joe.Hogan, Phil.Howlin, Brendan.McCormack, Padraic.McGrath, Finian.

McGrath, Paul.McManus, Liz.Mitchell, Olivia.Morgan, Arthur.Murphy, Gerard.Naughten, Denis.Neville, Dan.Ó Caoláin, Caoimhghín.Ó Snodaigh, Aengus.O'Dowd, Fergus.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Pattison, Seamus.Penrose, Willie.Perry, John.Rabbitte, Pat.Ring, Michael.Ryan, Eamon.Ryan, Seán.Sargent, Trevor.Sherlock, Joe.Shortall, Róisín.Stagg, Emmet.Stanton, David.Upton, Mary.Wall, Jack.

Tellers: Tá, Deputies Hanafin and Kelleher; Níl, Deputies Durkan and Stagg.
Question declared carried.
Sitting suspended at 1.45 p.m. and resumed at 2.30 p.m.
Ceisteanna – Questions (Resumed).