In the past decade, Irish society has undergone a palpable change. From being a struggling open economy on the north-western fringes of Europe, we have turned the economic corner. Ireland is now a vibrant and thriving place.
For many years Ireland was a country of net, and often very substantial, emigration. That is not to say that immigration did not occur, rather that in past decades the scale of outflows of population far exceeded the inflow of non-nationals seeking to establish themselves here. One of the ways in which the new economic phenomenon manifests itself is that Ireland is now a magnet for immigration on a scale not experienced heretofore. More and more people see Ireland as a place where they can come not just for a holiday or to avail of one of the many excellent courses of education available in both the private and public sectors, but to establish a new way of life for themselves and contribute to the economic life of the State.
We have long seen ourselves as Éire na bhFáilte, Ireland of the Welcomes. Immigration policy over the years has been and continues to be informed by this perception of ourselves. We welcome those who wish to visit us and experience some of our cultural and social life. We welcome also those who come to Ireland lawfully as students or as workers to a land of economic opportunity, where they can share in the prosperity of the State and make their own contribution to that prosperity. We also welcome to our shores those who are in need of the protection of the State and to whom we owe the obligations reflected in the various international instruments to which Ireland is a party, chief among which is the Geneva Convention 1951 relating to the status of refugees.
Our immigration laws have accommodated the needs of these various visitors to Ireland over the years, and they must continue to evolve to meet those needs. It is clear, however, that what served us in this regard in the past, when immigration was a trickle, is becoming less and less suited to meet the needs of modern Irish society, with its increased demand for immigration and the increased scale of abuses which unfortunately go hand in hand with that demand. That is why I have in course of development within my Department a set of comprehensive proposals to replace completely the Aliens Act, 1935, the present basis of immigration law and practice, with a new code of immigration and residence law which will provide a legislative framework for the development and implementation of modern immigration policies designed to meet the needs of Irish society now and into the future, and to respect the rights of those who seek to come to our shores.
While these proposals are in course of development, however, difficulties are being faced in the operation of immigration law and practice. These day-to-day difficulties arise out of those who would seek to take advantage of Irish hospitality, by either outstaying their welcome or by circumventing or exploiting for their own ends the proper processes through which Ireland extends its welcome to the world. Accordingly, I have brought forward the proposals in this Bill, in advance of the comprehensive proposals, to be able to tackle now the problems which Ireland is facing on a daily basis.
One of the more sordid aspects of these problems is that Ireland is now experiencing what our colleagues in the European Union have already been undergoing for many years – we are being targeted as a destination for illegal immigration, and that targeting is being done principally by international organised criminals with a network of resources and information at their disposal. I refer of course to the exploitative activities of those who traffic in human beings, people who have no lawful authority, no answerability and no concern for the good of anyone or anything except themselves and their wallets. This is a new phenomenon in this country, but internationally it is well known that organised criminal entities know well the profit potential in exploiting vulnerable non-nationals by flouting immigration controls here and abroad with absolutely no regard for the safety or well-being of their victims.
Last weekend we saw in the United Kingdom an horrific example of the disregard shown for the safety of these vulnerable people. I can only imagine the horror of what these people suffered prior to their deaths and the great sadness which has been inflicted on their loved ones many miles away. We cannot allow the activities of people responsible for such callous disregard for the life of others to go unchallenged in this country. This activity must be recognised in our law as what it is – self-serving and inhuman criminality. Our legislative framework is not properly equipped at present to deal with these traffickers. There is no doubt that this weakness is being exploited and that people are continually being smuggled into the State.
The House will be aware that the level of asylum applications has been increasing significantly. In 1992 we received 39 applications. By 1999 this had risen almost two hundred fold to 7,724. We are receiving approximately 1,000 applications per month, more in one average working day than the entire annual intake of eight years ago. This type of increase does not occur by accident. Asylum seekers, many of whom did not even know where their destination was to be, often tell of large sums of money paid to traffickers. Our procedures for dealing with asylum claims make inland applications possible. This is only right, because it would be untenable and a breach of our international obligations if we were to deny a person the right to access the asylum process in the State simply on the technical ground that the application was not made at the point of entry. However, less than one quarter of applications are made at points of entry to the State. The remainder, over 75%, are made at my Department's offices in Mount Street in Dublin by people who have entered the State illegally and who have evaded the normal immigration controls. We know from intelligence sources that taxis and private vehicles are travelling daily from Northern Ireland and discharging their illegal passengers in Dublin.
