Immigration Bill, 1999: Committee and Remaining Stages.
NEW SECTIONS.
I move amendment No. 1:
In page 3, before section 1, to insert the following new section:
"1.–Pending the making of a deportation order any person who has applied for asylum and who has been in the State for over 3 months may apply for and be granted a work permit by the Minister for Enterprise, Trade and Employment notwithstanding any condition imposed by the Department of Justice, Equality and Law Reform.".
I welcome the Minister to the House. We regard the provision in this amendment as a basic human and civil right, namely, that all human beings should be entitled to earn their bread by the sweat of their brow. There should be no case in which people are denied the right to work. We are specifically referring to asylum seekers, but also to the broader context so that anybody who has applied for asylum and has been in the State for over three months should be entitled to get a work permit from the Minister for Enterprise, Trade and Employment.
The reason for the amendment has been well rehearsed throughout the country and has been debated on numerous programmes. There has been a considerable delay in processing applications and quite a number of people have been waiting years before getting an outcome to their application for asylum. Even if the response is negative there may be an appeal and a further considerable delay. This is due to mechanisms which are inadequate. I know we are trying to improve the operation of the process, shorten the period of time involved and provide a more accountable and transparent mechanism.
However, in the meantime, large numbers of people are being consigned to the dole. These people have not a penny in their pockets and have no means of earning a livelihood because they are strictly forbidden from doing so. They are entirely at the mercy of the State for a roof over their heads, shoes on their feet and bread on the table. It is very kind and benevolent of the State to make such provision, but it is made against the backdrop of a people unaccustomed to immigration. Rather it is accustomed to emigration and seeking to earn a living abroad.
The perception that lazy layabouts who are good for nothing and are not interested in working are sponging from the State is creating quite an amount of hostility. Rumours abound that people seeking asylum are in receipt of far greater social welfare benefits than the indigenous population. This is untrue, but it does not prevent the perception from spreading. The problem is that the current position creates an ethos which is very much anti asylum seeker and anti-refugee. The ethos can be hostile, can bring out the worst in people and lead to racism and xenophobia. To ensure this does not happen we earnestly ask the Minister to consider giving people the opportunity of supporting themselves and their families by allowing them to work in a dignified fashion. Dignity comes with employment and being independent in terms of supporting oneself.
There has been a division of opinion in the Cabinet in relation to this matter, with certain Ministers in favour and other against the idea. Some deliberations may yet be taking place which have not been finalised. This legislation is about the control of non-nationals and seems to be a negative package of proposals. In that context we ask the Minister to include one ray of hope in the Bill for people in the country who for the most part are seeking refuge from persecution or from a poor economy in other countries.
Over many years, very many of our nationals have been economic refugees. One reason our nationals left was because of persecution during the Famine and subsequently, but by and large they went abroad because of the economic circumstances in the State. Asylum seekers who are the parents of children born here should be automatically given the right to work once their immigration status has been determined. They are not considered to be refugees. They have a legal entitlement to reside here and they should automatically be given the right to work without further application.
There are people who have been here for a number of years who cannot work because their applications have not yet been processed. There are others who have had children in this country who are denied the right to work because their applications have not yet been processed. If we intend to allow people to reside here, it is ridiculous to prohibit them from working or expect them to jump through hoops before we allow them apply for the right to work. I ask the Minister to address both those aspects because they would be beneficial.
The Minister will be aware of the survey done by University College Dublin which determined that almost 80 per cent of people who apply for refugee status are recipients of some form of third level education. We are talking about many people who have skills, talents and professional abilities to offer but they are not being given the opportunity to do so.
This is probably one of the most important amendments before the House. I would be delighted if the Minister saw fit to accept it because it would make the lot of those applying for refugee status so much better. If the Minister could also provide that anybody who has become the parent of a child would receive the automatic right to work, it would be a good day's work.
I support the amendment. I agree with my colleague, Senator Costello, that of the 68 amendments tabled, this is one of the most important. The issue of debarring asylum seekers from working has become the defining feature of the way this country has treated asylum seekers. It is unfortunate that at a time of unparalleled economic prosperity, when our State agencies are trawling other countries for skilled people to work here to ensure that our tiger economy continues, we should be refusing people who are entitled to work the right to do so.
I ask the Minister to examine the amendment carefully. It is not designed to open the floodgates and allow anybody and everybody to work in the State. The amendment provides that those who have been in the State for over three months may apply for and be granted a work permit by the Minister for Enterprise, Trade and Employment. Under the existing rules, one cannot automatically get a work permit from the Department of Enterprise, Trade and Employment. Certain conditions must be satisfied. There is no valid reason the conditions could not be applied to asylum seekers as to anybody else in any reasonable approach to the issue.
This is a reasonable, workable and fair amendment. I draw the Minister's attention to comments made by Mr. John Dunne of IBEC in the Sunday Business Post last Sunday in the course of an article on the way Irish law forbids asylum seekers from working while their applications are being processed. Mr. Dunne said that he agrees with the Minister that “giving out permits willy-nilly” would lead to “all sorts of problems, particularly if the asylum application is subsequently refused”. That is a perfectly reasonable remark by Mr. Dunne. He goes on to say that it should be possible to devise a regime to allow certain people to work.
It is pointed out in the same article that asylum seekers under a certain regime would only receive a work permit if an employer agreed to take them on, and the permit would only be good for that job. That appears to be in parallel with the existing conditions set out by the Department of Enterprise, Trade and Employment in issuing work permits. As a matter of interest, in the same article, the Minister's party colleague, Deputy Marian McGennis, urges more positive attitudes towards a multicultural Irish society. She said: "Politicians need to be courageous on this issue and show a bit of leadership even though it is a difficult and contentious issue".
We recognise that it is a difficult and contentious issue. We have had no experience, except in the past number of years, of having large numbers of asylum seekers appear on our shores. They are new circumstances for us but that does not mean we cannot handle them, but the manner in which the Minister is handling them is neither fair nor reasonable. This amendment attempts to inject an element of reason in the way asylum seekers are currently treated by allowing them to apply for and be granted a work permit by the Minister for Enterprise, Trade and Employment only in the event of their being in the state for over three months. I put it to the Minister that this is a reasonable amendment which does not in any way undermine the intention of the Bill.
I support the amendment and join with the previous speakers in appealing to the Minister to accept it. It is a basic condition of a material and humanitarian nature, according to the UNHCR, the Council of Europe and other bodies which have studied in depth the problem of migration, refugees and asylum seekers, that they should be afforded, as far as possible, the right to work or to do something useful during the duration of the determination procedure. The duration of the determination procedure is extremely long. We talked about that issue at some length on Second Stage last week, although the Minister did not hear the points made as he was dealing with more important matters in Belfast.
What is the resistance to allowing people who have a skill that the economy needs the right to work? If these people have a skill and there is a job they can fill they should be allowed to work. The terms of the amendment are not unreasonable. It provides that a person must be in the country for three months before they will be considered for a work permit by the appropriate Minister. The Minister must take into account that we are not the only ones saying this. Distinguished bodies, two of which I have mentioned, have strongly recommended that asylum seekers and refugees should be allowed the right to work while waiting for the determination of their applications.
I apologise to the House for my inability to be here last week. I was at the Northern Ireland talks with the Taoiseach, the Minister for Foreign Affairs and the Minister of State at the Department of Foreign Affairs. I thank the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Mary Wallace, for taking the Second Stage debate on my behalf.
The matter of the right of asylum seekers to work is under consideration by the Government and its decision will be announced in due course in the normal way. As has been stated here and in the Dáil by me and by others on my behalf, it is public knowledge that the question of whether asylum seekers should be granted permission to work is one which requires great consideration and there are a number of strong arguments which need to be teased out. All the factors which need to be taken into account are being considered in assessing whether the existing situation, in which asylum seekers are not allowed to work, should be changed. Senators will be aware that a spectrum of views exists in the Government on issues of this nature. We will conclude our deliberations on this important issue and observe collective Cabinet responsibility when it is decided upon, whichever way the decision goes.
In the meanwhile, I do not propose to agree to this amendment, which would pre-empt that decision. I would like the House to consider the international position. In some EU states no wel fare is provided, so asylum seekers must work to survive. In others, asylum seekers may work only after a certain period in the state, which can in effect mean no right to work, as the case is dealt with and any appeal disposed of before the period expires. Other countries adopt the approach that asylum seekers may work but only if the employer cannot find an EU national to fill the job. In circumstances of even moderate unemployment rates, this effectively rules out the right to work. Yet another approach permits asylum seekers to work only in community employment, which is in reality a form of earning their welfare.
I remind Senators that those who have applied for asylum in the State are seeking to remain here on the basis that they are in need of the protection of the State, not because they are available for work. The only relevant criteria then are those set out in section 2 of the Refugee Act, which deals with the definition of a refugee. With respect, it does not matter if the applicant is a brain surgeon, a philosopher, a petty thief or a road sweeper by trade. What matters is if the individual has a well founded fear of persecution. I have noted a confusion about illegal immigrants and refugees on one hand, as well as the issue of illegal immigrants having the right to work on the other, in the debate on this matter. Those granted the status of refugee in Ireland receive the protection of the State, therefore they have the right to work in the State. Nobody disputes that. What we are debating is whether people whose status has not been determined at all should have the right to work. As I have said, there are strong arguments to be considered in this respect.
I have heard it said in the course of several debates that because an individual who is an asylum seeker possesses certain skills, he or she should be allowed to work as of right because it would be of benefit to the economy. I do not believe this argument holds up under analysis. It effectively means the State should allow people to work on the basis of their capacity and disallow others the right to work who might have less capacity for same. I do not believe that is a just or fair way to proceed.
It has also been argued that people have had to wait years for their applications to be determined and that it is unfair to keep them on welfare for a long period. There is merit in that argument, but since coming into office I have set up a one stop shop for refugees, I have increased the number of people dealing with applications sevenfold, I have provided interpretative facilities, legal aid and a place for the Eastern Health Board to assist that one stop shop in whatever way it can. I have succeeded in reducing the waiting period for asylum seekers to its lowest level in the history of the State. When I began this I was accused of having a fast track procedure by the same people who had earlier accused me of causing lengthy delays. It is difficult to follow these circuitous arguments, but I am certain the facilities and administrative procedures in place for asylum seekers today in Ireland are far superior to anything that was in place before this Government came into office and are also far superior to those of most countries of which I am aware. That may seem strange to the critics, but it is the truth.
The truth has been a major casualty of the debate on immigration for some years. It has been a casualty at the hands of certain politicians and certain people in the media. I say that without fear or favour. A Senator said here last week that I had no understanding of the international migratory phenomenon taking place all over the world, that I did not like non-nationals or foreigners and that I revelled in the secrecy and lack of transparency in my Department.
Those are the words of a bigot, a person who does not understand what this is about, who has no notion of our international obligations and far less of an understanding of our domestic law. It does not surprise me, coming from the source from which it does, but the sheer bile and vitriol took me somewhat aback, which is difficult to do.
It has been argued that Irish emigrants went to America in the last century and that therefore Ireland should have an open door policy on immigration at the end of the 20th century. That is not comparing like with like. Many of those emigrants went to America and Australia as legal emigrants. They contributed enormously to the economies of the countries to which they went and we are justly proud of them. To compare a small island nation on the periphery of Europe with the United States of America, the world's economic engine, is not to compare like with like. To compare our small island with the land mass of Australia is nonsensical. These comparisons do not bear scrutiny.
I have been encouraged by various groups to institute an open-door immigration policy. I want to be as helpful as I can to my fellow human beings and in this matter, I have tried to ensure that human dignity is respected at all times. However, no democracy of which I am aware has an open-door policy on immigration.
Whether I am Minister or not, serious questions remain to be answered by Members of this House and Dáil Éireann, by the Government and by all with an interest in this subject. Is it in the interests of the process and the country that asylum seekers be allowed to work? Would such a policy amount to a pull factor for the thousands of asylum seekers in Europe and what significance would that pull factor have for the Irish economy? Would it be in the interests of the Irish people and the Irish labour force? Would wage rates for certain non-skilled jobs drop or would the reverse happen? I have no objection to foreigners coming to the country to work. I welcome them irrespective of their creed, colour or sexual orientation. Are we better served by allowing asylum seekers to work or by putting in place a national quota which would allow people from other countries to come to this country to work? I strongly favour the latter proposal. It is structured and would allow the Government to monitor the numbers coming into the country.
The vast majority of asylum seekers do not make their applications at Irish ports. Most applications are made inland and applicants very often say they have no papers and do not know how they got here or where they came from. My Department must process these applications and this is not an easy task. If people are found to be refugees they are granted refugee status. If their applications fail in the first instance they have a right to appeal and these appeals are heard independently. In the first instance the hearing is held independently also. Every possible facility is put in place to ensure that fairness is at the heart of the process. I would not have it any other way. At the end of the process a determination is made and an asylum seeker becomes an illegal immigrant or a refugee. If the person is judged to be an illegal immigrant he or she is asked to leave. If the person is judged to be a refugee he or she is given the protection of the State and is entitled to work.
For a long time we have had a common travel area arrangement with the Government of Great Britain. That arrangement allows Irish men and women to cross the Irish sea without having to produce passports. There are also no border controls between Ireland and the United Kingdom, including Northern Ireland. The granting of the right to work to people who apply for asylum would be a pull factor, although I do not know to what extent. What affect would this have on the common travel area? If the pull factor were significant people would have the right to move from here to Great Britain. Would such a development be detrimental to the existence of the common travel area? These questions must be considered.
Senator Connor seems to think that the United Nations High Commissioner for Refugees believes asylum seekers should have the right to work. It is my understanding that the High Commissioner feels that the widening of other avenues of legal immigration tends to reduce the number of asylum seekers. That does not accord with the view expressed by Senator Connor. Whatever about Senator Connor's misinterpretation of international conventions and domestic law and his vitriolic attacks on me in my absence, the problem remains.
It has been found in other countries where this problem existed that while the economy was healthy no difficulties occurred with regard to people of indeterminate status working. However, when the economy declined a severe problem arose which related to the availability of employment, the creation of racial tension and the evolution of hard right-wing parties with which I would have no truck. When we speak about the right to work, let us be clear what we mean and what the consequences of such a policy would be. Let us be clear about doing the right thing by asylum seekers but also doing the right thing by our own people. To do the right thing by our own people, in my view, is not to debate this as an exercise in name calling, which has unfortunately happened in this House and in certain sections of the Dublin print media. That is no way to conduct this debate and it is not in the broader interests of the Irish people. Let us conduct the debate rationally, looking fairly at the arguments, not victimising or personalising any one individual in what is a serious debate. It is important to be fair.
Speaking of fairness, I am always grossly offended by remarks which tend to lead the public to believe that officials working in the asylum section of the Department of Justice, Equality and Law Reform are less humane or fair than people working in other parts of the public or private sectors. Innuendo to that effect also spoken by Senator Connor should be withdrawn.
That is not true. The Minister should withdraw that. That is a disgraceful allegation to make.
On Second Stage he said that the Minister "revels in the secrecy and lack of transparency in the Department he leads."
It is his responsibility.
I suppose it is not the furniture about which Senator Connor is talking. Therefore, it must be the people.
I was talking about the Minister.
Senator Connor is only incidental to this. He is the legislative embodiment of the prejudice, rancour and misrepresentation which has surrounded this debate since it started in this country and finds its home only in some quarters.
I accept that the amendment is tabled with honourable intentions and not with a view to political one-upmanship or misleading the public, but I do not agree with it. It must be studied in great detail. It is an argument which clearly requires in-depth consideration, but those who blithely argue that the right to work should be granted just like that do not understand what all this is about.
The Minister has gone into considerable detail to give us his views on the issue of employment for asylum seekers, but I want to boil it down to the object of the amendment. The amendment is not about opening the floodgates. It is not about inviting hordes of people to this country. It is carefully worded. It is a modest proposal in that it relates to "any person who has applied for asylum". We are not talking about illegal immigrants or even economic immigrants in this case. I am happy to hear the Minister say that he is thinking about a national quota for non-nationals coming to work here. That would be an interesting area to explore.
This is a restrained amendment. It states merely that those who have applied for asylum and who have been in the State for at least months may apply for and be granted a work permit by the Minister for Enterprise, Trade and Employment. It is a modest proposal. It does not in any sense confuse the issue with regard to other matters.
The point I made about our own history, which I think was valid, is that there were times when there were no legal obstacles to Irish emigrants entering the US and other countries. Many of them availed of particular emigration programmes. As recently as the last decade, tens of thousands of Irish people emigrated on purely on economic grounds because the Irish economy was so bad for a long period. The Minister will know all about this because his colleague in north Kerry was extremely active in this regard. We know about the steps which were taken to influence the President of the United States, the Morrison visas, etc. I remember one occasion when a certain Senator hired a plane to take visa applications to the US. Let us not pretend that this is unprecedented. The largest number of applications Ireland has received is 4,000 whereas at least 30,000 Irish citizens emigrated every year and most of them did so illegally. That is the context of this amendment.
It is a carefully worded amendment. It allows people who have made applications which are satisfactorily founded and who have been in the State for three months to apply to be allowed to work in this jurisdiction.
The Minister said that he wants to do the right thing by asylum seekers but also to do the right thing by the Irish people and suggests, perhaps, that we were not doing so. I think we are doing the right thing by the Irish people. It is not right to allow an ethos to develop in this country where large numbers of asylum seekers are kept in certain urban areas. They attend Eastern Health Board clinics on a weekly basis to receive funding, they are accommodated in certain areas and they are seen by the population as not contributing in any way to the economic or social life of the country. Such circumstances create ghettos whether we like it or not. It creates tensions, antagonism and hostility. If these same people where allowed the dignity of the right to work, to fend for themselves and to be independent, surely that would be in the interests of the Irish people and would militate against any growth of racial tension. That is the other side of the argument.
We could argue the pros and cons of the proposal forever but it is a reasonable and desirable one. The business sector would welcome it and so would asylum seekers who have made applications.
Perhaps the Minister would refer to my other point about those asylum seekers who are now the parents of Irish-born children. Perhaps he would indicate whether or not he recognises that they have an automatic right to work here. Under the present procedure, the application process seems to endure interminably without that right being acknowledged. I urge the Minister to accept the amendment.
I do not intend to rise to the Minister's extraordinary outburst. It proves only one thing, that he is totally unsuitable both emotionally and temperamentally for the post which he holds. I stand by everything I said on the record last week. I stated that the Minister did not understand the phenomenon of migration which has taken place all over the world. He does not understand that approximately 200,000 Roma people are being persecuted in eastern Europe and are on the move towards western Europe. Neither does he understand the huge refugee phenomenon which exists in countries such as Turkey and Iraq. It is regrettable that the Minister is so ill informed.