These are but a few of the aspects of what is happening in this country which makes it difficult to avoid the conclusion that applicants are being smuggled across our borders in an organised, clandestine way by unscrupulous commercial traffickers. That our systems and our asylum framework are incapable of preventing this activity, and as a result offer the occasion for international people traffickers to endanger the lives of their victims while feathering their own nests, is clearly unacceptable. The Bill is intended to address the inadequacy in our legislative framework by criminalising the activity of these traffickers and providing necessary ancillary powers. As I said already, the problems we discuss are not unique to Ireland. However most other jurisdictions, including most of our EU partners, already have legislation of the type provided for in the Bill, and the lack of such provisions in our law makes Ireland more attractive to the traffickers.
It is worth mentioning that the link between traffickers and organised crime has also been recognised at UN level, and work is now progressing on the negotiation of protocols to the draft UN Convention on Organised Crime to deal with the smuggling and trafficking in human beings. Most recently, the Heads of State or Government of the European Union at the European Council meeting at Lisbon on 19 June restated the commitment made at Tampere in Finland in October last to tackle the evil trade of trafficking in human beings and vowed to bring forward legislation by the end of this year to ensure that those who engage in this trade will face severe sanctions in all member states. Needless to say, we fully support this initiative. The EU legislation will prescribe a common approach to the criminalisation of trafficking in human beings. That is in no sense an argument for doing nothing for the present. We clearly need the provisions now to respond to the evil of trafficking occurring on a daily basis.
Along with the measures to criminalise the trafficking of illegal immigrants, other important provisions of the Bill are designed to ensure a fair and firm set of procedures, including court procedures, which will allow for the provision of the protection of the State to those genuinely in need of it while ensuring that those who are not entitled to a welcome in the State, or who have outstayed their welcome, will be sent out of the State without undue delay when due process has been exhausted.
I have taken the opportunity provided by this Bill to include proposals to provide for a statute-based scheme of judicial review for asylum and immigration cases at section 5 of the Bill, to make certain technical changes to the Refugee Act, 1996, necessary to facilitate the commencement of that Act in full at section 9 of the Bill, and to refine the deportation process under the Immigration Act, 1999, at section 10 of the Bill. I will come to the detail of those provisions later.
Section 2 is the central section of the trafficking provisions of the Bill. Subsection (1) of this section makes it an offence for any person to organise or knowingly facilitate the entry into the State of a person whom he or she knows, or has reasonable cause to believe, to be an illegal immigrant or asylum seeker. The term "illegal immigrant" is defined in section 1 as a non-national who enters or seeks to enter or has entered the State unlawfully. In general, there are three main categories of non-nationals who enter the State illegally. The first are persons arriving from a place other than the UK or Northern Ireland who do not present themselves to an immigration officer for leave to land. The second are persons arriving from the UK or Northern Ireland who are not citizens of states which are exempt from visa requirements and who do not possess the required visas. The third category are those people who may be the subject of a deportation or exclusion order.
As the House will see, the offence also covers trafficking in asylum seekers. The House will, I am sure, condemn unequivocally the actions of those, many of whom may be part of international organised criminal gangs, who profit by exploiting asylum seekers and by flouting our immigration controls. The issue here is not whether the trafficker's cargo is an illegal immigrant or an asylum seeker but that the cargo is people – people who may be subjected to treat ment which runs counter to everything which we in the civilised world have tried to achieve in international standards for the safeguard of human rights. In the terrible case which occurred last weekend in the UK, I am sure it will not matter to the UK authorities whether these unfortunate people were asylum seekers or not. What will matter is that the person or persons responsible for their deaths should be made accountable before the law. That is the correct approach.
The Bill will criminalise the activities of traffickers, including traffickers in asylum seekers, but such criminalisation does not in any way affect the rights of the individual asylum seeker. In so far as the asylum seeker is concerned, the position concerning his or her admission to the State and the processing of his or her application remains unchanged – he or she will continue to be dealt with in accordance with all the procedures and rights appropriate under the current arrangements or under the Refugee Act as soon as that comes into operation, which I expect will be shortly after the passage of this Bill – I will touch on that later. What comes within the scope of these provisions is the activity of the traffickers.