I believe that, as a civilised people, there is an onus on us to take some responsibility for people who find themselves in such a plight. Obviously, the Minister does not share my view. That is a great pity. It is a great pity that a country which proclaims itself to be so civilised and modern in outlook has a Minister for Justice, Equality and Law Reform whose views are so benighted. I am sorry to use the term "benighted" but I use it advisedly.
I urge the Minister to look on this amendment in a more reasoned light. We merely state that the duration of the determination procedure is extraordinarily long. While the Minister boasts about the provisions he has put in place, most observers feel the system has broken down or simply is not working at all. Many immigrants possess skills. The right to work is an expression of any person's dignity. Thankfully, work is available nowadays in this country for these people. Many of them might work in unskilled posts and others have skills which they are willing to share for the duration of the determination procedure. That is all they ask. We have stated that people should be in the country for a minimum of at least three months before they could make such an application.
In recent years, the level of employment in this economy has increased and I find it offensive that we would not be willing to share – even for a short time – the fruits of our economic growth with people who are willing to work for it. That smacks to me of prejudice. People are merely seeking a just reward for something they want to do and should be allowed to do. I do not expect the Minister to display any great reason but I urge him to reconsider the amendment.
The Minister provided a very clear exposition of his view on this matter. I thank him for doing that, although I fundamentally dis agree with him. However, he is entitled to his views which are clearly outlined in this legislation. It is our role, as Opposition Members, to express different points of view and argue our case. We can do that in the course of the debate on this legislation without being bitter, personal or emotional.
The Minister referred to a national quota. There is great merit in that. This amendment would, to a great extent, give him a vehicle through which a national quota could be implemented. As Senator Costello pointed out, this amendment is not an attempt to open the flood gates or create an open-door policy. In many ways, the amendment is quite narrow. The amendment does not refer to a "right to work" to which the Minister has made constant reference. We are merely seeking that asylum seekers should have a right to be part of a community. We want them to feel welcome, even on a temporary basis. We do not want them to feel they should be shunted to one side and forced to live without the dignity of work.
The considerable majority of people who have come to this country have contributed considerably to their own economies and wish to do likewise here. We all want to be part of the communities in which we live; we want to have a role in the community, send our children to school there and not feel abandoned or turned away.
The people who have come to this country in relatively small numbers – although the Minister may disagree with me on that point – tell stories of the horrific experiences they have left behind them. It has not been easy for them to leave their communities and countries in those circumstances and seek asylum in a country, the location of which many of them were not even aware. Ireland is a small country on the periphery of Europe, not a huge state such as the US was when so many Irish people emigrated there to build its economy. However, Ireland has a booming economy with a labour shortage. Other democracies implement national quotas in a structured and relatively fair fashion. Many of us and our family members have gone abroad in that context.
I do not agree with the Minister about the pull factor. We cannot predict the future. As recently as four months ago, the Department of Finance could not have predicted its current budget surplus. Our current economic success was never expected to reach the levels it has. We cannot tell whether, in the future, people who come to this country will find themselves at the lower or higher end of an economic recession. We do not have any way of determining or predicting that at this stage.
I urge the Minister to look carefully at this reasonable, fair, structured and narrow amendment. We are appealing that he should afford asylum seekers the dignity of being part of a community, the opportunity to play a role in the communities in which they live and the possibility of making a contribution to them.
A very good friend of mine from Skibbereen who works in London has studied patterns of Irish emigration to London over a number of years. She has worked in small community museums, charting the life experience of legal Irish emigrants. Those people went to various cities in the UK and suffered quite extensive privations at one level while making a contribution to the British economy on the other. The experience which she has charted clearly reveals that it is not easy to be a foreigner abroad or to leave one's home and set up in a country of which, to a large extent, one will never be 100 per cent a part. To come to a country in which the language, culture, weather and people's skin colour are different and seek a small concession such as the opportunity or possibility to be part of a community must be all the more difficult. I am pulling back from using the word ‘right' in order to stress the reasonableness of our amendment to the Minister.
The expectation is that by the middle of next year at the latest I will have reached the situation whereby asylum applicants can expect to have their applications processed within a period of six months. By July of next year I anticipate that I will have dealt with the backlog. When I came into office two years ago there were thousands of applications and hardly any staff dealing with them. Applicants were in the country for years not knowing when their applications would be processed, if ever. There was chaos in the system which was in bits. I am not seeking credit for organising the system whereby we are dealing with the matter effectively, efficiently, fairly, openly and transparently but one has to appreciate that it is difficult for me to take criticism of the current procedures when one considers the way things were.
My oft stated policy on asylum seekers is simple. My aim is to ensure that those who are in need of the protection of this State are recognised as such as soon as possible so that they can avail of the rights to which they are entitled. It is a simple philosophy. Those who are found to be illegal immigrants after a determination by an appeals authority, if it should come to that, or at first instance if they do not appeal are asked to leave the country. That is a logical position to take and I am not unusual in that respect. I read that we have tough immigration laws. Our immigration laws are robust but there are countries which have far tougher immigration laws than this one.
Our immigration laws have been considered by the courts on several occasions against the backdrop of a welter of criticism. One of the oft quoted judgments or observations is that of Mr. Justice Gannon in the case of Osheku v. Ireland, I986 Irish Reports, page 733. Before I am accused of being pejorative, the use of the word “aliens” by the judge is a reference to the Aliens Act, 1935. The judgment reads:
The control of aliens . . . . . is an aspect of the common good related to the definition, recognition, and the protection of the bound aries of the State. That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure, and their activities and duration of stay within the State is and has been recognised universally and from the earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizens, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is of the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the Constitution.
Nothing sets out the rights and obligations of the State in regard to immigration law more succinctly than Mr. Justice Gannon's perceptive contribution.
The Bill has been characterised by Opposition spokespersons as a negative package of measures. It is difficult for me to believe that people would say this. By amending the Refugee Act, 1996, this legislation ensures I will be in a position to implement that Act in its entirety. This is another measure which has been called for by various NGOs and others over a protracted period. I would have thought that this would have been welcomed but I was wrong. I would have thought also that the Opposition parties would at least have been consistent. I would have thought that they would have taken the opportunity when in government a short time ago to allow for the right to work, if that is what they desire. My criticism is not so much that they did not provide for it when in office but that they provided for a prohibition on it in the Refugee Act, 1996, section 9(4) of which reads:
An applicant shall not–
(a) leave or attempt to leave the State without the consent of the Minister, or
(b) seek or enter employment or carry on any business, trade or profession during the period before the final determination of his or her application for a declaration.
The hypocrisy of the amendments, which were also tabled in the other House, is breathtaking. That is the only word I can use. The hypocrisy of those who when in government enacted a specific imperative that asylum seekers not be allowed to work and, a short few years later, have used the opportunity presented by the privilege of this Chamber, in Senator Connor's case, to assassinate my character is breathtaking—
—the likes of which I have not seen in this or the other House since I was first elected more than 12 years ago. I sincerely hope that I will never again see it.
Members should be protected from harangues and tirades of that kind.
It does not become the Minister to engage in harangues and tirades of that kind which are abusive to Members of the House.
The Senator should, please, allow the Minister to complete his reply without interruption.
The Cathaoirleach should protect Members of the House from that type of Nuremberg tirade.
Senator Connor last week in this House engaged in character assassination in my absence and I make no apology for defending myself.
I make no apology for anything I say.
Leaving aside the debate on the right to work, I make no apology for my obligation – I consider it such – to protect society from an economic and security perspective through our immigration laws.
Senator Costello raised the question of permission to parents of Irish children to remain. This is an important matter. My Department has received a considerable number of such applications. I have directed that they be processed as quickly as possible and a positive decision given, where possible. The parents of Irish children granted permission to remain can work without a work permit and set up a business without seeking permission. That point was eloquently raised by Senator Costello and I trust that my reply will be of benefit to him.
At least I have been consistent. In 1996, I appealed for the right to work for asylum seekers and I am now seeking it again. I hope the Minister will accept this modest amendment, even though he has most eloquently explained why he will not do so. It would be wrong of me not say it publicly, seeing that I write so frequently to the Department of Justice, Equality and Law Reform looking for help, in particular for medical practitioners and other professionals who, rather than being sustained by social welfare, are desperate to become involved in the health service, which could do with their help. In order to demonstrate my consistency and the fact that I have been interested in this area for many years, I hope the Minister will consider accepting the amendment, even at this late stage.
Is the amendment being pressed?
I will not pursue it any further, but I want to put one question.
Much latitude has been allowed to all Senators. At this stage all the points have been made. We will now get into repetition, but I will allow the Senator to contribute briefly.
As I said, I am not pursuing it any further. Can the Minister or his officials put something in writing concerning the applications of parents of children who were born in this country to work here? The process has caused some complications. If the Minister could provide some details on that matter I would appreciate it.
It is my intention to write to the individuals concerned in the coming weeks to let them know precisely what the situation is. I feel sure that the news the vast majority of them will receive will be positive.
Is the amendment being pressed?
I thank the Minister for his comments with which I agree very much, but the amendment is being pressed.
On a point of clarification, did the Minister say he would write to everybody who has been in correspondence with the Department of Justice, Equality and Law Reform?
Will he clarify what he said?
I made it clear that the people we are speaking about here are the parents of Irish-born children, which was the specific matter raised by Senator Costello.
Amendment put.
Tá
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Burke, Paddy.Caffrey, Ernie.Coghlan, Paul.Connor, John.Costello, Joe.
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Cregan, Denis (Dino).Henry, Mary.Jackman, Mary.Manning, Maurice.O'Meara, Kathleen.Ross, Shane.
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Níl
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Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Cregan, JohnDardis, John.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.
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Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Donovan, Denis.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.Walsh, Jim.
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Tellers: Tá, Senators Connor and Costello; Níl, Senators T. Fitzgerald and Quill.
Amendment declared lost.
Amendment No. 2 is on the substitute list which was circulated today. Amendments Nos. 3 and 55 are related and all may be discussed together. Is that agreed? Agreed.
I move amendment No. 2:
In page 3, before section 1, to insert the following new section:
1.–This Act, other than section 11, shall not apply to an unaccompanied non-national under the age of 18.".
These amendments omit reference to section 11. They are clear in their intention. They allow us to debate the application of procedures to children, especially unaccompanied non-nationals, which is obviously a major concern. I do not need to highlight the vulnerability of children in the context of asylum. Photographs and television footage from Kosovo can still be seen and it is not unusual to see large numbers of children orphaned at a young age and left extremely vulnerable. The likelihood of such children seeking asylum in Ireland may be limited in many ways, but it should not be ruled out, especially in principle.
Following the Second World War, friends, neighbours, relatives and supporters of refugees tried to get unaccompanied children to a safe place and it is in that context that these amendments have been tabled. This Bill should not apply to unaccompanied non-nationals under the age of 18 and it should be accepted that such minors are automatically entitled to every support and protection that can be provided, thus acknowledging their vulnerability, the difficulties they face and our responsibility to them as children first and foremost.
Unaccompanied minors are arriving in Ireland more frequently, particularly those coming from countries where there have been civil wars; I recently met a minor from Rwanda. The Minister could extend himself to accept these amendments because while asylum seekers have a difficult time, children are especially vulnerable. The casualties of war increasingly are civilians and not armed forces as was the case in the recent conflict in Kosovo. Given that many of these children will have gone through the trauma of losing the adult members of their families, I hope they will be excluded from the application of this Bill if they find their way to Ireland.
I support the amendment and hope that I do not draw another fulmination from the Minister. The unaccompanied children issue is serious and the Minister is not au fait with international migration movements. However, of the tens of thousands of Roma people on the move in south-eastern Europe towards western Europe, it is estimated that at least 7 per cent are unaccompanied minors or children. It is possible that a number of unaccompanied Roma children will come to Ireland given that a number of Roma people rightly sought asylum here. Very often they fled persecution in countries in south-eastern Europe where there always has been a tradition of prejudice against them, which in turn found its way into domestic law in those countries. This legislation should not apply to them.
Children are a special category of people, especially those who are poor and forced to flee their homes. Many were orphaned and just happened to follow people from their own ethnic group, who gave them shelter while they were on the move. What procedures are in place to deal with unaccompanied minors who seek asylum? Is an appropriate individual – qualified in regard to the law governing minors – available to ensure that proper procedures are adopted when processing their applications?
This is not an attack on any of the staff in the Department of Justice, Equality and Law Reform, but it is up to the Minister to ensure that such personnel are provided as part of the basic service available to unaccompanied minors. Given that it is possible that such children could turn up on our shores from among the Roma people, the Kurds in Turkey or Iraq and Sierra Leone, it is surely not too much to make a basic humanitarian request that the Minister exclude them from this legislation.
The protection for unaccompanied non-national minors is already set out in statute. It has not yet been implemented in its entirety, but section 8(5) of the Refugee Act, 1996, addresses the issue of minors and it provides that where it appears to an immigration officer that a child under the age of 18, who has arrived at the frontiers of the State, is not in the custody of any person, the officer shall, as soon as practicable, so inform the health board in which functional area the place of arrival is situated and, thereupon, the provisions of the Child Care Act, 1991, shall apply to the child.
While this provision is not yet operational, administratively the manner in which the processing of children's applications is conducted is based on the philosophy expounded by section 8(5). We are, of course, very conscious of the vulnerability of unaccompanied minors and, therefore, all the necessary steps are taken to protect and provide for the welfare of the children concerned. I have ensured that administrative practice follows very closely upon that set out in the Refugee Act, 1996, and it is my intention to implement the Act in its entirety following the passage of this legislation, which will introduce necessary amendments following further consideration of related matters. I am satisfied that very shortly the Act will be implemented in its entirely. I implemented that part of the Act which relates to the Dublin Convention a number of months after taking up office. The Act never became operational under the rainbow coalition Government.
In regard to the issue of further amendment to the Refugee Act, 1996, section 11 of this Bill contains a provision to deal with unaccompanied non-national children who are already in the State when they come to notice. This, as I already indicated in regard to other applicants, is the more usual way in which such children have emerged in practice. Pending the enactment of the main provisions of the Refugee Act, 1996, the procedure set out in section 8(5) is operated in practice on an administrative basis.
The usual circumstances in which such children come to our notice are where they present themselves at the Refugee Application Centre in Lower Mount Street, Dublin. This is the one-stop shop for asylum seekers which I established and to which I referred earlier. It also houses an Eastern Health Board centre and any such child is immediately brought across the lobby to that centre. The phenomenon of unaccompanied children is small but growing. It did not feature prior to 1996. It may interest Senators to know that since the beginning of 1996, 33 unaccompanied minors have applied for asylum, all but five of whom came to notice at the Refugee Application Centre or, before it opened its doors, at the head office of my Department.
I understand and appreciate the sentiment which underlies the amendment. However, I do not accept the logic underlying the amendment to the extent that it assumes there are "never ever" circumstances where a person who has been refused asylum or who has not applied for asylum should not be returned either to their country of origin or the country where his or her parents, guardians or other relatives live. Any decision taken to remove a child from the State must be taken extremely carefully and all relevant factors must be taken into account, including the position at the other end. The list of factors set out in section 3(6) seeks to achieve this. These factors include at paragraph (a) the age of the person and at paragraph (h) humanitarian considerations. Paragraph (c) covers domestic and family circumstances. These provisions secure the interests of the child in each case.
The decision in any one case should not be dictated by an assumption that merely because the economic climate in the country of return is not as healthy as that of the western world, the return should not take place. Social workers dealing with the question of inter-country adoptions are at pains to decry this west-centred assumption which seeks to justify the flow of children from developing to developed countries without regard to cultural, social and other equally important factors in the upbringing of a child. This should not be over-ridden by economic considerations. In this context, it is noteworthy that the Hague Convention on Inter-country Adoptions, the ratification of which my colleague, the Minister for Health and Children, Deputy Cowen, is working on, is based, among other things, on the premise that inter-country adoption represents a subsidiary means of child care to be resorted to only where a child cannot be cared for in a family in his or her country. My understanding is that the introduction of the words "other than section 11" to these two amendments brought about by substitute amendments Nos. 2 and 3 are, in fact, of no material effect. The amendments are equally unacceptable with or without the additional words.
I will give a number of examples why the broad sweep of the amendments is unacceptable. The first relates to an individual who is convicted of drug smuggling. By virtue of these amendments, if the individual was, say, 17 years of age, it would not be possible to deport him or her. There are other examples which Members can envisage, such as a child sent from Cherbourg to this country to see how matters develop. In these circumstances it must be envisaged that the health board might feel that the child's interests would be best served by family reunification. I assure the House that there is no question of any bias being exercised against a minor in this respect. We are anxious to ensure that the child is protected in so far as possible. This is how we are proceeding administratively at present and will proceed by legislative effect when the Refugee Act, 1996 comes into effect. The amendments as phrased are impractical because of the problems which would ensue.
I acknowledge the Minister's remarks in relation to the administrative practices in his Department and the fact that the whole issue of unaccompanied non-national minors has arisen only in the relatively recent past, as has the entire issue of asylum seekers. This has arisen only since our economic success in this decade. I take on board the Minister's comments regarding the amendments, but I ask him to appreciate that the amendments were tabled in good faith and with the intention of achieving a particular result. I will be watching with interest the Minister's implementation, following consultations, of the Refugee Act, 1996 in its entirety and the sections relating to children. What timescale has the Minister in mind?
I know the Minister is very concerned and that he and his officials take the issue very seriously. On a cheerful note, in the only case in which I was involved with a minor, everything humanly possible was done for the child, who was a teenager, including finding interpreters and trying to trace an adult member of the family in a third country. I do not know how the case proceeded because my involvement was peripheral. I compliment the Minister, the officials involved and the Eastern Health Board on the huge effort made in the case. I hope the same effort is being made in all cases. I understand from the Minister's reply that he is very concerned about this issue because, unfortunately, 33 children in less than three years is a large number. These children probably come from countries to which they cannot be returned. The boy in the case with which I was involved could not be sent back where he came from. These are very difficult cases and I was pleased to find that this case was being pursued with such diligence and care.
I thank Senator Henry for her kind remarks. To illustrate how these cases are dealt with, the 33 children who arrived in this country since 1996 are still here and are being very well looked after. Obviously it is the intention to continue to do so.
Senator O'Meara asked when the legislation in its entirety will be brought into effect. It is my intention to have all of the Refugee Act, 1996 fully operational by the end of this year. This will be welcomed by non-governmental organisations and all political parties. However, I could not implement the Act without the amendments tabled now because sections of the Refugee Act, 1996 were more appropriate to a different scale of asylum seekers than has proved to be the case.
Amendment put and declared lost.
I move amendment No. 3:
In page 3, before section 1, to insert the following new section:
1.–This Act, other than section 11, shall not apply to an accompanied non-national under the age of 18 unless the application of the Act to that person would be in the child's best interest.".
Amendment put and declared lost.
SECTION 1.
Amendments Nos. 4, 20, 21 and 24 are related and may be discussed together by agreement.
I move amendment No. 4:
In page 3, subsection (1), between lines 17 and 18, to insert the following definition:–
"refugee" in this Act or the Refugee Act, 1996 shall include any person entitled to protection under international law against expulsion, return or refusal of entry".
Amendments Nos. 4, 20, 21 and 24 refer in general terms to our responsibilities under international law. They are an attempt to insert into the Bill references to our responsibilities under international covenants, agreements and law because the Bill does not refer to them. Reading the amendments one can see what we are trying to achieve.
Amendment No. 20 proposes the insertion of a new subsection requiring that:
the Minister shall not make a deportation order in relation to a person who is a lawful resident if the effect of so doing would contravene or carries a substantial risk of contravening Article 13 of the International Covenant on Civil and Political Rights.
Similarly, amendment No. 21 refers to Article 33 of the UN Convention relating to the Status of Refugees, Article 3 of the European Convention on Human Rights and Article 2 of the Dublin Convention which relates to international treatment of refugees.
Our responsibilities to refugees must be taken in the context of our position and responsibilities in the context of international law. We are not a stand alone State, nor have we ever attempted to be. Our participation in the European Union and our commitment as members of the United Nations is unquestioned. In that context it seems unusual – and I am being very mild – that this Bill, setting up our set of rules and relationships for non-nationals, should have no reference to our responsibilities under international law. These amendments seek to rectify this position.
I support Senator Kathleen O'Meara on this. I tabled several amendments which were disallowed. Senator O'Meara mentioned some of our obligations under international agreements in relation to refugees and asylum seekers. I remind the House, as I did on Second Stage, that the European Convention on Human Rights must be applied to refugees and asylum seekers. In particular, four articles apply. I wonder how good this country has been in observing those articles.
I will refer to them again for the benefit of the House and the Minister, if he bothers to listen. Article 3 is a prohibition on torture and inhuman and degrading treatment and punishment. Article 5 refers to deprivation of liberty. Article 8 refers to respect for private and family life. I am sure we have often offended that in relation to refugees and asylum seekers. Article 13 refers to effective remedy. I am sure we have often been found in breach of that article.
I welcome the initiative of Senator O'Meara and her colleagues in introducing this amendment to record in the Act our obligations under international agreements in relation to the treatment of asylum seekers and refugees.
These amendments are opposed. The expression "refugee" is nowhere used in a substantive way in the Bill, so to that extent amendment No. 4 is without meaning. The term "refugee" is internationally recognised as having the meaning ascribed to it by the 1951 Geneva Convention relating to the Status of Refugees and its related 1967 New York Protocol.
The guardian of these instruments is the United Nations High Commissioner for Refugees. The High Commissioner is concerned to ensure that the term is not used loosely to encompass a wider range of persons than those defined in the convention. For instance, persons who have been driven from their homes but who are still within the country of habitual residence are described by the UNHCR not as "refugees" but as "internally displaced persons". This concern was expressed by the UNHCR in the context of the Bill for the Refugee Act, 1996. Section 2 of that Act defines the term "refugee" in Irish law. It is based on the convention definition, but incorporates a number of important clarifications. These are in regard to sex, sexual orientation and membership of a trade union and are brought about by way of the definition of the expression "membership of a particular social group" in section 1 of that Act. Those clarifications, which form part of Irish law, were the subject of comment by the UNHCR at the time, expressing concern that they went beyond the convention definition.
Whatever about those important and desirable, but in legal terms minor, clarifications, the Senator's proposal would extend the use of the term "refugee" in an indeterminate and potentially wide way, and indeed contains the potential for circularity. Thus a person clearly not a refugee because excluded from that status for, say, war crimes, could nonetheless be deemed a "refugee" within the Senator's definition because returning that person to a particular place could be a refoulement.Nor does the Senator's definition allow for the fact that while the prohibition of refoulement might bar the return of a person to a particular territory, thus coming within the Senator's definition, it would not restrict that person's expulsion to, say, the Hague to face a properly constituted international tribunal. The Senator's definition would actually prevent this, though I doubt this would be her intention.
The most glaring defect in the Senator's amendment is that it renders utterly superfluous the entire Refugee Act by effectively defining as a refugee any asylum applicant who comes to our shores. No person who seeks asylum can be refused entry to the State. Sections 8 and 9 of the Refugee Act, 1996 are crystal clear on that, and so are the Hope Hanlan procedures which are in place pending the coming into effect of those sections. These provisions are the implementation of our well-understood obligations under international law as parties to the 1951 Convention. Thus an asylum-seeker comes within the Senator's definition of a "refugee" as a person protected against refusal of entry.
I have considerable sympathy with the sentiment which underlies this amendment. I accept we need to examine more closely how we can reflect in Irish law the international obligations which the Senator has in mind. In this context I am examining with great interest the paper prepared for Amnesty International by Dr. Colin Harvey of Queen's University Belfast, among other work on this issue. The paper was presented recently to the Select Committee on Justice, Equality and Women's Rights.
I can see there is potential for having a provision in Irish law which sets out who are protected persons and what are their rights, by analogy with the Refugee Act provisions which define refugees and set out their rights. In my view, the proper context for that debate is the wider review of the Refugee Act and the consultative process which I have already initiated, based on a comparative study commissioned from UCD which I hope will be available to me shortly in final form. It would be most appropriate that the Refugee Advisory Board would be part of that consultative process.
Amendments Nos. 20, 21 and 24 are also opposed. They seek to introduce provisions which would in effect make a number of international instruments part of Irish domestic law. These international instruments are for the most part instruments to which the State is a party. The State complies with its obligations under instruments to which it is a party by reason of the fact either that its laws are consistent with such instruments or that the State operates domestic law or otherwise acts in a manner consistent with those obligations. The instruments themselves are, however, not part of Irish law.
In the case of instruments which it is intended to ratify, it can be necessary to legislate before ratification in order that the State's domestic laws will be fully compliant with the instrument in question. The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treat ment or Punishment, to which reference is made in amendment No. 24, is a case in point. The legislation necessary to enable Ireland ratify that instrument is currently awaiting Report Stage in this House.
The principles enshrined in those instruments to which the State is party are matters which any Minister for Justice, Equality and Law Reform would have regard to in determining whether to make a deportation order. Those matters are already encompassed by the comprehensive list of factors in paragraphs (a) to (k) of subsection (6) and particularly paragraph (h) which relates to humanitarian considerations. That list is sufficiently flexible to encompass the current range of our international obligations, as well as to cover obligations which the State may assume under any future such instruments to which it may become a party, without the necessity for the ratification of such a future instrument to require that the list be amended by Act of the Oireachtas.
Amendment No. 21 refers specifically to Article 33 of the 1951 Geneva Convention which relates to the status of refugees. This reference affords a good illustration of the relationship between domestic law and our international obligations. The article deals with non-refoulement. Our international obligations arising from that article are implemented not by adopting the article as part of domestic law; the approach instead has been to enact section 5 of the Refugee Act, 1996. There are undoubted similarities between Article 33 and section 5, but the differences are more significant in the context of the amendments. Article 33 confines itself to refugees; section 5 applies to any expulsion or return, regardless of whether the person is a refugee.
Article 33 contains an exception clause permitting refoulement for a refugee who may be a danger to the security of the country in which he or she is or, having been convicted of serious crime, is a danger to the community of that country. Domestic law provision contains no such exclusion clause. It is accordingly proper to state that Irish law gives effect to the international obligation in question rather than that the international obligation is incorporated into Irish law.
This is the technique whereby Ireland honours its international obligations generally in this sphere. To the extent that the amendments refer to instruments to which Ireland is already a party, they are unnecessary because the provisions of the Bill are consistent with those obligations. To the extent that they refer to instruments to which we are not a party, they are premature since the process of ratification in each case will establish to what extent our laws are consistent with the instrument in each case and to what extent legislation is needed. That process is, as I indicated, taking place already in relation to the Convention against Torture.
In the context of the development of the comprehensive legislative proposals for the replacement of the Aliens Act, 1935, with a modern code of immigration and residence law, I am prepared to examine the questions raised by the amendments with a view to seeing what provisions, if any, might be made to reflect our already well known and deep commitment to the cause of human rights internationally and nationally.
In my opening remarks, I paid tribute to and thanked the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Mary Wallace, for dealing with this legislation in the House last week. I should have referred to the Minister of State at the Department of the Environment and Local Government, Deputy Dan Wallace, who ably dealt with the legislation. I wish to extend my thanks to him and to correct the record of the House.
The Minister referred to the submission by Dr. Colin Harvey. I presume he meant the paper, Mainstreaming Human Rights and Fairness in the Refugee Protection Process: A Principled Approach to Refugee Protection for the Twenty-First Century, by Dr. Harvey of Queen's University, Belfast. Under the heading of suggested amendments to the immigration and refugee Bills, he states that the Immigration Bill does not refer to the international instruments which are identified in the amendments. Dr. Harvey points out that problems arise from the failure in the Bill to refer to the instruments.
The Minister referred to the UN Convention against Torture Bill. My advice is that it is only a partial answer to the problems which arise. I am also advised that the failure to expressly comply with the UN Convention on the Status of Refugees, Article 3 of the European Convention on Human Rights and Article 2 of the Dublin Convention, may mean that in due course the Bill will be held to be in contravention of international law. The Minister set out in a reasoned, erudite and cogent fashion why that is not the case. However, I disagree with him and I intend to press the amendments.
Amendment put and declared lost.
Section 1 agreed to.
SECTION 2.
Acting Chairman
Amendments Nos. 5 and 68 are related and may be discussed together.
I move amendment No. 5:
In page 3, subsection (2), line 31, after "made", to insert "prior to the 3rd day of February, 1999 and".
Section 2 refers to orders made before the passing of this legislation under section 5 of the Aliens Act, 1935. This is a difficult section which we oppose in its entirety. The amendment seeks to insert the words "prior to the 3rd day of February, 1999" to ensure orders made after the presentation of the Bill are not confirmed. It is a basic statement that orders made after the presentation of the Bill should not be confirmed and should be revoked under the Bill if necessary.
I have studied the Aliens Act, 1935, which was part of emergency legislation enacted in a pre-war situation. In the view of many people, the introduction of this Bill is partly a response to its challenge in the courts. The Aliens Act, 1935, was passed in a very different era and is entirely inappropriate for current times. The purpose of the amendment is to ensure an injustice is not carried out and I am interested in the Minister's response to it. The amendment is valuable and important.
The effect of these amendments would be to remove the Aliens (Amendment) (No. 2) Order, 1999, from the provisions of section 2 of the Bill which provides that every order made prior to the passing of the Act will, with the exception of those orders specified in the Schedule to the Act, have statutory effect.
The provision in section 2 is a precautionary measure taken in the wake of the High Court judgment in the Laurentiu case which was subsequently upheld in the Supreme Court. The purpose of the measure is to offset any possibility that the finding of the court could, in another case, be extended by analogy to powers of the Minister under the Aliens Act to make orders relating to other aspects of immigration and residence of non-nationals. This would have very serious and immediate consequences for the State in the operation of controls at ports of entry and within the State. The Attorney General has advised that such a provision is prudent and appropriate.
A successful challenge along the lines of Laurentiu could effectively end all entry controls to the State. In terms of public policy and national security, this is an occurrence which any Government would be reckless not to guard against. For instance, had such a situation arisen at the time of the proposed Ireland-Yugoslavia football game recently, the State would have been powerless to prevent the arrival of the Yugoslav team to fulfil that fixture. An important executive function of the State, used on that occasion to take a principled stand on an issue of international significance, would no longer be available. On a wider scale, the absence of any controls would expose our community to the prospect of the most undesirable persons passing unhindered into the State.
It would also spell the end of the common travel area arrangements which have been an important feature of relations between the State and its nearest neighbour for many years. The duty to protect those arrangements in the interest of the common good of the people has been recognised by the courts and is of such significance that Ireland, in the context of the Amsterdam Treaty, negotiated a special protocol to ensure those arrangements could continue.
I have pointed out that this is an interim measure. As already announced, I have in the course of development a set of legislative proposals for a comprehensive code of immigration and residence law, the aim of which is to replace the Aliens Act, 1935, with a modern law which I hope will exclude reference to aliens and which will provide a framework for the development and implementation of fair and sensible immigration policies better suited to the needs of the State and the individuals who may be affected by its operation. Publication is expected early next year.
I think it is safe to say that, while it is all we have at the moment, the Aliens Act is not in this day and age a particularly satisfactory basis for a modern immigration and residence policy. As I indicated on Second Stage, I want a legislative framework which facilitates the implementation of sensible and fair-minded policies in this area where all concerned know what to expect from the law and what the law expects from them. I repeat that I want to have fair and sensible principles enshrined in Irish immigration law. If I were "a trendy" without responsibility, I would be in a position to write some of the articles currently being written in some Dublin publications on this issue. However, I have responsibilities, namely, to be fair and sensible and to protect the interests of the Irish people. My aim is to put in place a comprehensive code of immigration law which pays clear and obvious respect both to the protections which society require and to the human rights of the individuals whose lives are touched by the law. The Bill is a first, interim step on that road.
Subsection (1) gives all aliens orders, except those listed in the Schedule to the Bill, made before the passing of this legislation the force of law as if the orders had been enacted by an Act of the Oireachtas. The exceptions include, of course, article 13 of the 1946 order, the provision impugned by the High Court in the Laurentiu case. To have included that in the compass of this provision would have been inappropriate.
The other aliens order excluded from the scope of subsection (1) and thus not given the force of an Act of the Oireachtas is the Aliens (Visas) Order, 1999, which I made on 3 February last. The reason for this exception is to allow for flexibility to make further orders under the 1935 Act making changes from time to time to the lists of countries whose nationals do not require visas and whose nationals are required to have transit visas. This power to make amending orders will not exist in relation to the aliens orders which are given the effect of an Act of the Oireachtas by subsection (1). I regard that subsection as, in effect, fixing the Aliens Order, 1946, and its amending orders in their present form until a new legislative base for immigration law is put in place.
It is desirable that the Minister should retain the power to decide by order who should require a visa to enter the State. A visa requirement is brought in usually in circumstances designed to curb the flow of illegal immigrants or such potential flows. It can be done quickly and effectively by the making of an order as is the case at present. In addition, to ensure the protection of the common travel area with the UK and conformity with our EU partners in relation to the common visa list, it is necessary to be able to have an expeditious procedure for doing this. Any additions or deletions to the visa list are of course carried out in consultation with the Minister for Foreign Affairs.
In the meantime it is vital that the immigration controls of the State be protected. There seems to be an air of unreality among certain people – I am not saying it is true of people in the House – in regard to deportation orders and immigration law. Immigration controls are necessary and every country has them. It might be fashionable, or in some quarters popular, to be on the other side of the fence. However, whether it is fashionable or popular, I am certain it is not right.
To include the Aliens (No. 2) Order, 1999, in the Schedule, as amendment No. 68 proposes, would completely undermine the protection proposed in section 2 because that order restates with some minor amendments the provisions dealing with entry controls.
The Minister is correct when he says no country is without immigration law, but most countries also have immigration policy.
Law should surely be based on policy. The Minister referred to the Laurentiu case of January 1999 in the context of the Aliens Act. The basis on which the Supreme Court ruled was that section 5(1)(e) of the Act, which authorised the Minister for Justice, Equality and Law Reform by order to make provision for the deportation and exclusion of aliens, either individually or by reference to membership of a particular class, contained no statement of principle or policy by the Oireachtas to govern the Minister's power. Effectively, as Deputy Howlin said in the Dáil, the Minister was empowered to make it up as he went along. This may have been acceptable in 1935 when circumstances were different, but one would have imagined an opportunity would have been made available between 1935 and 1999 to discuss the policy on deportation and exclusion of aliens, immigration etc. It is unfortunate that the same mindset appears to be still abroad and is very much contained in section 2 of the Bill, which will be opposed.
I am afraid Senator O'Meara did not listen to a word I said.
That is not true. I was listening and taking notes.
I cannot prevent Senator O'Meara from not listening to what I have to say. The Senator says she took notes, but in that case my ears are deceiving me. I set out the position as clearly as I possibly could, yet Senator O'Meara gave an entirely different interpretation of events. Policy in regard to immigration is implemented through legislation. In the longer term policy cannot be implemented without anchoring it to legislation. To decry saying that every country has immigration laws and controls seems fallacious.
How would the Minister describe the policy?
To argue that immigration law can exist without policy is to stand logic on its head.
Will the Minister describe the policy?
The Laurentiu case was obviously one which was determined by the courts in accordance with how the court saw the matter. The court decided that I should set out policy in clear terms in legislation. I accept that judgment – I had no choice in the matter in any event, but I was pleased to be able to set out the procedures. Surely that judgment confirmed that policy has to be set out in legislation. Was this not the kernel of the case? In the long-term it is not possible to have immigration policy without setting it out in legislation, a view affirmed by the court.
The argument that I make up immigration policy as I go along does no service to the people who put forward such a silly proposition. Immigration law and policy have been in existence for a very long time. Senator O'Meara's party was in Government more often than any other over the past 20 years and if she did not agree with that policy it is fair to ask why her party did not choose to change the law.
Leaflets setting out the policy are available and have been distributed. As I have outlined, the issue of immigration law and policy is to be addressed in a new Bill which will, for the first time, examine our immigration legislation in the round. It will address deficiencies as well as the current situation and will be most comprehensive. That is what is intended and what will be delivered in as much as we are delivering on a commitment to introduce the Refugee Act, 1996, in its entirety. We will also introduce a modern statute to deal with immigration policy in general. In the interim, this legislation is clearly designed to implement and acknowledge the decision of the court in the Laurentiu case. I could not have been expected to do otherwise.
I have heard arguments to the effect that this is a deportation Bill. I have explained a thousand times that it is not. I have explained that there are amendments amending the Refugee Act, 1996, and that there are policy matters set out in this legislation which are of considerable importance, but each time I say that it falls on deaf ears.