Subsection (2) provides that the offence is committed only when the entry into the State of the illegal immigrant or asylum seeker is facilitated for gain – in other words the offence catches the profiteers only. Those who act for humanitarian purposes or because of family links etc. do not commit an offence under the Bill. This is an important aspect of this Bill and I ask Senators to be aware that this effectively ensures that the scope of the offence catches the profiteer and does not affect the bona fide activities of genuine people or genuine organisations.
Nor will the legitimate operations of airlines and ferry companies be affected by the trafficking provisions of this Bill as these provisions create a criminal offence which requires normal criminal standards of proof and in this instance specific evidence of knowledge and intent. It is important to understand there is a difference between the criminal offence of trafficking and carriers' liability which is imposed by law in most other countries. Carriers' liability legislation imposes responsibility on carriers to check the documentation of passengers to ensure that they have the necessary authorisation to enter the State. If passengers are landed, and it transpires that they do not have the necessary authorisation, the carrier can be automatically fined. Such matters are not provided for in this Bill but I am considering whether such provisions should be a feature of our law and I hope to bring proposals in this respect to Government after consultation with carriers such as hauliers, shipping companies and airline companies.
Subsection (1) also provides that on conviction on indictment of a trafficking offence a person will be liable to an unlimited fine or up to ten years' imprisonment or to both fine and imprisonment should the court consider it appropriate. In addition, there is provision in section 3 that a vehicle suspected of having been used in the commission of an indictable trafficking offence may be detained, initially by the Garda and thereafter by order of the court, where it is necessary to ensure that it is available for the court on conviction to decide to order its forfeiture. In accordance with subsection (5) certain persons, including owners, part owners and drivers of the vehicles may apply to the court for its release and the court may release the vehicle in certain circumstances, including where the circumstances justifying its detention no longer exist and where security is given and a guarantee that the vehicle will be made available for forfeiture if such is subsequently ordered by the court.
The Bill also provides in section 4 that a court may, on conviction of a person on indictment of a trafficking offence, in addition to or in lieu of any penalty, order that the vehicle used in the commission of the offence should be forfeited. The possibility of forfeiture arises in accordance with subsection (2) of this section where the convicted person is the owner or part owner of a vehicle or is the director or manager of a company which is the owner or part owner of the vehicle. Where the convicted person is the person in charge of the vehicle, the vehicle can still be forfeited according to subsection (3) if the owner or part owner knew or could with reasonable diligence have discovered that the vehicle was being used for the purpose of the commission of the offence. I emphasise that there are safeguards for the owners of property in the section, including the provisions of subsection (5), which provides that owners or other persons with an interest in the property must be given an opportunity by the court to show why a forfeiture order should not be made.
Other provisions of the Bill dealing with necessary ancillary powers in relation to the investigation and prosecution of the trafficking offence include section 6 which provides Garda powers to search vehicles and persons in vehicles; section 7 which provides for Garda powers of entry, search and seizure; section 8 which ensures that the offence of immigrant trafficking will be covered by the provisions of the Bail Act; and section 11 dealing with offences by bodies corporate.
I emphasise that the measures which I am proposing in this Bill are but one aspect of an overall strategy which the Government has adopted. This strategy leans heavily towards ensuring that our obligations under national and international law in relation to asylum seekers are fully met but it must also be underpinned by measures to ensure that our systems are efficient, effective and not open to abuse.
The proposed changes to the deportation procedures set out in the Immigration Act, 1999, which are provided for in section 10 have been developed in light of the experience of almost 12 months of the operation of that Act. That experience demonstrates a pressing need to refine the deportation process to make it more effective. It would be helpful to Senators if I gave a brief overview of how things have operated to date. Under the Immigration Act, 1999, each person, with some narrowly defined exceptions, in respect of whom deportation is being considered is informed of that fact and invited to make representations in writing within 15 working days. A total of 1,394 notifications of this type have issued to date. The bulk, not all, of the notifications have been sent to failed asylum seekers, people whose claim for asylum have been rejected on appeal or have been turned down in the first instance and not appealed. Of the number invited to make representations as to why a deportation order should not be made, 847 people, or 60%, did not make any. In almost half of those cases the invitations to make representations, which had all been sent by registered post, were returned as undelivered. Some 532 people availed of the opportunity to make representations and 15 people either consented to deportation or left voluntarily.