Obviously I cannot convince any person against his will. I have always said that a man convinced against his will is of the same opinion still. While deportation is not a pleasant option and is not something any minister for justice or home affairs in any country likes to exercise, it is something which, by way of enforcement, must be available to each such minister. If it were not, it must be clear to everybody that the ultimate power of enforcement of the immigration laws we are speaking about would not exist. That is not a very palatable reality and it might not be something which those from the Opposition parties like to own up to, but it is something which existed when they were in Government. It was not amended by them. Let us be clear about this matter. One cannot operate immigration laws without a sanction. It cannot be done.
Amendment put and declared lost.
Question put: "That section 2 stand part of the Bill."
Tá
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Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Cox, Margaret.Cregan, JohnDardis, John.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.
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Kett, Tony.Kiely, Daniel.Kiely, Rory.Leonard, Ann.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.Walsh, Jim.
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Níl
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Burke, Paddy.Caffrey, Ernie.Coghlan, Paul.Connor, John.Cregan, Denis (Dino).Henry, Mary.Jackman, Mary.O'Meara, Kathleen.
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Tellers: Tá, Senators T. Fitzgerald and Quill; Níl, Senators Connor and O'Meara.
Question declared carried.
SECTION 3.
I move amendment No. 6:
In page 4, subsection (1), line 10, to delete "and to remain thereafter out of the State" and substitute "for such a period as may be specified in the order and without prejudice to the right to re-apply for permission to re-enter the State".
This amendment refers to deportation orders. The section states that the deportation order requires "any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State." We believe this prejudices the right of a person to apply for re-entry to the State at a later stage. We wish to amend it to read: "for such a period as may be specified in the order and without prejudice to the right to re-apply for permission to re-enter the State."
We believe that nobody should be barred, in Old Testament terms, "thereafter" and I am surprised the Minister did not add in "and for ever more". A person should have the ordinary right in natural law to apply for re-entry and it would not impair the Bill if the amendment were accepted.
I support Senator Connor's amendment. The Minister does not need to insert "for ever more". That is clearly the reading of the present wording.
The amendment is opposed. A deportation order is not a temporary removal from the State with the option to return whenever a person so wishes. That would be to defeat the purpose of the order. A person is deported from the State on the basis that his presence here is invalid or undesirable. The intention clearly is that the person so deported should remain outside the State. The order must in each case, therefore, state that the person is to go away and stay away. If it said simply "leave the State", there would be nothing to stop an immediate re-entry. Furthermore, an order made in respect of a person already outside the State would make no sense unless it included the requirement to remain outside the State.
Section 3(11) provides that an order may be amended or revoked. It is open to a person who has been deported to apply from abroad to seek to have it amended or revoked, in the context of a visa application if the person is subject under our law to a visa requirement. Any such person would have his or her case re-examined and the order lifted in circumstances where it was so merited. In this sense, therefore, an order is not necessarily permanent although deportation orders are not lightly made and rarely revoked, to my recollection. There have been two cases in the past 18 months or so where I permitted persons who were the subject of deportation orders to be readmitted, in both instances because circumstances had changed.
A person who is the subject of a deportation order and who is removed from the State on foot of that order but who subsequently returns to the State, by whatever means, and applies for asylum, cannot be prevented from making such an application and will have it dealt with to a proper conclusion. This is the position under our existing asylum determination procedures and will remain the position when the Refugee Act, 1996, becomes fully operational later this year. The words "thereafter remain out of the State" are the same as those used by my predecessors.
I am very dissatisfied with the Minister's response. The making of such a final judgment on a person being deported from the State must prejudice his right to apply for re-entry. What if the deportation order were found to have been wrongly based? It cannot be fair to impose such a final sentence on someone who, for good reason, had attempted to enter the State but was found to be in breach of our immigration law. The draconian wording in the Bill and lack of sympathy for someone who may be in very deep trouble is characteristic of the Minister. A person's right should not be prejudiced by the laws of any land. That is what the Bill does. I appeal to the Minister to accept the amendment.
Senator Connor is entirely incorrect. Any individual who has been the subject of a deportation order may subsequently apply for asylum—
The Minister knows what the result would be.
—and the State must process that application. It is accepted that circumstances may change. I am appalled to hear Senator Connor continue to use such intemperate language throughout this debate. Since I have given my views I will not prolong the discussion further.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 7 and 11 to 14, inclusive, are related and may be discussed together, by agreement.
I move amendment No. 7:
In page 4, subsection (2), line 11, after "of" to insert "any of the following persons, provided that such person has not applied for asylum having had a reasonable opportunity to do so, or having applied for asylum, such application has been refused or transferred under the Dublin Convention, and if an appeal therefrom or proceedings in connection therewith are taken, such appeal is refused or such proceedings have concluded, as the case may be,".
This amendment refers to section 3 which deals with deportation orders. This is one of the most important sections of the Bill. Opposition Senators have tabled several amendments to this section as a result of our unhappiness with aspects of it. I hope the Minister will listen to our proposals and that we can discuss them in a reasonable fashion. The amendment would ensure that no one is deported until his or her asylum claim has been processed. I expect the Minister to say that the Bill provides for this, but it is necessary to spell it out in the Bill. That is the purpose of the amendment.
I support what Senator O'Meara has said. I have tabled several amendments to this section. Amendment No. 11 seeks to insert the words, "having been determined under the appeals procedure set down in the Dublin Convention (Implementation) Order, 1997. Amendment No. 12 seeks to insert after "asylum" in section 3(2)(f) "having been properly considered" and amendment No. 14 seeks to insert after "refused" in section 3(2)(g) "and who is not seeking asylum". We merely wish to improve the section which places enormous powers in the hands of the Minister. We seek to protect the human and civil rights of people who are seeking asylum and ensure that proper procedures are applied at all times.
Amendments Nos. 7, 11, 12, 13 and 14 are opposed. Amendment No. 7, to the extent that it lists classes of persons already set out at paragraphs (e) and (f) of subsection (2) is superfluous. To the extent that it seeks to set out here the requirement that an asylum seeker cannot be deported until all appeal processes, if invoked, have been exhausted, it is equally superfluous since that is already a requirement of both the substantive asylum procedures set out in the Refugee Act and the Dublin Convention process set out in the Dublin Convention (Implementation) Order made under the Refugee Act. Senator Connor's amendments Nos. 11 and 12 are likewise superfluous.
The obligation to consider an asylum claim made by any person within the State is already fully catered for in statute by section 8(1)(c) and section 9 of the Refugee Act, 1996, and, pending the Act's coming into operation, by the Hope Hanian procedures, copies of which are available in the Oireachtas Library and are made available to every asylum applicant in a choice of 15 languages. Thus the making of an asylum application in effect suspends the deportation process until the application is finalised by either grant or refusal of refugee status, transfer under the Dublin Convention to another EU state or abandonment or withdrawal of the claim. It is patently not in the common good for the State to breach its international obligations by denying someone the right to seek asylum.
This amendment also appears to miss the point that subsection (2) merely sets out a list of classes of people who are liable to be deported and does not create a requirement that any or every person who falls into such a class should or must be deported.
The use in amendment No. 7 of the expression "having had a reasonable opportunity [to apply for asylum]", and more particularly Senator Connor's amendment No. 14, imply a requirement that the Minister should explicitly ascertain the wishes of each potential deportee; in other words, to ask such a person, "Would you like to apply for asylum?". That, in my view, is utterly unacceptable. It is open to each person who feels that he or she has a well-founded fear of persecution to volunteer that information, and there is already ample opportunity for a person to do so. There cannot be an onus on any State to invite asylum applications, which is the implication of this amendment, irrespective of who the people are. Clearly this would be beyond the State's duties.
Amendment No. 13, which seeks to delete paragraph (g) of this subsection, is also opposed. In the case of a person to whom paragraph (g) applies, that is, a person to whom leave to land in the State has been refused, there exists a mechanism within existing immigration law to return that person to their last point of departure for the State or to their country of origin within two months of their being refused leave to land. There may be occasions where – through legal proceedings or otherwise – the two-month period elapses. In such circumstances removal of the individual, if still appropriate, could not occur except by deportation. Of course, any refusal of leave to land is subject to prohibition of refoulement in section 5 of the Refugee Act, 1996, and subject to the saver that if an asylum application is made, it will be dealt with to proper finality before any removal can take place.
It would surely be anomalous that an individual who does not meet the criteria for entry to the State for given reasons, can effectively frustrate this decision by the passage of time. That is the effect of deleting paragraph (g). To do so would create the threat of dangerous or otherwise undesirable persons frustrating their removal within the two-month period by, for example, instituting legal proceedings, no matter how frivolous, and regardless of the outcome of those proceedings being in a position after two months where the State cannot enforce the refusal of leave to land notice by way of deportation. It would be very unwise to create such a loophole. A person who comes under this paragraph and who is given notice of a proposal to deport him or her is entitled to the full protections the Bill offers, but should not be immune from deportation, as proposed by amendment No. 13.
I stress that a person who seeks asylum cannot be prevented from making such an application and having their case dealt with. Our existing asylum determination procedures make this clear, as will the Refugee Act, 1996, when it becomes operational before the end of the year. Section 8(1) of the Refugee Act, 1996, provides that anyone who arrives at the frontiers of the State or is in the State seeking asylum or requests not to be returned or removed to a particular country or otherwise indicates an unwillingness to leave the State for fear of persecution may apply to the Minister for a declaration that he or she is a refugee. Under the existing arrangements for dealing with asylum applications, which were arrived at in consultation with UNHCR, a similar position pertains – anyone seeking asylum at the frontier or within the State will have their application for asylum properly dealt with.
It is axiomatic that any State should have power to remove people who flout the basis on which they were let enter or stay. A person who fails to comply with the immigration laws of the State should be liable to deportation. Without this provision we would likely experience an even greater increase in illegal entry and stay and wide-scale abuse of permission to remain in the certain knowledge that no specific power exists to deport in these circumstances. This would simply play into the hands of the racketeers and traf fickers in people, enhancing their cruel trade. Such activities give rise to what might be termed "ancillary industries" in the production of illegal documents, fixing marriages of convenience and other criminal rackets such as prostitution, extortion and ruthless exploitation of individuals.
Firm sanctions for breaches of immigration controls must exist, including the power to deport, if we are not to expose our community to these activities. As I said earlier, in an ideal world one would not require deportation orders but I have yet to meet the man or woman who would say that this is an ideal world.
I recently circulated a Bill to outlaw trafficking in persons. It is important that the provisions in that Bill are not so emasculated by amendment No. 13 to this Bill as to undermine the overall policy objective of that Bill of preventing the work of traffickers.
I should at this point signal that among the proposals for consideration in the immigration and residence Bill, which is being developed in my Department, I am looking at the possibility of a form of review mechanism for decisions to refuse leave to enter the State. Senators should not infer from this, however, that I accept the notion that a person who has been refused leave to land should be immune from deportation. One could not have such a situation.
Amendment put.
Tá
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Burke, Paddy.Caffrey, Ernie.Connor, John.Cregan, Denis (Dino).
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Henry, Mary.Jackman, Mary.O'Meara, Kathleen.Taylor-Quinn, Madeleine.
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Níl
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Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Cox, Margaret.Cregan, JohnDardis, John.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.
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Kett, Tony.Kiely, Daniel.Kiely, Rory.Leonard, Ann.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.Walsh, Jim.
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Tellers: Tá, Senators Connor and O'Meara; Níl, Senators T. Fitzgerald and Quill.
Amendment declared lost.
I move amendment No. 8:
In page 4, subsection (2)(a), line 13, after "State" to insert "for serious criminal offences".
Section 3(2)(a) refers to "a person who has served or is serving a term of imprisonment imposed on him or her by a court in the State,". We are seeking the insertion of the words "for a serious criminal offence" after the word "State". Someone whose status has yet to be determined by the determination procedure may find himself or herself in prison because, for example, he or she was required to pay a fine for a relatively minor offence and, for some conscientious reason, decided not to pay it. Someone should not be deported for a relatively minor offence. The Minister should, therefore, give the section greater clarity by inserting the words "for serious criminal offences". This would provide for the possibility mentioned.
Paragraph (a) of this section refers to a person who has served or is serving a term of imprisonment. There should be no misunderstanding of the intent of this and the other paragraphs of this subsection. They identify persons who are liable for deportation but membership of a class of persons so liable does not imply that all such persons should be deported. Each case depends on the circumstances. For example, a tourist who becomes involved in a serious brawl may be a suitable candidate for deportation but a non-national settled here for a number of years who was involved in the same brawl may not. The factors which decide that in each case are listed at subsection (6) and are designed to ensure the decision made is proportionate to the facts of the particular case.
In such circumstances the insertion of the words "for serious criminal offences" proposed in the amendment would not be appropriate. Apart from the question, how serious is serious?, the expression does not take account of a persistent perpetrator of minor offences such as a minor drug dealer, a persistent shoplifter, a prostitute or a joyrider who may well be a suitable candidate for deportation. Breaches of immigration laws are all summary offences and in cases of repeated or continuing breaches of those laws deportation may often be the most appropriate response.
Amendment put and declared lost.
We now proceed to amendment No. 9. Amendment No. 10 is an alternative. Amendments Nos. 9 and 10 may be discussed together.
I move amendment No. 9:
In page 4, subsection (2), lines 14 to 16, to delete paragraph (b).
Under subsection (2)(b) an order may be made in respect of a person whose deportation has been recommended by a court in the State before which such person was indicted for or charged with any crime or offence. The legal basis for this is questionable. The Minister has indicated why the legislation is necessary – the State needs wide powers to protect itself – but should it extend to a person who has not been found guilty of an offence and is still presumed innocent?
I support the amendments.
These amendments are opposed. The provision at paragraph (b) whereby a court can make a recommendation for deportation in a criminal case is of long standing. It is important for the courts to have this power and it is often exercised in the interests of the person concerned. For example, a court may, as an alter native to arriving at a guilty verdict and imposing a custodial sentence, recommend deportation thus sparing the individual concerned from having a conviction on his or her record and the possibility of a stretch in custody, not a pleasant prospect at the best of times but known to be particularly difficult for non-nationals. Recent cases where persons charged with offences have been glad to avail of this provision have included persons charged with prostitution offences and breaches of immigration law.
As with the other paragraphs of this subsection, the fact that one may be a member of the class of persons specified does not mean that the Minister must in all such cases make a deportation order. Take the case where a court, having heard the evidence in a criminal trial, is satisfied that there is sufficient evidence to find the accused non-national guilty as charged. It is open to the court instead to apply the Probation Act, which is not a conviction, and make a recommendation that the accused be deported. What must first happen in such a case is that the Minister must serve notice under subsection (3) inviting the potential deportee to make representations as to why the deportation should not take place. Any such representations must be considered. The Minister may decide not to deport because one or more of the factors for consideration listed at subsection (6) indicate that there are good reasons for letting the person stay, despite the close shave with the law. It could be the case also that the court might indicate this possible course of action and adjourn the case to see whether the Minister will follow the court's recommendation and if there is no deportation, may proceed to convict and sentence accordingly.
Amendment No. 10 which seeks to delete the words "or charged with" appears to seek to confine the application of this provision to more serious, namely, indictable offences. It does not take account of a persistent perpetrator of minor offences, such as a minor drug dealer, a persistent shoplifter, a prostitute or joyrider who may well be a suitable candidate for deportation. Breaches of immigration laws are all summary offences and in cases of repeated or continuing breaches of those laws deportation may often be the most appropriate response. Neither is it right to omit the more serious end of the scale of offences with which the District Court may find itself dealing.
This provision is an important element in the court's discretion to deal in a non-custodial way with offenders before it and should be maintained to offer full flexibility to the court in dispensing justice. The court does not have the power to order the making of a deportation order. It only has the power to recommend deportation. The Minister has to consider all the circumstances.
The Minister said that recent cases where persons charged with offences have been glad to avail of this provision have included persons charged with prostitution offences. If a non-national is before the courts charged with prostitution offences, there is much merit in ensuring the case is pursued to the ultimate before the person concerned is deported. Does the Minister agree that the public good is not served in deporting the person concerned before the court has had an opportunity to hear the full circumstances of the case? Leaving aside the issue of deportation, if I was the victim of a crime of robbery, I would like to think that the courts would pursue the matter to the ultimate.
This provision is of long standing and was first included in the Aliens Act, 1935. The court may recommend to the Minister that an individual be deported and adjourn the case to see whether a deportation will be made and, if not, impose a sanction. As an alternative, the court may find the individual concerned guilty and apply the Probation Act and recommend to the Minister that he or she be deported. Some individuals may not like to be deported as an alternative to the criminal sanction. There are others who may much prefer to be deported than spend time in an Irish prison. The individuals concerned are non-nationals and may believe that their interests are best served by deportation but it is only a recommendation; it up to the Minister to decide whether an individual should be deported. The Minister has to take account of any representations made in that regard. It is not a decision that is taken lightly. Neither do I believe that judges recommend that people should be deported for the sheer hell of it – far from it. They only do so where they would consider that to be in the interests of society at large. There are a number of safety valves. It is not written in stone, it is a discretion following upon a recommendation.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 10 not moved.
I move amendment No. 11:
In page 4, subsection (2)(e), line 24, after "asylum" to insert ", having been determined under the appeals procedure set down in the Dublin Convention (Implementation) Order, 1997,".
Amendment put and declared lost.
I move amendment No. 12:
In page 4, subsection (2)(f), line 27, after "asylum" to insert "having been properly considered".
Amendment put and declared lost.
I move amendment No. 13:
In page 4, subsection (2), lines 29 and 30, to delete paragraph (g).
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 14 not moved.
I move amendment No. 15:
In page 4, subsection (2), lines 31 to 34, to delete paragraph (h).
This amendment relates to section 3(2)(h) which refers to:
a person who, in the opinion of the Minister, has contravened a restriction or condition imposed on him or her in respect of landing in or entering into or leave to stay in the State.
I do not think anybody would disagree that this is an extremely wide provision. It also allows the Minister to make a deportation order, even if the application for asylum by the refugee is pending. It is far too wide. A breach of a condition can, and indeed should be, an offence. It should also allow the Minister to prosecute, but the process of prosecution for a breach of a condition should not short circuit the refugee's application. On more than one occasion we have heard that it is not the intention to deport a person while their application is pending. The Minister has stated, quite rightly, that considerable work has gone into shortening the time that is taken to process an asylum application. It appears quite clear, however, that a potential major problem arises from this provision.
I suppose this wording is what the Minister wanted. The subsection refers to:
a person who, in the opinion of the Minister, has contravened a restriction or condition imposed on him or her in respect of landing in or entering into or leave to stay in the State.
I would have thought that at all times these matters should be determined by the courts, and that the Minister should not have any such powers.