Once a deportation order has been made following consideration of the case by reference to the criteria set out in the 1999 Act and taking into account any representations made, the deportee is notified of the making of the order and instructed to report to a named Garda station at a specified time for the purpose of deportation. To date, I have made 399 deportation orders. Of that number, arrangements for removal have been made in respect of 233 persons. There have been supervised departures of 31 people and a further seven people left the State before deportation could be effected. In another 73 cases the deportation order cannot be executed pending the hearing of judicial review proceedings initiated by the deportees. In a further 14 cases, the deportation orders have been revoked, mainly on the advice of the Attorney General's office. Technical difficulties of various kinds, such as the need to obtain proper travel documentation, have held up the departure of the deportee in 49 cases. A further eight deportations are currently being arranged. In the remaining 98 cases – approximately 72% of cases – excluding the judicial review cases or cases where the order has been revoked, where arrangements for deportation had been made, the deportees have in each case chosen to flout the requirement to turn up at the named Garda station at the appointed time. In a further 119 cases removal cannot be effected because the persons are not at their last known address.
One may speculate that a proportion of those who have disappeared from the system at the various stages along the way may have already left the country for unknown destinations. In relation to the 3,000 or so asylum applicants who have abandoned their applications and who are no longer in the social welfare system, that speculation may have a strong basis. It is also possible that some of those who have not availed of the invitation to make representations as to why they should not be deported or who have failed to comply with the requirements of a deportation order when made may have assumed fresh identities and reapplied for asylum, thus getting back into the social welfare system or are otherwise still in the State and making a living by working illegally.
There are provisions in the Refugee Act for fingerprinting asylum seekers and those provisions – which are soon to come into operation along with the rest of that Act – will help in the identification of those who seek to flout the system. The provisions are of a kind which permit bilateral exchanges of fingerprint information with other EU states. I have already entered into such arrangements on behalf of the State with the UK and I am concluding arrangements with France.
The figures demonstrate the need to ensure that the deportation process is adapted so as to make the requirement to leave the State realistically enforceable. Where a person fails to comply or there are reasonable grounds for suspecting that he or she will not comply with the requirements of a deportation order made after due process, including an opportunity for the person to make representations as to why it should not have been made, then the power must be there to ensure that the order is obeyed. I have accordingly brought forward the proposals in section 10 of the Bill to strengthen the deportation provisions of the Immigration Act, 1999, in order to secure a greater proportion of supervised departures of deportees than occurs under present law.
Paragraph (a)(i) of the section inserts in section 3 of the Immigration Act the general statement of principle that a person who is the subject of a deportation order is liable to detention in accordance with the provisions of the Act and that this detention is for the purpose of ensuring his or her deportation from the State. This makes it clear that the Minister's executive powers in these matters, which have been long recognised by the courts, are to be exercised in line with the policy, procedures and limitations set out in the Act.
Paragraph (a)(ii) of section 10 replaces the existing section 3(9)(a) of the Immigration Act with a much expanded version, setting out in a lot more detail the sort of practical arrangements that can be made to ensure the successful supervised departure of the deportee. Under the present section 3(9)(a), which sets out the content of the notice of the making of the deportation order, the only requirement that can be made is that the person concerned present himself or herself to an immigration officer or garda at a specific date, time and place for the purpose of his or her deportation.
The amendment restates that requirement at subparagraph (a)(i)(l) of the amended section 3(9)(a). Along with that, the other sub-subparagraphs provide for a number of additional practical requirements that can be included in the notice, such as the production of any travel documents, passports, tickets or other documents required for deportation purposes that the person may pos sess; co-operation with a garda or immigration officer to obtain travel documents; the requirement to reside in a particular area or address in the State while arrangements are being made – this provision can be necessary where, for instance, there is likely to be a delay in obtaining a passport for the person from the country of origin; a requirement to report periodically to a specified Garda station or an immigration officer – this is designed to ensure that the person will continue to be available for removal once the arrangements are finalised; and the requirement to notify a garda or immigration officer as soon as possible of any change of address.
Paragraph (a)(ii) of the amended section of the Act enables a garda or immigration officer, for the purpose of the deportation of the person concerned, to make a further requirement or requirements of the kind set out in subparagraph (i). This is to cater for the situation where a deportee reports as requested to a Garda station for the purpose of deportation, but some impediment emerges which make immediate removal impossible for the time being.
These are all very practical measures designed to minimise delays due to necessary administrative work, to ensure that the deportee can remain in his or her regular accommodation while awaiting the finalisation of the arrangements and to facilitate the return of the person as soon as that can be done. Any additional requirement must, like those in the notice of the making of the deportation order itself, be in writing, with a copy in a language that the person understands where this is necessary. Our experience to date shows that some combination of these requirements is likely to be necessary in each case to ensure that the deportee remains available for removal from the State on foot of the deportation order. Which requirement or combination of requirements should be applied in particular cases is a matter for decision in the circumstances of each case.
Section 10(b) makes changes to section 5(1) of the Immigration Act dealing with the detention of a deportee. The existing section 5(1) provides that where a Garda or immigration officer with reasonable cause suspects that the deportee has failed to comply with any provision of the order or with a requirement in a notice of the making of the deportation order, the deportee may be arrested without warrant and detained. This detention is of course with a view to ensuring the deportation.
Section 10 expands the grounds on which arrest and detention of a non-compliant deportee may arise. The present ground for detention is restated by way of paragraph (a) of the new section 5(1) of the 1999 Act. The additional grounds for detention are to be where a Garda or immigration officer, with reasonable cause, suspects that the deportee intends to leave the State and without lawful authority enter another state, in effect to abuse the common travel area arrangements between here and the United Kingdom – that appears at paragraph (b); the deportee has destroyed his or her identity documents or is in possession of forged identity documents – that appears at paragraph (c); or the deportee intends to avoid removal from the State – that appears at paragraph (d). Any detention under this provision is of course subject to the conditions and safeguards set out in the remaining subsections of section 5 of the 1999 Act. These deal with placement in a mode of transport about to depart, proper accommodation during the journey, the non-applicability of detention to persons under 18 years, provision for review by the court of a detention where the deportation is under court challenge and the overall limit on the period of detention in any case. I underline again the explicit provision that detention under the 1999 Act, as spelt out in this amendment, is for the purpose of ensuring the deportee's removal from the State and for no other purpose.
Section 6 of the Immigration Act, 1999, as it stands, allows for service of notices either personally or by registered or recorded post. This can only work properly, however, where notice is sent to and received by the person at the address which that person has most recently supplied. The present provisions of Article 11 of the Aliens Order, 1946, and new section 9(4A) of the Refugee Act, which is being inserted by section 9(a), place a responsibility on the individual concerned to ensure that the appropriate authorities are kept abreast of that person's up-to-date address. This is essential to the serving of notices. It is open at present to an asylum seeker, a deportee or a potential deportee to try to delay or frustrate the process by avoiding acceptance of the notice, either by moving without telling the authorities or by simply refusing to accept registered post from the postman. In order to ensure that the process cannot be evaded in this way, section 10(c) modifies section 6 of the 1999 Act to provide that the person concerned will be deemed to have received the notice three days after that notice has been sent by registered post or any other form of recorded delivery to the last address provided to the immigration or asylum authorities.
I am satisfied, having consulted the Attorney General's office, that the modifications to the Immigration Act, 1999, provided for in section 10 are justified in the light of our experience of the practical operation of the Immigration Act to date. They allow for a common sense degree of flexibility in their operation, while remaining consistent with our human rights obligations under both the Constitution and international instruments to which Ireland subscribes. In particular, they are in line with the provisions of the European Convention on Human Rights, which at Article 5.l.f specifically envisages the necessity of detention in contemplation of deportation of a person, subject always to the existence of proper conditions and safeguards. In conjunction with the recently announced establishment by the Garda authorities of the National Immigration Bureau and the assignment of additional resources to immigration matters generally, I am confident of achieving my aim to increase the proportion of supervised departures from the State of those who after due process are no longer entitled to be in the State.
One of the features of our constitutional system of justice is the system whereby the High Court has power to review the administrative actions of public and private bodies. The judicial review system, although of long standing in Irish law, is not based on or regulated in any general way by a primary statute. The procedures and some of the principles governing the invocation of this jurisdiction of the High Court are set out in Order 84 of the Rules of the Superior Courts, 1996, but there are no rules which are specific to immigration or asylum matters. The purpose of section 5 is to enshrine into primary legislation, for the first time, a code of law governing this essential element of our legal system as it applies in the case of a wide range of immigration and asylum matters.
It would be useful for Senators if, before I get to the detail of the provisions in the section itself, I set out the legal context in which this proposal is brought forward. Some general points are worth making as a preliminary. Judicial review is the process whereby a person affected by a decision who considers that there was a procedural defect in arriving at it may ask the High Court to review that procedure. Judicial review is not an appeal against the substantive decision as such, and a successful application for judicial review, as well as quashing the decision reviewed, may result in the matter being referred back to the decision-maker. The court determining the review will not normally substitute its own decision on the substance for that of the decision-maker.