This amendment is opposed. Paragraph (h), which the amendment seeks to delete, applies to those who entered the State illegally and undetected – for instance, without a valid entry visa – persons who entered the State on conditions imposed by the Minister but who did not adhere to those conditions – for instance, a person admitted as a visitor or student who then entered employment in the State – persons who have no permission to remain in the State or persons who failed to register with the Garda Síochána.
The effect of amendment No. 15, in deleting this paragraph, is to say to non-nationals: "You may breach the conditions under which you have been allowed to stay in the State all you like, but don't worry, you won't be asked to leave. You can do what you like and there is no problem." That is an untenable position. The movers of this amendment cannot seriously want to send this message to people who abuse the hospitality of Irish society by ignoring the rules. For example, Members would not allow ill-mannered guests in their homes if they started breaching the rules of civilised behaviour. Similarly, hoteliers and owners of other premises rightly ask unruly customers to leave. However, Senators who would surely uphold the right of an individual to do so want the State to deprive itself of that sanction for non-nationals who will not keep to the rules. The State should not be expected to do that.
On many occasions I have said there can be no question of removing anyone who is still in the asylum process. That has already been spelt out plainly elsewhere and does not need the broad brush of this amendment, the effect of which would be to undermine the notion of immigration and residence controls for non-nationals altogether.
Is the Minister satisfied the Bill ensures that a refugee who has applied for asylum cannot be deported while that process is continuing?
Yes, very definitely. Any individual who makes an application for asylum cannot be deported pending the consideration of that application. In addition, the person against whom a deportation order has already been made can subsequently apply for asylum. If that individual does apply for asylum the application must be processed. It could not be fairer.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 4, subsection (2)(i), line 36 after "good", to insert "for serious reasons related to the personal misconduct of the person concerned".
This amendment is to ensure the provision is in line with EU law.
The amendment is opposed. This amendment limits unnecessarily the power of the Minister in a situation where it is not possible to predict what set of circumstances might arise in the future, which might give rise to a need to deport or exclude a person. In relation to paragraph (i) of subsection (3), it is important to note that persons in this category, and the other categories mentioned in subsection (2), must have their cases considered in combination with subsection (6) of this section. The criteria in that subsection already capture most if not all of the circumstances where serious reasons related to the personal misconduct of the person concerned would lead to the conclusion that deportation was conducive to the common good.
The purpose of paragraph (i) is to provide a residual scope to cater for circumstances not foreseen by the preceding paragraphs. This is precisely in line, incidentally, with the approach suggested by Mr. Justice Geoghegan in his judgment in the Laurentiu case.
The amendment could, for instance, be held to rule out the removal of family members of a person being deported on the basis of one of the earlier paragraphs, even though that might be in the best interests of, in particular, minor dependants of the person, although unrelated to their personal misconduct.
This residual provision is, as Mr. Justice Geoghegan indicated, necessary so that the common good can be protected against situations which may threaten it, even though not specifically foreseen by the other provisions of this Act.
Another example, which I mentioned earlier, relates to the Yugoslav football team who, let us say, had somehow managed to enter the State to fulfil the aborted fixture. It would be generally agreed that they should be deported before they could actually play. We simply must acknowledge that the power contained in this provision is necessary.
This provision is far too wide. It gives the Government power to do anything it wants, subject to the provision set out in the term "conducive to the common good".
Amendment put and declared lost.
I move amendment No. 17:
In page 4, subsection (3)(a), lines 38 to 40, to delete "notify the person concerned in writing of his or her proposal and of the reasons for it" and substitute "ensure that the written order and the reasons for it are delivered to the person named in the order by a person authorised by the Minister and that the order is presented in a language understandable to the person to be deported".
Subsection (3)(a) deals with serving a deportation notice on a person. It states:
Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands.
The Minister says that in many cases it would not be possible to serve the notification on the person in language he understands and that this is all right. We disagree.
The Minister mentioned 15 languages. For example, could a deportation notice in Kurdish or Iraqi be served on a person from Kurdistan who only speaks Kurdish or on a person from Iraq who only speaks Iraqi? A deportation order should be served on a person in a language he understands and not subject to the qualification where possible or where necessary. The person should understand in his own tongue what the deportation order says. This is a reasonable request. There are hundreds of different languages. The Minister spoke of leaflets being available in 15 languages. Perhaps there is a greater range available to him in connection with deportation orders. I seek an assurance from him that in all cases those who are issued with deportation orders would, in justice, receive them in a language they understand.
Section 3(4) sets out what must be contained in the notice under section 3(3)(a) to a person whom the Minister proposes to deport. The information contained in the notice of a proposal to deport is part of a fair and open procedure and is in conformity with the principles of natural justice. The person is told of the basis on which a decision to deport is being considered and is given an opportunity to have the proposal reviewed. The Minister is obliged to consider the grounds put forward by the individual. The provision of such a mechanism in a statute is distinct from previous administrative reform and leaves everybody concerned in no doubt about what steps should be, and are being taken.
Senator Connor asserts that there should be a statutory imperative on the Minister of the day to ensure that the individual concerned is spoken to in his or her language. He also asserts that there are hundreds of languages in the world. There are thousands, not hundreds of languages in the world. If it is a statutory imperative on the Minister to provide the interpretative facilities, Senator Connor would effectively require the Minister, by statute, to do something which might prove to be impossible. For example, some jurisdictions only use the English language in their deportation orders. That is a fact of life. I have done my best in providing interpretative facilities for as many mainstream languages as I could. It is true I may not be able to instruct a Kurd in Kurdish, but it is likely I would be able to do so in Turkish. There is a need to be practical. It is not possible to include in a statute an imperative on a Minister to do something which may prove to be impossible.
The Minister is saying that a person may be deported where the deportation order or the reason for the deportation has not been communicated to him. That is very unfair. The Minister of the day must, in the case of a deportation order being served on a person who does not speak English, French, Italian or any of the mainstream languages, insist that it is clearly communicated to such a person. Will he indicate and specify the number of languages officials in his Department who can instruct a non-national who is in receipt of a deportation order?
The Senator's amendment is impossible to implement. It requires the Minister to provide a copy of the order to a person before a decision has been made on whether to make the order in the first instance.
It puts the cart before the horse. It is not possible to provide a copy of the order if a decision has not been made on making an order.
The amendment assumes the order has been made and served.
A similar amendment was put down by Deputy Jim Higgins in the Dáil and withdrawn by him on the basis of Government amendments which are now incorporated in the Bill. These ensure the provision of copies of notices in the person's own languages where this is needed and can be done. In view of this it appears that not only is the amendment impossible but superfluous. Deputy Higgins might not accept that Senator Connor is doing him any favours by moving this amendment when he withdrew it. I accept the Senator may not believe that Deputy Higgins is infallible and that may be the reason he moved this amendment. In any event this was pointed out to Deputy Higgins on Committee Stage in the Dáil, so I fail to understand why it has been moved now.
Like many of his remarks in this debate those puerile and childish comments hardly become the Minister. Will he indicate and identify the number of mainstream languages, such as Arabic, English, French, Spanish and Chinese, in which these notorious deportation orders can be communicated to non-nationals?
As I indicated earlier, we can provide for 15 languages. If necessary we can probably provide for more. We do our best to ensure that interpretative facilities are available. We do not seek to be unfair to anybody. I have always said that inherent in this process is its fairness, which is beyond dispute. It is as open, transparent and fair as I can make it. It is a good procedure which has been seen to be fair. Obviously, I cannot do the impossible and provide language interpreters overnight if they are not available. We do our best to try to ensure that the individual concerned understands what is happening. Obviously, we will continue to do that.
Amendment put and declared lost.
I move amendment No. 18:
In page 5, subsection (4)(c), line 19, to delete "as soon as practicable" and substitute "within a reasonable time taking into account personal and family circumstances, medical and psychiatric history and special cases such as unaccompanied minors".
The purpose of the amendment is to give a more human face to section 3(4)(c). It states that a notification of a proposal of the Minister shall include "a statement that the person may consent to the making of the deportation order within 14 working days of the sending to him or her notification and that the Minister shall thereupon arrange for the removal of the person from the State as soon as practicable". I seek to improve that wording by deleting "as soon as practicable" and substituting "within a reasonable time taking into the account personal and family circumstances, medical and psychiatric history and special cases such as unaccompanied minors".
If special circumstances pertain to an individual who is threatened with deportation, they should be written into the legislation so that accommodation is made for people with specific difficulties, such as health and psychiatric problems. The legislation should recognise that and the Minister should be generous enough to allow it to be written into this section.
I moved an amendment to section 3(4) (c) on Committee Stage in the Dáil to remove concerns that had been expressed by Members and NGOs regarding the previous wording, which gave rise to an Opposition amendment similar in terms to the one before the House. It was withdrawn in favour of my amendment at that time. The aim is that, while the removal of the person should proceed reasonably promptly, it should not be done with inappropriate haste. The insertion of the words “as soon as practicable” gives expression to this intent and they were sufficient to meet not only the concerns of Deputy Higgins on that occasion but also, as he accepted, concerns beyond them. I am at a loss to understand why the Senator wishes to revisit the narrower and more restrictive wording of his amendment.
Amendment put and declared lost.
I move amendment No. 19:
In page 5, subsection (5), lines 26 and 27, to delete paragraph (b).
Will the Minister clarify the intent of this paragraph? It appears that the provisions of section 3(3) shall not apply to certain persons who according to section 3(5)(b) are persons to whom sections 3(2)(c), 3(2)(d) or 3(2)(e) apply, which include persons deported under the Dublin Convention. Is the effect of the paragraph such that those persons will have no right to appeal against their deportation order?
Do they have a right of appeal against their deportation?
Does the Minister agree that there has been a 100 per cent rejection of appeals under the Dublin Convention?
Does he agree that this leaves people covered by section 3(5)(b) in an invidious position?
No, because the Dublin Convention is different in that a clearcut decision is involved. The key question is whether the individual originally arrived in Ireland from a Dublin Convention state. It is straightforward, but I would worry deeply if people began to win appeals on the basis that officials were not able to determine, or determined incorrectly, from whence the applicants came. Uniquely, an appeals mechanism is even in place then to ensure that there is a failsafe mechanism. The reason it is there is to make it 100 per cent certain that fair play is administered. I do not expect anybody to take note of the fact that every opportunity has been taken to ensure fairness, but it is nonetheless important from an historical perspective that I put it on the record. It is always important to state categorically what is the position.
Every application is potentially a Dublin Convention application and is examined, at least cursorily, from that point of view. In many cases it is as easy to arrive at a Dublin Convention decision not to transfer to another convention country. Let us take the example of an individual disembarking from a trans-Atlantic flight. Generally, it is not worth the effort exploring the Dublin Convention possibilities unless one were to conclude that the person had the ability to fly. The application is accepted into the system to be dealt with substantively if it is obvious that the person concerned arrived on a trans-Atlantic flight which did not stop en route. If it was crossing the Atlantic, I cannot think of where it could stop. It appears, therefore, to be a straightforward situation.
Similarly, if the preliminary interview at the time of applying indicates that the person arrived from eastern Europe in the back of a lorry, not knowing which EU state was first entered, and the person has no documentation, such as a passport or visa, the pragmatic thing to do is to admit the application into the substantive system and not waste time and effort on Dublin Convention inquiries which are most likely to prove fruitless. There may be other features of an application which suggest that it should be dealt with here, notwithstanding that the convention's terms indicate that another convention country could be regarded as having responsibility. Thus, the number of cases where transfer under the Dublin Convention is seriously explored is a small proportion of the total intake of applications.
The provisions of section 22(5) of the Refugee Act, 1996, are also relevant. Even if the deciding officer is confident that France, for example, is the country responsible under the convention for dealing with the application, if France does not agree for whatever reason, the question of transfer and, accordingly, the possibility of an appeal, does not arise. A decision to transfer to another convention country is made only in cases where there is absolute certainty on the part of the deciding officer backed up by the agreement of the receiving country's acceptance that the decision is correct. It is no wonder that the number of decisions upheld on appeal is high. The reason for the appeals mechanism is just to make 100 per cent sure of fairness in the system. I could not be any fairer than that or employ as good a failsafe mechanism.
Amendment, by leave, withdrawn.
I move amendment No. 20:
In page 5, between lines 28 and 29, to insert the following new subsection:
"(6) in particular, notwithstanding any other provision of this section the Minister shall not make a deportation order in relation to a person who is a lawful resident if the effect of so doing would contravene or carries a substantial risk of contravening Article 13 of the International Covenant on Civil and Political Rights".
Amendment put and declared lost.
I move amendment No. 21:
In page 5, between lines 28 and 29, to insert the following new subsection:
"(6) Notwithstanding any other provision of this section the Minister shall not make a deportation order in relation to a person if the effect of so doing would contravene or carries a substantial risk of contravening—
(a) Article 33 of the UN Convention relating to the Status of Refugees;
(b) Article 3 of the European Convention on Human Rights; or
(c) Article 2 of the Dublin Convention.".
Amendment put and declared lost.
Amendments Nos. 22 and 23 not moved.
I move amendment No. 24:
In page 5, subsection (6), between lines 32 and 33, to insert the following:
"(c) the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November, 1950 (and subsequent Protocols), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December, 1984 and the Convention on the Rights of the Child of 20 November, 1989;".
Amendment put and declared lost.
I move amendment No. 25:
In page 6, subsection (6), line 2, after "Minister" to insert "and where the Minister decides not to make a deportation order against a person he or she shall grant the person a written authorisation to remain in the State.".
This amendment would ensure people are not left in limbo when the process is completed and where the Minister decides not to make a deportation order. We believe this is important and it has been referred to by the UNHCR in its submission.
I regard the amendment as unnecessary. The Aliens Act, 1935 and the orders made thereunder, in particular, the Aliens Order, 1946 and the Aliens (Amendment) Order, 1975, set out the criteria on, among other things, permission to remain in the State.
It is under these orders that permission to remain in the State must be granted. If, following consideration of the question of deportation, the Minister decides to let a person stay, it is invariably on the legal basis of those orders. This may involve simply doing nothing, because the person may already have a current permission to remain with an unexpired period yet to run. Where a previous permission to remain had expired, where no permission to remain had previously been granted or where a current permission to remain was on a different basis or subject to different conditions from that now forming the decision to give permission to remain, the necessary concomitant to a decision not to deport, the Minister must, under the Aliens Orders, renew or grant permission to provide a legal basis for the continued stay in the State.
The amendment is unnecessary because it is already covered by existing law. The basis for that law, the Aliens Act, 1935, is, as I have already indicated, up for complete replacement, and the work of developing new legislation to put immigration and residence law on a modern, comprehensive footing is already under way in my Department.
Amendment put and declared lost.
Amendment No. 27 is an alternative to amendment No. 26. Amendments Nos. 26 and 27 will be taken together by agreement.
I move amendment No. 26:
In page 6, to delete from and including "other than" in line 20, down to and including "offence," in line 26.
This amendment proposes to delete a number of lines from the legislation which appear in the section on deportation orders. Section 3(9)(b) refers to a person ordinarily resident in the State. The amendment proposes to delete from "other than" in line 20 to "offence" in line 26, in other words, a person who has served or is serving a term of imprisonment or a person whose deportation has been recommended by a court, in order not to deprive people of their right to three months notice because they may be in trouble with the law.
There are very sound reasons why a person who has breached the laws of the State and is serving a sentence, or has served a sentence for such breaches, or a person whose deportation has been recommended by a court, should not be given the three months notice of deportation provided for here.
The public interest would not be served by extending the safeguard of subsection (9)(b) as a general rule to convicted criminals or those where a court dealing with criminal charges considers the matters serious enough to recommend deportation. The provisions of the Bill already allow some scope to the Minister, in paragraph (a) of this subsection, to allow a suitable interval between the making of a deportation order and the date and time at which the person is to report for the purpose of deportation. It would, however, be wrong to include among those entitled to a fixed three months notice those who have been convicted of criminal offences or where a court had recommended deportation in a criminal trial. I can see no justification for having to give a convicted drug dealer or sex offender, for instance, three months notice of the making of an order simply because he or she had been here five years or more.
As with an earlier amendment from Senator Connor, which referred to a "serious criminal offence", the first question that must be asked is, where does one draw the line. Is the latest in a catalogue of petty crimes to be regarded as still minor? Is such a non-national, because of a career of five years or more here at their anti-social trade, to have an extra three months in which to continue to afflict Irish society? That is the effect of Senator Connor's amendment, and I do not think that would be acceptable to society.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 27 not moved.
I move amendment No. 28:
In page 6, subsection (10), line 30, after "who" to insert "without reasonable cause".
This amendment proposes to include more justice in these sections. Subsection (10) reads, "A person who contravenes the provision of a deportation order or a requirement in a notice under subsection (3)(b)(ii) shall be guilty of an offence". The amendment proposes to amend this section to read, "A person who without reasonable cause contravenes the provision of a deportation order. . . ". It is normal practice in law that a person who contravenes something contravenes without reasonable cause. I ask the Minister to include this wording.
Section 3(10) is a standard provision creating an offence of a breach of an order. For example, the provision at section 17 of the Domestic Violence Act, 1996, which deals with breaches of barring orders, safety orders and protection orders, is worded in a similar way. Under that Act, the possibility exists that a person could be unaware of the existence of, say, a protection order or interim barring order and still be in breach of it. I think, however, the House would not wish it otherwise in relation to those orders.
Under this Bill, by contrast, there are ample notice requirements at each stage of the process leading to the making of the deportation order, therefore, the scope for a person to act other than knowingly in breach of the order is minimal. The process also involves the opportunity for the person concerned to make representations before any order is made and for those representations to be taken into account. If the person still believes there is good reason the order should not be followed through, the proper course is to challenge the validity of the order in the High Court, not to act in breach of it. The provisions of this Bill ensure there is ample scope for such a challenge.
The question of the reasonableness of a person's actions in breach of an order which the amendment seeks to introduce is properly, in my view, a matter to be taken into account by the court hearing the charges, rather than a matter for the discretion of the immigration authorities in deciding whether charges should be brought.
Amendment put and declared lost.
Section 3 agreed to.
SECTION 4.
I move amendment No. 29:
In page 6, subsection (1), line 37, to delete "The" and substitute "Except where to do so would contravene section 5 of the Refugee Act, 1996, or any other provision of international law, the".
I referred earlier to the issue of international law in relation to this Bill. This amendment seeks to make clear that a person cannot be refused entry under section 4 of the Bill where the effect would be to send him or her back to face persecution.
This amendment is opposed. Section 4 of the Bill is designed not so much to remove a person from the State as to ensure that he or she does not get here in the first place. It is aimed primarily at persons who are inter nationally notorious for war crimes, crimes against humanity, terrorist or other serious offences. The criteria specified in the section are confined to the interests of national security or public policy and might in some circumstances encompass persons who, although not necessarily actively engaged in such activity personally, advocated or fomented it such that their presence in the State would be an international affront, would tend to arouse widespread public disorder or have a destabilising effect on society.
Such is the serious and exceptional nature of the exclusion order that I have included at section 12 of the Bill a provision that exclusion orders are to be laid before the Houses and may be annulled by motion of either House within the requisite number of sitting days.
The exclusion order depends to some extent for its success on preventing public carriers from allowing such a person to embark on a journey to the State. Under the precursor to this provision, a small number of exclusion orders were made during the last few decades. One related to a former Nazi officer, who had some interest in land in the State, and another was made in respect of a colonel in the South African security service actively engaged in furthering the apartheid regime about whom there were indications that he intended to arrive in the State.
Orders of this nature are referred to in section 9(15) of the Refugee Act, 1996. The effect of that provision is to exclude from entry into the State a person arriving at a port or border who is the subject of an exclusion order made on grounds of national security or public policy. Subsection (16) of the same section provides that such a person can only make an asylum application with the consent of the Minister. That reference is updated by section 11 of this Bill.
I am satisfied the manner in which the Refugee Act caters for the possible asylum claims of persons the subject of exclusion orders is as appropriate now as it was when that legislation was promoted by the former Minister of State, Joan Burton, with the support of her colleagues in the last Government, and on that basis I cannot accept amendment No. 29.
The prohibition in section 5 of the Refugee Act on refoulement applies, by its own terms, to all removals or expulsions in any manner whatsoever to a place of possible persecution so this amendment is, in any event, unnecessary.
Amendment, by leave, withdrawn.
I move amendment No. 30:
In page 6, subsection (1), line 37, after "may", to insert "for serious reasons related to the personal misconduct of the person concerned".
I would like to hear the Minister's response to this amendment.
The amendment is opposed. As I have already said, the criteria are appropriate to deal with the types of person I have described as the target for exclusion orders, which may include those who, rather than personally involve themselves in despicable activities, are the architects of such activity in others.
I am satisfied the words used in section 4 as it stands are sufficiently restrictive to ensure that appropriate use only can be made of exclusion orders, but at the same time flexible enough to encompass appropriate use of the provision which is not confined to the personal misconduct of the individual. It might, in particular instances, for example, be necessary to make an exclusion order in respect of the spouse or child, or other person so closely associated with a notorious dictator or warmonger in circumstances where their presence in the State might provide a form of "hook" on which to hang efforts to pull the undesirable person into the State.
Would the Minister accept the amendment is an attempt to ensure the legislation is in line with EU thinking, practice and law that the common good can only be invoked against a specific wrongdoer?
I am satisfied exclusion orders on the basis of the present wording can only be used in appropriate circumstances. In effect, I believe exclusion orders cannot be used in inappropriate circumstances. I have outlined the circumstances which I clearly consider appropriate. I am satisfied there are sufficient safeguards in the legislation as it stands. I trust this addresses Senator O'Meara's concerns.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 31 and 32 are out of order as they involve a potential charge on Revenue.
Amendments Nos. 31 and 32 not moved.
Section 4 agreed to.
SECTION 5.
Acting Chairman
Amendment No. 35 is an alternative to amendment No. 33 and they may be taken together. Is that agreed? Agreed.
I move amendment No. 33:
In page 7, between lines 6 and 7, to insert the following subsection:
"(2) The person detained under the provisions of subsection (1) shall be brought before the District Court in order to have the validity of the deportation order verified.”.
This amendment deals with section 5(1). It relates to the powers given to immigration officers and members of the Garda.
Acting Chairman
We are dealing with amendment No. 33.
I am referring to amendment No. 33 in my name which is allied to amendment No. 35. This section deals with powers given. It states:
Where an immigration officer or a member of the Garda who with reasonable cause, suspects that a person against whom a deportation order is in force has failed to comply with any provision of the order or with a requirement in a notice under section 3(3)(b)(ii), he or she may arrest him or her without warrant and detain him or her in a prescribed place.
This amendment seeks that the deportation order of a person arrested and finding himself in such a situation would be verified in the District Court. For example, a person might not understand the language in which the deportation order was communicated. If, not having understood it, that person was not in compliance with the deportation order and a garda or immigration officer accosted him, they have the right to arrest him and detain him in what is called a prescribed place. This is a draconian measure. Immigration officers and the Garda Síochána will ultimately take their orders from the Minister. He or she is the ultimate authority to whom they are answerable.
These powers should not be vested in the Garda Síochána or immigration officers because of the clear danger of a person not fully understanding a deportation order they may receive and, therefore, not fully complying with it. In order to ensure that due process and fair procedures are observed, the amendment seeks to ensure that in such cases deportation orders are verified in the District Court.
The amendments are opposed. They both seek to introduce a court procedure to the deportation process, apparently in an effort to provide a new mechanism for the validity of either the order or the detention made on foot of a person's failure to co-operate with the order.
This is an obligation on those endeavouring to execute a deportation order which can be of no constructive purpose. An order signed by the Minister is valid on the face of it and can only be made after the processes set out in section 3 have been gone through. If the correctness of the procedures leading to the making of an order is to be put into question, the subject of the order always has the right to institute judicial review proceedings to do so.
The places hitherto prescribed as places of detention under aliens orders are all either prisons or Garda stations, and it is my intention that the same or a similar list of places be prescribed for the purposes of section 6(1) of this Bill. In relation to both types of place, there are well enshrined processes for obtaining legal assistance on demand. The 1987 custody regulations in relation to Garda stations contain specific provisions dealing with the detention of non-nationals which include contacting the diplomatic or consular officer of that person's home country. There is accordingly ample opportunity after detention to invoke the jurisdiction of the High Court for habeas corpus or judicial review proceedings.
However, it is not as if detention in such circumstances is sprung out of the blue on the subject of a deportation order. The procedures provided in the Bill are designed to give the person ample notice, first, of the fact that the making of an order is in prospect and then, under section 3(3)(b)(ii), that an order has been made. Subsection (9)(a) of that section spells out in more detail what that second notice is to contain. In addition, detention can only arise in circumstances where the deportation order has been made after all these procedures and where the person still persists in acting in breach of the order.
The proper course for testing the soundness of the deportation process in any case is judicial review in the High Court, a process that is already well established, and not the unnecessary and ineffective procedure envisaged in the amendment. The eight week limit provided for in the Bill as it stands is designed to ensure that there is ample time in which to make suitable arrangements for the removal of a person from the State, but to ensure at the same time that deportation detention is not open ended. The purpose of detention is only so that removal can be achieved, and the duration of that detention is only until removal is achieved, the purpose of the deportation order itself. It is simply an essential ancillary to the order for use where co-operation is not forthcoming and the deportation cannot be achieved otherwise.
The eight week period is necessary to cover the time that may be needed to make suitable travel arrangements, which will not always coincide conveniently with scheduled routes and may on occasion have a security element, and to allow for any difficulties which may arise in obtaining a travel document from the country of origin of the person being deported. This is recognised by immigration authorities in Europe generally as a particular difficulty in relation to certain countries such as China and north African states. The process may involve having inquiries made in the home village of the person concerned or searches of official records of uncertain reliability and can be protracted, particularly if the person in question is not co-operative.
The period provided strikes a balance between the principle of not having open-ended detention and the practical requirements of the process of removal. They must also ensure that the person is not rewarded for non-co-operation by having the period for detention lapse, thus diminishing the enforceability of the order. The two day period envisaged in amendment No. 35 is utterly impractical. As I said, we are dealing with cases where there is already in existence a valid and legally enforceable order, the deportation order. If the subject of that order wishes to challenge its validity, then recourse can be had, as was successfully done in the case giving rise to this legislation, to the High Court's inherent jurisdiction to hear an application for judicial review.
I am intrigued by the Minister's description of how long it might take to get somebody back to China. I am also intrigued by the notion that a person may have escaped from there in the first place and reached Ireland. However, eight weeks is an excessive period. In view of the ability to travel around the world quickly in this day and age, it is not like taking the slow boat to China. Therefore, eight weeks is an excessive period and I do not intend to withdraw the amendment.
Amendment put and declared lost.
I move amendment No. 34:
In page 7, subsection (3), line 19, to delete "proper" and substitute "standard passenger".
The section to which the amendment refers allows the Minister to press-gang a master of a ship or a person in charge of a railway train, road vehicle or aircraft into his service to take out of the State a person upon whom a deportation order has been served. Our concern is that the master or person in charge is required to afford to the deportee and his or her dependants proper accommodation but we do not know what is meant by "proper accommodation".
The amendment seeks to replace the term "proper accommodation" with the term "standard passenger" which, in the language of the transport industry, refers to a second-class train ticket and an economy ticket on an aircraft. The Minister has a clear responsibility to ensure that any person who is thrown at the mercy of a ship owner or individual in charge of an aircraft or train is not treated as an inferior steerage passenger because of the nature of their boarding of the train, boat or aeroplane. If the phrase "standard passenger" was used, the position would be clear because that is the recognised term in the transport industry in the context of how a person should be treated. I appeal to the Minister to accept the amendment.
I do not intend to accede to the Senator's request because standard accommodation might not suit certain people. One could argue that standard passenger accommodation would suit a person in full health, but it would not suit a person who is not in full health, has a disability or is in need of special treatment. In those circumstances, I contend, and I am sure Senator Connor will agree, that the term "proper accommodation" is appropriate.
What powers of enforcement does the Minister have in terms of so called proper accommodation once the craft carrying the deportee is outside the territorial area or waters of the State?
It will be clear that quite often a person being deported will be accompanied by an immigration officer. Subsection (3) makes clear the obligations carriers have in relation to deportees. It makes it the duty of a carrier to take on board a deportee or any of his or her dependants if required to do so by an immigration officer or a member of the Garda Síochána. Therefore, certainty is provided in the procedural aspects of deportation. Obviously, a deportation order can only be effected by putting somebody on an aeroplane or ship to his or her country of origin and, therefore, carriers have a crucial link in the procedures for return. In the normal course of events an individual would be returned to his or her country by aircraft. However, it must be remembered in such circumstances that while there are direct routes to northern Europe and America, there are many countries to which Ireland does not have direct flights. Clearly in such circumstances Heathrow Airport, for example, is an appropriate place from which to fly the deportee to their destination. If an individual is being returned to Northern Ireland the options are greater in terms of transport. The same applies to Great Britain.
In practice there is very little difficulty with an airline taking on board a deportee. Situations can and do arise where a deportee can become violent and unruly. In such circumstances it would be normal to follow the directions of the captain as to what should be done with the passenger. This could amount to the removal of the individual until such time as things calm down or it could involve additional escorts. Obstruction is an offence. Due to the fact that in most cases a deportee is transited through a European airport, it is usual that an escort is provided. It is also necessary to ensure the individual is put on the flight to the country of final destination. This in turn is done with the co-operation of the local immigration authorities. The work done by immigration officers in the State is unappreciated. Their task is very difficult and in general it is handled with great sensitivity and efficiency.
The Minister mentioned the great sensitivity of immigration officers. That may be the case in Ireland, but I was on a flight from Europe where the treatment of those being deported was appalling. We must remember the death of one woman on a flight from a European capital – it is probably wiser not to mention the city. The proper treatment of people who are being deported is a very serious issue. I presume we have responsibilities along the lines being put forward by Senator Connor. I was on a plane going to west Africa and I thought the people being repatriated, for want of a better word, were treated in an extraordinarily rough manner. I would not describe their resistance as a problem to those sending them out. While we may say what we like about people here, we must remember our concerns about their accommodation on flights.
That may well be true and I have no reason to doubt what Senator Henry said – I doubt if she would tell us such a story if she did not know it to be true. Our immigration officers deal with all of these cases in the most sensitive manner possible. People are treated with dignity. The procedures and guidelines are well known. Every possible effort is made to ensure human beings are treated with dignity, respect, kindness and sensitivity. Of this I am certain.
Earlier I praised the co-operation of those involved with minors. We cannot dismiss our obligations to people by handing them over. This was always one of my worries about the Dublin Convention and about the return of people to what other countries described as safe places. For example, Algeria has been described as a safe place for the most unlikely reasons.
To be fair to me, the issue here is not the safety of the places concerned. That is a matter which I have dealt with in the other House and which I will be happy to deal with here when the appropriate moment arrives. In so far as the deportation process is concerned, every possible effort is made to ensure the individual's dignity is respected at all times. That is a fact. As to where individuals are returned to, we all know that the rule of non-refoulement is applied and works. Under that rule an individual may not be sent to a country where he or she will face persecution or to a country from whence he or she will be sent to a place where he or she will face persecution.
Currently, the number of asylum seekers coming to Ireland is high relative to the way things were some years ago. The majority of our applicants for asylum appear to come from Romania, followed by Nigeria, followed of late by Poland.
Question, "That the word proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Acting Chairman
Amendment No. 35 has already been discussed with amendment No. 33.
I move amendment No. 35:
In page 7, subsection (6)(a), line 52, to delete "8 weeks" and substitute "2 days or such longer period not exceeding 4 weeks as may be authorised by order of a court".
Question, "That the word and figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 36:
In page 8, lines 9 to 19, to delete subparagraph (iii).
On amendment No. 35 I stated that the period of eight weeks was excessive in the context in which it appears. Part of the explanation for this can be found in section 5(5)(b)(iii). Section 5(5) refers to a person being detained and the number of things which must be taken into account in this regard, including that a person shall not be detained for a period or periods exceeding eight weeks. This is excessive. Section 5(5)(b) sets out the period which shall be excluded in reckoning a period for the purpose of paragraph (a). Under subparagraph (iii) this includes, in the event of a person instituting court proceedings, the period spent by a person in a place of detention between the date of the institution of proceedings and the date of their final determination and, in the event of an appeal, the appeal period. It appears that an extraordinary situation would apply in that event. That is the reason I am seeking the deletion of subparagraph (b)(iii). The UNHCR, in its submission, also sought its deletion because it expressed concern about this particular paragraph and the potential of any abuse taking place in this regard. It is the purpose of those of us on this side of the House to highlight these matters and to suggest to the Minister that there is an excessiveness in this part of the Bill.
I should point out that amendment No. 36 is also in the name of Senator Connor.
Amendment No. 36 seeks to delete subparagraph (iii) of subsection (6)(b) and its effect would be to encourage deportees to institute and protract court proceedings, however frivolous or vexatious, challenging deportation orders so as to stretch out the eight week period and thus make the deportation virtually unenforceable. I could not accept this amendment. It will reward two types of improper activity, namely, non co-operation with a lawful order and abuse of the process of the courts.
Subsection (5) of this section sets out clearly what the court can do in relation to the continued detention or otherwise of a person who is challenging a deportation order. I am satisfied that provision makes clear the safeguards not only for the individual concerned but also for the interests of the State in ensuring that lawful orders are obeyed.
I should also make it clear that there is no question of a person who has been in compliance with the terms of the order, up to the point of instituting judicial review proceedings, being detained because the person has not been in breach of the order. In the light of what I have said, I ask, more in hope than in confidence, that the Senators will withdraw their amendment.
Amendment put and declared lost.
Section 5 agreed to.
Amendment No. 37 not moved.
Sections 6 and 7 agreed to.
SECTION 8.
I move amendment No. 38:
In page 9, subsection (1)(b), line 9, after "particular," to insert "having had the purpose of the request clearly explained,".
This amendment refers to section 8 (1)(b) which requires a deportee, at the port of exit, to sign a document accepting their travel documents or other documents which refer to their deportation. We are of the view, because it is not stated in the section, that a person should not be compelled to sign anything without having the purpose of the request for signature clearly explained to them. That is a basic principle where a signature is required. None of us would sign a document unless we knew clearly what we were signing. People have been known to sign their own death warrants, but that would be an extreme case.
The purpose of the amendment is merely to improve the Bill and protect the rights of a deportee. The Minister often seems to forget that deportees do not have the ordinary rights we would expect to have. None of us would dream of signing a document unless we clearly understood what it entailed. Again it is a clear case of fair procedures and fair play being afforded to a person in a position that cannot be pleasant; they are under arrest and are being deported. This amendment should be inserted; if not, I would like the Minister to explain the reason it should not be inserted.
This amendment is opposed. Subsection (1)(b) addresses a specific type of non-co-operation which has arisen from time to time. Many states will not readmit people to their territory unless satisfied that they are their own citizens. Others will not permit transit through their territories unless the person in question has proper documentation. The best evidence of a person's nationality is a passport issued by the country of nationality. In some cases, the person to be deported will have destroyed any passport or other identity documents either before arriving in the State or as a direct attempt to frustrate or delay the deportation process. In such cases, it is usually necessary to obtain a passport from the country of destination.
This section, in effect, requires the person named in the deportation order to co-operate in the process of removal from the State. It would be a normal requirement to ensure the compliance of the person that they are aware of the purpose of any request. The request envisaged in subsection (b), however, is a straightforward request to provide a signature or fingerprint to obtain a document for the person to travel. The reference to fingerprints is needed here because some countries, Chile, for example, require a fingerprint as well as a signature for affixing to their passport. If we are returning a Chilean who does not have a passport we must, therefore, get a fingerprint as well as a signature on the Chilean passport application form.
Why is that not explained fully to them?
The words proposed would add nothing of substance to this provision. It goes without saying that the request must be understood before it can be complied with. If the request was not understood before the person was asked to comply with it, it could not be complied with. That is my logic. Presumably, the passport application form from the person's country of origin will be understandable unless the person is illiterate, in which case common sense would dictate that it should be explained.
Amendment put and declared lost.
I move amendment No. 39:
In page 9, subsection (1), between lines 15 and 16, to insert the following:
"(d) shall not, in the course of his or her deportation from the State, be subjected to a degree of physical violence by the agents of the State likely to endanger the safety of himself or herself or the safety of others.".
This amendment gives protection to the gardaí or other officials of the State who may be involved in deportations where resistance may be encountered. Allegations have been made by people who were deported that they were physically abused by members of the Garda or immigration officers. We are not making any judgment on these matters but it is a fact that allegations have been made. It should be clearly written in the legislation that a person being deported shall not, in the course of his or her deportation from the State, be subjected to a degree of physical violence by the agents of the State likely to endanger the safety of himself or herself or the safety of others.
I am sure the Minister has confidence in those who are deporting people from the State but, as Senator Connor said, there is no harm inserting this amendment in the legislation.
The amendment is opposed. Agents of the State must act within the law. Members of the Garda Síochána are bound by the same criminal law that applies to the rest of us. In addition, they are subject to the provisions of their own disciplinary code and to the independent complaints mechanism of the Garda Síochána Complaints Act, 1986. Immigration officers involved in the carrying out of deportation orders are invariably members of the Garda Síochána.
Other agents, such as carriers which may be involved in dealing with deportees, have the same duty of care and responsibility that they would have to any passenger in their care, and are also subject to the criminal law. On that basis, the proposals in the amendment are superfluous; their purport is already the law.
Most deportees, in the end, resign themselves to the removal process having had the necessary opportunity to present whatever case they may have had before the order was made. There have been, however, a small number of cases where the person in question frustrated the lawful order by acting in such a way that the captain of the aircraft on which the seats had been booked had no option but to refuse the person on board in the interests of the safety of other passengers. As well as being distressing for other passengers, such activity is an attempt to frustrate the operation of the law, and subsection (2) of the section makes such non-co-operation an offence. Without this provision, such non – co-operation would not be an offence. Without the Senator's amendment, the ill-treatment which it seeks to criminalise is already an offence.
Amendment put and declared lost.
Section 8 agreed to.
Sections 9 and 10 agreed to.
SECTION 11.
Amendments Nos. 40, 41 and 42 form a composite proposal and are to be discussed together by agreement.
I move amendment No. 40:
In page 9, line 49, to delete "second".
The Bill states:
There shall be a board to be known as the Refugee Advisory Board . . . to perform the functions conferred on it by this Act.
(2) The Board shall be independent in the performance of its functions.
We find its infrequent meetings disturbing and do not understand why this board cannot meet at least once a year, as it must report to the Minister. The statute should reflect that it should be required to meet once a year. The Minister understands that difficulties and problems arise in the area of refugee and asylum law. Given our prosperity, Ireland will become a favoured destination for people seeking asylum and for illegal immigrants. There is a need for this board to meet more often than once every second year and we hope these amendments will be accepted.
I cannot understand why this board, above all others, has been singled out for a bi-annual report. It is a new board that will encounter problems we did not have before because of the recent increase in the number of asylum seekers and refugees in the State. I would have thought we would need to keep a close eye on what is happening initially. Perhaps we could have bi-annual reports in ten years' time, but I would have thought it essential for the board to report frequently now so we would have an idea how the Act was working. This is a new situation, but this could continue for two years until we get a report and three years before we see anything of it. That would be a serious mistake.
These amendments are opposed. Their purpose is to require that the Refugee Advisory Board should publish a report at yearly, rather than two-yearly, intervals.
According to section 7(1) of the Refugee Act, the Refugee Applications Commissioner is already required to submit a report annually to the Minister, and thus to the Oireachtas, on his or her activities during the year. What is in mind for the advisory board is that it should take a longer, broader look at the entire context in which Irish society interacts with refugees and asylum seekers. I do not think any of us would want the advisory board simply to replicate the commissioner's reporting function.
I would be concerned that a requirement on the advisory board to report annually could limit its capacity to take the longer view and thus diminish its usefulness as a source of information and opinion to inform the development of Government policy in this important area.
One of the precedents which was considered in developing this proposal was that of the Garda Siochána Complaints Act, 1986, which has two reporting requirements in section 13. One is the standard requirement of an annual report on the board's activities during the previous year and the equivalent of that provision in the Refugee Act context is section 7(1) of the Act. The other is a requirement to report once every three years on the system of investigation and adjudication of complaints. This type of systematic review is what I have in mind for the advisory board, and consideration was given to having it report on a three year cycle. I took the view that three years might be too long in the context of refugee and asylum matters, and decided to propose a two year interval as being a reasonable compromise between the need to allow the advisory board to consider and take stock of the bigger picture and the need for me, the Executive and the Legislature to have the benefit of the board's deliberations without having to wait too long for them.
That is why I am of the view that the advisory board should report less frequently than the Refugee Applications Commissioner and I ask the Senators to withdraw their amendments on that basis. It is open to the board to produce its first report after 13 months or 18 months or whatever interval it considers suitable. It is also open to the board, in a report, to recommend that this provision be amended to allow it report more, or possibly less, frequently. Any recommendation by the board in this regard would have to be taken seriously, since the members of the board will be the ones most intimately involved with the preparation of their own reports and will know better than anyone else what the optimum is from experience.
Amendment, by leave, withdrawn.
Amendments Nos. 41 and 42 not moved.
I move amendment No. 43:
In page 10, line 4, after "of" to insert "immigration and".
This is a very simple amendment that seeks to include discussion of immigration policy in the board's work. It appears innocuous and constructive and one I hope the Minister will accept.
This amendment is opposed. It proposes to extend the remit of the Refugee Advisory Board to encompass immigration matters generally. In principle, I am not against the notion of an advisory body on immigration matters. I have in course of development, a set of legislative proposals designed to replace the Aliens Act, 1935, and its associated orders. In the context of the development of those comprehensive proposals I am prepared to consider statutory provision for such an advisory body.
To widen the remit of the Refugee Advisory Board in this way would be a sizeable additional encumbrance on the board. The membership of the board is designed to deal with refugee and asylum matters. To widen the remit as the amendment proposes would require the expansion of the membership so as to make it very unwieldy and unworkable, or else the under-representation of refugee and asylum interests so as to make way for representatives of the broader range of interests legitimately concerned with matters of immigration, but not refugee or asylum, policy.
It is already clear from the terms of reference of the board that it has the function and duty to report on immigration matters as they affect asylum seekers and refugees, in the same way that it can report on housing matters as they affect asy lum seekers and refugees or any other matter as it affects asylum seekers and refugees.
It would not make much sense for the Refugee Advisory Board to have as part of its remit immigration policy as it affects Swiss pensioners wishing to retire here, the numbers of students coming to participate in English language courses or whether there should be a special visa regime for Latvian computer programmers, all matters which have nothing to do with the concerns of asylum seekers or refugees. That, however, would be the effect of the amendment.
On the basis of my undertaking to consider the inclusion of such a body in the immigration and residence legislation under development in my Department at present, I invite the Senators to withdraw this amendment.
Amendment put and declared lost.
Amendments Nos. 44 and 45 are related and are to be taken together by agreement.
I move amendment No. 44:
In page 11, line 25, after "of" to insert "the human rights community of".
This board is a good innovation but we do not want it to look like a group of good hearted people who are put there without as much expertise as we would like. While it is important to have persons representative of refugees and applicants for asylum, it would also be good to have representatives of what I have described as the human rights community. I cannot see how this might endanger the board and it might make the board even more mindful of its obligations in monitoring this legislation, which is extraordinarily important if the Refugee Advisory Board is to mean anything.
These amendments are opposed. While I appreciate the motivation underlying them, the Bill as it stands, which has been amended already to take account of some of the comments made by interested NGOs on the matter and to take account of the debate in the Dáil, is sufficiently broadly indicative to the Minister of the type of person to be appointed to the board. In situations like this, it does not really improve matters to make the provisions unduly prescriptive: if this approach is carried to any length, a Minister may find himself or herself so hedged about by qualifications and requirements as to be unable to find a sufficient number of people who meet the stringent criteria and are willing to serve.
I am concerned that people who will be appointed to this board will not have the necessary expertise. We all have an interest in refugees, whether we are for or against them. It would be good if board members had expertise in human rights law or some other relevant discipline which would make them more specifically suitable for appointment to the board. I see no effort being made in the establishment of the board to appoint people with legal expertise. The Minister might even appoint me but I would not be as useful as someone with knowledge of refugee law. Senators O'Meara and Connor are also interested in refugees but none of us has the necessary expertise in this area. The board will fulfil the very important function of monitoring the situation and it is important that the best people are appointed to it.
I agree with almost everything Senator Henry has said but I do not wish the legislation to be too prescriptive with regard to the people who would be eligible for appointment. It is my experience that if one is too prescriptive in matters of this nature one has difficulty in fulfilling the prescription. In those circumstances and acknowledging the motivation of the proposer, I ask the Senator to withdraw the amendment.
Amendment put and declared lost.
I move amendment No. 45:
In page 11, line 30, after "refugees" to insert "and knowledge of refugee, asylum and human rights law".
Amendment put and declared lost.
Amendments Nos. 46 to 48, inclusive, not moved.
I move amendment No. 49:
In page 12, between lines 23 and 24, to insert the following subparagraph:
"(ii) the insertion of the following paragraph to subsection (1):
‘(d) An unaccompanied minor or person with a legal disability must have a legal representative or social worker present during any interview.'.".
This section deals with applications for refugee status. It sets out how a person, having applied to the Minister, shall be interviewed by an authorised officer or immigration officer at such times as may be specified by the officer. The section requires the officer to inform the person that he or she is entitled to consult a solicitor and the High Commissioner and requires the applicant to make himself or herself available for interview at the time specified.
The obligation on the officer, therefore, is to tell the applicant that he or she is entitled to consult a solicitor and the High Commissioner. Vul nerable people, such as unaccompanied minors or those with a legal disability, must have a legal representative and, in the case of an unaccompanied minor, an appropriately trained social worker. It is not sufficient merely to inform such people of their rights. It is a basic requirement that such vulnerable people be protected by the law.
The amendment is opposed. To the extent that it deals with unaccompanied minors, the amendment is superfluous. The meaning and effect of section 8(5) are clear. It places each unaccompanied minor who comes to notice forthwith in the care of the local health board whose job it is to act in loco parentis. It is a requirement on the health board, as part of its fulfilment of that role, to ensure that it provides immediately whatever the child needs by way of food and shelter and by way of protection, including ensuring that the child is suitably accompanied during any questioning by an immigration official, whether an asylum application has been made, and in deciding whether such an application should be made.
The sequence of events is clear where an unaccompanied child arrives at a port. Once the immigration officer is satisfied that the person is under age and is unaccompanied, the health board is contacted immediately and no questioning, other than such basic inquiries after the child's comforts as any responsible adult might offer a child, can take place until a suitable companion has been arranged by the board.
Likewise, where a child presents at the offices of the refugee applications centre – soon to be the commissioner's office – the sequence of events is equally clear. Once the officer at the reception counter is satisfied that the person is under age and is unaccompanied, the health board office located across the reception area is immediately contacted and takes responsibility for the child. It is then for the health board to decide what steps are to be taken in the child's interests, including whether to apply for asylum and to ensure that the child is appropriately accompanied at each contact with officials. All of this is a necessary implication of the health board's role in relation to the child as required by the Child Care Act, 1991, and needs no further legislation.
As far as persons under a legal disability are concerned, a provision on the lines proposed in the amendment would place an onus on immigration officers and officers of the commissioner which could be very difficult to discharge. How is such an officer to know whether a person is under a disability without first conducting an interview? What happens if, during the course of an interview, the officer gets an inkling that all may not be well with the person mentally? Is such an interview to be rendered invalid? It is important that common sense and humanity be brought to bear on situations such as this without tying the matter up with such legislative strictures that the law becomes impossible to operate either in the letter or the spirit.
It is possible to rely on the common sense and humanity of officers who encounter a person who may be mentally disabled. We cannot expect to legislate in absolute detail for every possibility that arises but we can put our trust in the commissioner's officers and in immigration officers to ensure that the special problems of the person who appears to be suffering from a degree of mental instability or incapacity will be dealt with humanely.
Our immigration officers do their job humanely and with great sensitivity. It is a very difficult task.
I accept what the Minister says in relation to unaccompanied children. I am not satisfied with the situation regarding a person with a mental incapacity or impaired intellectual function. Is it not reasonable that when it becomes apparent to the interviewing officer that a person has a legal disability, the officer should be required to summon appropriate legal advice for such an applicant?
Unaccompanied children who arrive in this jurisdiction are treated as well as we can possibly treat them.
No one could say otherwise. In these circumstances, I ask Senator Connor to accept my assurance in good faith. I am sure this good faith will be maintained by whoever succeeds me in this position. Children are treated with great sensitivity and their vulnerability is recognised.
The relevant health board would be very concerned about the treatment of any applicant who had a disability. Individuals who deal with children have, in the past, ensured that children were treated as well as possible. As I have said, 33 children arrived in the country since 1996. All are still in the jurisdiction and have been made as welcome as we could make them. I can assure the Senator that people with disabilities are treated as well as possible.
This is important when one considers from where these people may have come and the recent mental trauma they may have suffered. I cannot see why including provision for a person with a legal disability in the Bill would be such a disadvantage. I do not mean people from Sierra Leone who have had their hands cut off. I have said how well I have found unaccompanied minors treated. The other half of this amendment is surely important also.
I have said that these cases are dealt with sensitively. There comes a point in all walks of life where one cannot provide ad nauseam in written form for every possible eventuality. If I were to do this in legislation, the Bill would be four times as long. In the circumstances, I must reject the amendment while outlining again the State's concern to ensure that all people in vulnerable situations have that vulnerability recognised. That is what happens in practice.
Amendment put and declared lost.
We now come to amendment No. 50. Amendment No. 51 is an alternative. Therefore, amendments Nos. 50 and 51 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 50:
In page 12, paragraph (c)(ii), to delete lines 38 to 41.
Amendment No. 50 relates to that section covering an interview with a person seeking asylum to establish a number of important matters. Paragraph (e) states that the interview shall seek to establish the reason the person came to the State and paragraph (f) states the legal basis for the entry into or presence in the State of the person. These elements have been the subject of concern for refugee groups. While the need for an interview seeking to establish the reason the person came to the State might appear obvious, it could cause many difficulties for that person. This is particularly the case if one thinks of the situation from which a person might be coming, to which Senator Henry referred with regard to other amendments. An asylum seeker may be coming from a situation in which he or she experienced considerable terror for perhaps a long time. The person may not know the circumstances of the country in which he or she has arrived and would probably be extremely fearful.
While it is reasonable on the face of it to seek to establish a number of things, including obviously the reason the person came into the State, we seek the deletion of these paragraphs in the belief that the rest of that part of the Bill would elicit sufficient information in the interview. Paragraphs (e) and (f) are not only unnecessary but are potentially inadvisable.
These amendments are opposed. It should be remembered that the preliminary interview serves two purposes, it gathers information necessary from a strictly immigration point of view and it establishes basic facts about the existence of an asylum claim. That is the case whether the asylum claim is made on entry into the State at a port or airport, or in the much more usual case, that of 85 per cent of applicants, where the person applies for asylum at the refugee applications centre in Mount Street, Dublin, having already entered the State illegally and evaded immigration controls. I already pointed out that people come into the centre and say that they do not know from where they came or how they got there. This is a regular occurrence.
Immigration officers have a job to do. It is a wide-ranging, sometimes difficult and always sensitive job. Part of that job is to detect and deter illegal immigration, just as it is part of the job of any member of the Garda Síochána to detect and deter illegal activity generally. Another significant part of that job is to be on the lookout for indications on the part of those entering the State that they may be seeking asylum, whether that is conveyed by the use of plain words or by a less well articulated fear of removal. They are trained by, among others, the UNHCR in this process. These differing aspects of the job are not, however, mutually exclusive.
In relation to both of these amendments, I cannot imagine a situation where an immigration officer, interviewing a person who has just arrived at a port or airport, could fulfil his or her duties without asking the question, "Why have you come to Ireland?" It is simply unrealistic to try to exclude such an elementary question from such an interview. The answer might be, "For a holiday", in which case the notion of an asylum application does not arise and the immigration officer will perhaps proceed to check that the person has sufficient funds for the duration of stay – all perfectly routine immigration work which any of us may be asked by any immigration officer in any country. The answer may well be, "Because I want to apply for refugee status", or something much less coherently expressed which nonetheless gives rise to the suspicion in the immigration officer's mind that this might indeed be a candidate for the asylum process. If that is the case, that is the first step in bringing into play the entire procedure of the Act.
This interview is preliminary in nature only, it is only for the purpose of establishing the basic facts about the applicant, not for the exploration of the substance of the claim, which is a matter for a later step in the process, covered in detail in section 11 of the Refugee Act, 1996. It would be wrong to make the assumption that paragraph (e) is an attempt to have the immigration officer or, at this early stage of the process, the commissioner's authorised officer explore the substance of the case.
Similarly, amendment No. 50 seeks to exclude from the preliminary interview of a person, who is in the process of identifying himself or herself as an asylum seeker having just arrived either at a port or at the offices of the commissioner, any inquiries as to whether the person has a visa, a work permit, permission to remain in the State or the like. While I recognise that this information may not go to the substance of the asylum application, that is not the point of this preliminary interview. The information may be pertinent to the manner in which the application is dealt with or relevant in deciding what is to happen the applicant after the asylum process has been completed. It may also be pertinent to the legality or otherwise of an entry into the State.
Take, for instance, a person who is living and working here on foot of a work permit and permission to remain in the State. Let us say that because of a change in the political situation in the country of origin that person decides to apply for asylum here. The fact of making the application does not of itself change the person's immigration status here. If at the end of the asylum process that person is not recognised as a refugee – unlike the situation where a person, who is otherwise illegally in the State, applies and is refused recognition – the question of return to the country of origin may well not arise. The failed applicant would in those circumstances be entitled to continue living and working here on the same basis as before applying and as during the asylum process. It is important to be aware of such a fact from an early stage.
From an immigration point of view also, my Department needs to be made aware of each instance of illegal entry into the State, even if this awareness arises some time after the actual entry and even though because of the asylum application there can be no question of refusing leave to land and sending the person back straight away. It is not good enough to assume that every asylum applicant has entered illegally, and the immigration officer or commissioner's authorised officer should be able to ask the person basic questions about the legality or otherwise of his or her entry into or presence in the State.
Thus at the preliminary stage, when the person in question is in the process of letting it be known that he or she is an applicant for asylum and the immigration officer or the officer of the commissioner is establishing the basic facts about the applicant – not, it must be stressed, exploring the substance of the claim, which is a matter for another day later in the process – it must be possible to ask this question as well as the others listed in the proposed section 8(2). Senator O'Meara said that various refugee agencies have expressed objections to these proposals.
I used the word "concerns".
I do not believe they have anything to be concerned about for the reasons I have outlined. It is interesting that while various refugee agencies have expressed concerns about these provisions, they do not seem to be able to agree on what they are concerned about. It is very difficult, in those circumstances, for me to interpret that to which they are unequivocally opposed. In those circumstances and in view of the circumstances I have outlined, I believe the appropriate measure would be for these amendments to be withdrawn, although the Senator would expect me to say that.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 51 not moved.
I move amendment No. 52:
In page 12, line 42, paragraph (c)(ii), after "shall" to insert "be conducted in the presence of the person's legal adviser, who shall have a right to make submissions, and shall".
In light of the Minister's comments on amendment No. 50, amendment No. 52 makes a great deal of sense. The Minister has spoken about asylum seekers appearing at Mount Street not knowing what country they are in or where they have come from. I am not surprised at that considering the level of terror from which some people will have escaped. One need only read some newspaper accounts to appreciate that.
Considering the importance of the preliminary interview and the fact that the legal basis required for a person's entry into or presence in the State is an extremely important element of the process, it would appear to me to be not only advisable but essential that the interview be conducted in the presence of a person's legal adviser who would have a right to make a submission. That would be particularly important in light of the inclusion of subsection (2)(f) as part of the preliminary interview, namely, that the interview shall establish the legal basis for the entry into or presence in the State of the person. That would appear to be quite a substantial legal matter for which a person would require legal assistance.
A preliminary interview could potentially be conducted shortly after a person's arrival in the State depending on the circumstances which pertain. Such a person could be still in a traumatised and shocked state. In that context, it would be strongly advisable for a legal adviser to be present. I submit that this is a reasonable and necessary amendment.
This is a very important issue. Many people seeking asylum who come from regimes of terror are told to destroy all documentation and say as little as possible in order not to endanger those who are left behind. It is important that people who have been told to say "I know nothing" are afforded the best possible chance to put their case. Senator O'Meara's amendment is very worthy of consideration.
I do not think it is worthy of consideration. My personal view is that this amendment takes the biscuit. If an individual arrives in off the street to the refugee applications commissioner and decides he or she will seek asylum, the officer would have to, in accordance with this amendment, ask the person whether he or she was accompanied by a legal adviser. If the person were to say that he or she was not accompanied by a legal adviser, the next step in the daft procedure would be that the officer would have to say "Well, in those circumstances, I am very sorry; I cannot ask you your name, age, where you came from, how you got here or whether you have any papers". Has anyone ever heard anything so daft? It is daft that an officer would not be able to ask the person what language he or she spoke and would not even be in a position to provide an interpretation facility for the individual for the simple reason that he or she did not attend with a legal adviser.
Let us be practical for a moment. What possible legal submissions could be required for an individual to say "My name is X. I am 24 years of age. I come from Kosovo and I do not want to return there because I am afraid". Let us get real.
Amendment put and declared lost.
Amendments Nos. 53 and 54 not moved.
I move amendment No. 55:
In page 13, line 30, after "child", to insert "and such child shall not be refused leave to land in the State and shall not be made the subject of a deportation or exclusion order for so long as the child is not in the custody of any person.".
Amendment put and declared lost.
Amendments Nos. 56 and 57 not moved.
Amendments Nos. 58 and 59 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 58:
In page 14, line 28, to delete "14" and substitute "18".
It would appear that, under this section, 14 year olds will be compulsorily fingerprinted. Is that the case?
Would that not be very oppressive for unaccompanied minors and children?
Fingerprinting is not a form of assault on a person. Nobody would be hurt by it.
Question, "That the figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 59:
In page 14, line 54, to delete "10" and substitute "2".
Will fingerprinting records be retained for ten years under the legislation and, if so, why?
The Bill proposes that fingerprints will be retained until one month after the applicant has acquired citizenship or the expiration of a period of ten years. This provision is in line with the practice in other EU member states and the proposed Eurodac convention. While some EU member states destroy records after eight years, some after ten years and some only on acquisition of citizenship, others do not. There is a wide variety of practice which will become standardised when the Eurodac convention, in whatever form the European Commission determines is the most suitable, comes into effect.
Question, "That the figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 60:
In page 15, between lines 21 and 22, to insert the following new subparagraph:
"(ii) the insertion in subsection (2) after ‘to interview the applicant concerned' of ‘and to afford that applicant an oral hearing at which his legal advisers and other representatives (if any) may make submissions on his behalf'.".
This amendment seeks to provide for an oral hearing at which an applicant would be able to avail of his or her normal legal rights.
The amendment is opposed. An interview under section 11 is conducted on the basis of an inquiry into the claim for recognition as a refugee under the 1951 Geneva Convention. It is not adversarial in nature and is not as such a hearing in the sense in which such a term might be applied to court proceedings. It is part of an investigative process, albeit a significant part. It is important, therefore, that this co-operative effort between the applicant and the commissioner should not be turned into a procedure which is akin to court proceedings. To do so would seriously undermine the spirit and principles of the 1951 Geneva Convention.
I agree that there is merit in setting out a procedure for the conduct of the interview phase of the investigation, the term used at section 11. Such a procedure could usefully, among other things, provide for the making of brief oral representations at or immediately after the interview proper which might well supplement the provisions for written representations provided for in the Bill. This sort of detailed prescription is best left to the regulation making power at section 23 which, at paragraph (a), specifically envisages such procedures. On that basis I invite the Senator to withdraw the amendment.
In the context of legal representation, as a result of my agreement with the Legal Aid Board and the making of the necessary order under the Legal Aid Act, the board has up and running the refugee legal service which provides independent legal advice and representation to assist with asylum applications. It is my intention to establish an independent monitoring committee to oversee the operation of the legal service to ensure a quality refugee legal service is provided in accordance with the arrangement agreed between the Legal Aid Board and the Department.
I welcome the Minister's remarks.
Amendment, by leave, withdrawn.
Amendment No. 61 not moved.
We now proceed to amendment No. 62. Amendments Nos. 63 and 64 are related. Amendments Nos. 62 to 64, inclusive, may be discussed together.
I move amendment No. 62:
In page 20, line 5, after "position." to insert "In the selection for appointment of the Commissioner regard shall be had to the person's interest and knowledge of asylum and the provision of assistance to refugees and his or her competence otherwise to exercise his or her duties.".
This amendment relates to the appointment of a refugee applications commissioner which will be made by the Civil Service Commissioners. To ensure the right person is appointed to this highly sensitive and important position – the Minister said on Second Stage that the person concerned will be the guardian of the civil and human rights of those seeking asylum and refugee status – a clear direction should be given to the Civil Service Commissioners that they should have regard to the person's interest and knowledge of asylum and the provision of assistance for refugees and his or her competence to exercise his or her duties. He or she should be fully au fait with international law and instruments dealing with asylum seekers and refugees and the international conventions to which we have signed up.
I am delighted that there will a gender balance in the membership of the Refugee Advisory Board. Apparently, none of its members will have to possess any knowledge of refugee, asylum and human rights law and practice. The Government will have a majority as seven members are to be appointed by various Departments. I presume they will not be legal experts or the Minister would have said so. It would be a good idea, therefore, to appoint someone with legal expertise as commissioner. They are not rare birds. This is an extremely important matter. The members of the board may be good hearted but lack expertise which is badly needed. The number of applicants is growing each year. Without any grounding in international law it will be extraordinarily difficult for a commissioner to keep up with it.
The Senator will acknowledge that seven out of 15 is not a majority.
I thought the figure was 12.
These amendments are opposed. As regards the qualities of the refugee applications commissioner, the Civil Service Commissioners can be relied upon to devise a comprehensive and appropriate set of criteria for the position of commissioner taking account of the nature of the full range of statutory responsibilities to be discharged by the holder of the post as set out in sections 1 to 30, inclusive, of the Refugee Act. They have long experience of organising competitions for public service posts and, while undoubtedly the requirements of any commissioner would include those set out in the amendments, there is no need for the Bill to underestimate the Civil Service Commissioners' capacity to identify and express in terms suitable for the recruitment process all of the qualities, experience and skills necessary for the job. These would in addition include managerial and organisational skills.
As to the functions of the refugee applications commissioner, a commissioner who failed to ensure, as amendment No. 63 in the name of Senator Henry states, "that the refugee protection process operates fairly and effectively" would be in clear dereliction of duty. Similarly, the helpful list of subjects for directives suggested in amendment No. 64, also in the name of Senator Henry, covers some of the aspects that are inherent in the power of delegation at paragraph 9 of the Schedule. These matters, and many other aspects of the job of managing and overseeing the work of the commissioner's office, are inherent in that power and I do not consider it necessary to spell them out in the statute.
The chairman of the Refugee Appeals Tribunal was originally to be a civil servant but I decided against this in the interests of independence. An amendment was moved to this effect. It is important that the process is seen to be independent. I am anxious not only that the procedures should be fair, but also that they should be seen to be so.
Amendment, by leave, withdrawn.
I move amendment No. 63:
In page 20, between lines 12 and 13, to insert the following:
"4.–The Commissioner shall have knowledge and experience of refugee, asylum and human rights law and practice.".
"5.–The function of the Commissioner shall be to ensure that the refugee protection process operates fairly and effectively.".
Amendment put and declared lost.
I move amendment No. 64:
In page 20, after line 49, to insert the following:
"8. The Commissioner may from time to time issue directives dealing with the performance of functions and such directives shall include–
(i)standards of best practice;
(ii)interpretative guidance;
(iii)procedures and standards of work;
(iv)guidelines for dealing with refugee women and children and other vulnerable groups;
(v)guidelines for credibility assessments.".
Amendment put and declared lost.
Amendment No. 65 is out of order.
Amendment No. 65 not moved.
I move amendment No. 66:
In page 21, line 34, after "appointment" to insert "and have knowledge and experience of refugee, asylum and human rights law.".
When one has such an important and specialised board it would be a good idea to have some people on it who have knowledge and experience of refugees, asylum seekers and human rights. It is a huge area. I am not convinced by the Minister's arguments but I know I am getting nowhere with them because I will only be told to get real or I will be described as being silly. These amendments are not stupid. There is a sense of real concern about the lack of expertise on this advisory board the Minister has decided upon. I may not be able to do anything about it but at least I can make my objections plain to the Minister. I have been approached by many people who have said they are concerned about the lack of expertise on the board. However, if the Minister is happy with it, that is what we will have to put up with.
The amendments are not stupid and I did not suggest for one moment that they were. That is not the problem. It is just that they are not needed, which is a different matter altogether. In any event, I would not be in a position to say the amendments were stupid and I would not say that of any Senator's amendments. In my view, they are unnecessary. The Civil Service Commissioners can be relied upon to devise the criteria for the position of the chairmanship of the appeals tribunal, taking into account the nature of the full range of statutory regulations to be discharged by the holder of the post as set out in the Refugee Act itself. It will be accepted that the commissioners have long experience of carrying out competitions of this kind. The statute should not underestimate their capacity in this respect. I am convinced they will identify and assess appropriately, and that they will find the person with the qualities, experience and skills necessary for the job. This particular post has the important co-ordinating role set out in paragraph 12 of the Schedule – a role which will require good interpersonal skills. Such qualities would, in my view, be of equal weight with knowledge of the relevant law, the ability to make sound judgments and, no doubt, other qualities that will emerge in the process of discussions with the Civil Service Commissioners. Clearly, they will have to draw on their particular expertise in the recruitment business and that is why I prefer to leave the matter to them. Senator Henry may have a different view to which she is perfectly entitled, but that is my view of the situation. On no occasion, however, did I even intimate that I considered the amendments to be stupid – certainly not.
There is no stipulation that one person on this advisory board has to have any legal expertise in any of these technical areas. All they need to have is an interest in refugees. That is the only way I can read it, although others might read it differently. It would have been no harm to include somebody with legal expertise, but apparently there is no need for it. I find it a little odd.
As the Senator is aware, we are not speaking about the advisory board but the chairmanship of the appeals authority. When the Civil Service Commissioners pick that individual they will clearly have to take into account the qualifications of the person for the job at hand. Among those requirements must surely be a working knowledge of the legal aspects. It would be unthinkable that that would not be taken into account. It comes down to what I have been saying all along; I cannot legislate ad nauseam for every eventuality. There comes a point at which I have to be in a position to trust the nominating body. The Civil Service Commission is independent in the exercise of its functions and it is independent of political influence. I regard that as very important. I am trying to ensure that the integrity of the process is maintained and that it merits respect. Senator Henry may well feel her amendment would enhance that process. I happen to believe that if I begin to list the qualifications one must have for the position, I cannot be exhaustive. It is not possible for me to be so. That is why I am disposed towards leaving the legislation, in this respect, as it is.
Why bother stating that they must have an interest in refugees? That is the only stipulation that is being made. If the Minister does not want to be descriptive, why put that in? I would have thought that to have legal knowledge in the area would be of even more interest. If we must have one stipulation included, can we not have that one?
I cannot put my case any further than I have already.
Amendment put and declared lost.
Amendment No. 67 is out of order.
Amendment No. 67 not moved.
Question proposed: "That section 11 stand part of the Bill."
Under Standing Order 121, I am putting forward the following corrections. In page 9, line 37, there is an incorrect spelling of definition which should be replaced. A correction is also required in page 11, line 28, where the word "to" should be deleted as it is a repetition of the same word in line 23 and is, therefore, superfluous. In page 22, line 42, the word "therefore" should be replaced by the word "therefor". There was a famous Kerry county councillor who used to begin many sentences with the words "Therefore is. . . ".
I would appreciate it if the Clerk of the Seanad could make these corrections under Standing Order 121.
The Chair will direct the Clerk of the Seanad to make the corrections the Minister has requested.
Question put and agreed to.
Sections 12 and 13 agreed to.
SCHEDULE.
I move amendment No. 68:
In page 23, between lines 4 and 5, to insert the following:
"Aliens (No. 2) Order, 1999 (S.I. No. 24 of 1999)."
Amendment put and declared lost.
Schedule agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Senators for their contributions to this important debate. I also thank you, Sir, for your assistance in guiding the discussion on the 68 diverse amendments. The passage of this Bill through the Houses of the Oireachtas achieves three main objectives: it restores the power to deport; protects and maintains the validity of our immigration controls, both regarded by the High Court and the Supreme Court as essential for the protection of society; and by amending the Refugee Act, 1996, will make that Act workable. The absence of this legislation would have exposed the State to the threat of a challenge to other provisions of the Aliens Act, 1935, succeeding on the basis of the arguments put forward in the Laurentiu case. This would have created a serious threat to public order, and especially security, in the event of the State losing the power to control entry to the State. Furthermore, the State would have continued to remain without the power to deport any person, no matter how undesirable his or her presence here. Such a situation could not have been allowed to persist for much longer without risk to the community at large.
The Bill sets out for the first time in statute clear policy and procedures in the area of deportation. It is a source of much pride and satisfaction to me that I was in a position to bring forward an amendment by way of this Bill to the Refugee Act, 1996, to make it workable. It had been my intention to do this by way of a separate amending Bill, but it became clear to me from the contributions on all sides during the Second Stage debate in the Dáil that there was a genuine concern that the Act should be brought into operation at the earliest opportunity. I believe this concern is also shared by Senators.
It is my intention on foot of the passage of this Bill to put in place the necessary secondary legislation and to arrange with the Civil Service Commission for the competitions to appoint the refugee applications commissioner and the chairperson of the refugee appeals tribunal. I intend that the Act will be fully enforced by the end of the year.
I have stated on a number of occasions that I intend to publish early next year a Bill that will replace the Aliens Act, 1935, with a modern legislative code to replace, modernise and codify the law on immigration and residence in the State. This legislation will provide a solid legislative framework for the development and implementation of fair and sensible immigration policies to meet the changing needs of Irish society. It will be the first fundamental review of the State's principal legislative measure in the immigration area. I hope it will give rise to an informed and considered debate, both inside and outside the Oireachtas.
I have already published a Bill to outlaw the cruel but very profitable trade of trafficking in human beings, which I hope to progress in the next session. I look forward to the establishment of the refugee advisory board which, among other things, has the potential to inform and contribute to the debate and further review of our asylum legislation.
There is, therefore, a very busy legislative programme in the immigration and asylum areas. The completion of that programme will provide the State with a body of law which is in keeping with our humanitarian traditions and provides for the best interests of the community as a whole. It is a fitting measure as we enter the next millennium and will not be before its time.
It is my wish that the passage of this legislation by the Houses of the Oireachtas will mark a sea change in terms of the debate on immigration law in this country. It is also my wish that the debate will be informed, free of rancour and the kind of name calling which has become endemic in some Dublin print publications. I have always said that if one is reduced to calling names one has lost the argument.
I again thank Senators. I also thank the staff of the House. I pay tribute to the staff in the asylum section and law reform division of my Department who have worked so assiduously to ensure we are in a position to again protect our society.
I congratulate and thank the Minister and his officials for their hard work on this Bill. I also thank the staff of the House. We have stayed on late to fulfil our duty as legislators. I regret that none of the amendments put forward was accepted by the Minister. The debate has been informed and considered. The Minister has been one of the most prodigious in terms of producing legislation. I have enjoyed engaging with him in debate on amendments, but I have not enjoyed today's engagement. It is unfortunate that none of the amendments could have been accepted. The phrase "Fortress Europe" has been used in terms of non-EU nationals. There is a sense of "Fortress Ireland" about this legislation, which is sad.
I appreciate the Minister's view is fundamentally different from mine. He has a mandate, but it is our obligation to put forward our point of view. I look forward to meeting him again in the House to discuss further legislation.
I wish to be associated with the remarks made by Senator O'Meara. I am opposed to many of the sections of the Bill. I appreciate that the State must protect itself and must have immigration law. Sadly, the Bill is more concerned with deportation than immigration. I regret the manner in which the Minister dismissed many of our amendments. I do not wish to go into the intemperate language, the rancour and the bilious comments made at the outset – they were not made by me. Our only interest in putting down these amendments was to improve the human and civil rights protection of people who may be affected by this legislation.
I sit on the Migration, Refugees and Demography Committee of the Council of the Parliamentary Assembly of the Council of Europe and on more than one occasion I have had to defend the reputation of this country in this area. When I attend this House I must reflect those concerns and when I speak in the way I spoke on Second Stage it is not my intention to be personal towards the Minister, but rather to point out the facts as I know them. The Minister was a hard hitter when he was in opposition. I remember his contributions in the Dáil. I am amazed that he should be so sensitive.
I am of a calm disposition and I may not be very understanding of those who are given to heated emotions at times.
I thank the Minster for introd ucing this necessary and positive legislation. It would be remiss of me if I did not compliment him and his officials for their work over the past two years. We should not lose sight of the fact that the Minster inherited an escalating crisis. Fortunately for everyone's sake, including that of the refugees, the tide has been turned. The queues have become shorter and that will continue.
The House has done good work on this Bill. The Minister has been most informative in his replies to those Members who raised genuine concerns. While I understand that the Minister was not able to accept these amendments, he gave valid and frank reasons for not doing so. I thank him for his efforts.
Question put and agreed to.