Judicial review historically owes its roots to the common law, but in Ireland has been given added backing by Article 34.3.1º of the Constitution. That article invests the High Court with "full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil and criminal". Thus legislation which sought to exclude matters from the scope of judicial review would be probably struck down as inconsistent with that article.
Current procedures generally for judicial review are, as I have said, set out in Order 84 of the Rules of the Superior Courts, 1996. Some statutes provide exceptionally for particular variations on the procedure in particular types of case, and I will touch on these later. This order of the 1996 Rules of Court substantially implements the recommendations of the Law Reform Commission in a working paper on judicial review – No. 8 1979 – a paper which characterised the system of judicial review remedies as having "two outstanding merits – comprehensiveness and effectiveness".
Judicial review proceedings are instituted by the making of an application to the High Court for leave to seek judicial review, ex parte, that is, without notice to the other interested parties, except in certain cases, and supported by a statement of grounds and by affidavits setting out the relevant facts. The applicant must satisfy the court in a prima facie manner of the following: that he or she has sufficient interest in the matter to which the application relates; that the facts averred in the supporting affidavits would, if true, be sufficient grounds for a stateable case for judicial review; that on the facts there is an arguable case in law for the relief sought; that the application is made promptly and within the time limit, which is normally three months, or the court is satisfied that there is good reason for an extension and that the relief sought is the only or most effective remedy available to the applicant on the basis of the facts averred. These criteria were identified by Chief Justice Finlay in the leading case of G v. DPP in 1994. While that was obviously a criminal case, the principles applying to judicial review apply across the board.
A decision to grant or refuse leave to seek judicial review is, it appears, appealable to the Supreme Court except where statute otherwise precludes it. As I mentioned, the normal time limit for applying for leave to seek judicial review is three months from the matter giving rise to the application. That period is six months in the case of an application for certiorari, an order overturning a decision granted in excess of jurisdiction. There is a discretion to extend the time further where the High Court is of the view that there is good reason.
Special time limits are provided for by statute in certain circumstances. Thus, for instance, legislation of 1963 dealing with planning approvals and permissions and 1993 roads legislation, covering motorway schemes and roads-related environmental impact assessments, provide that application for judicial review of a decision must be made within two months of the decision being made, with the possibility of an extension of time being granted. In the case of 1997 legislation dealing with the Irish Takeover Panel, there is a provision confining to seven days the time within which a rule made by the panel relating to a takeover may be judicially reviewed.
This is the general procedural background against which the proposal in section 5 falls to be considered. The proposal will provide in primary legislation a set of procedures for judicial review tailored to the specific needs of cases in the immigration and asylum areas of operation. The aim is to achieve a balanced situation where those who have a substantial case that proper procedures were not followed in an immigration or asylum matter will have a defined statutory framework within which to have that question determined by the High Court, while the normal processes will not be delayed by the institution of court proceedings by those who do not have a substantial case which would justify such delay.
Section 5 of the Bill achieves these aims by setting up a statutory procedure for judicial review of immigration and asylum matters with the fol lowing principal features. Section 5(1) lists the various types of processes to which the new procedures apply. Paragraphs (a), (b) and (c) cover the steps in the deportation process set out in the Immigration Act, 1999, which can arise in relation to any person liable to be deported, be that person a failed asylum seeker or someone whose deportation is being considered on one of the many other grounds for deportation set out in the 1999 Act. Paragraph (d) covers the refusal of leave to enter the State under the provisions of the Aliens (Amendment) (No 2) Order, 1999. Paragraph (e) deals with exclusion orders made by the Minister in relation to notorious international war criminals or the like, and paragraphs (f) to (n) cover steps taken in the asylum process, including the consideration of applications under the Dublin Convention, whether under the present administrative processes or under the statutory arrangements about to come into effect with the commencement of the Refugee Act.
Paragraph 5(2)(a) addresses the time within which an application for judicial review must be made in these types of case. The limit specified is 14 days, which reflects the reality of the situation in immigration and asylum cases. The time limits in most cases between steps in the asylum and immigration processes are of short duration. This is necessary given the nature of these cases. Many of these limits are set in statute and must be adhered to. There would be little logic in setting longer limits for judicial review purposes where the decision must be executed or the next step carried out in a much shorter period. The paragraph provides that the period of 14 days can be extended where the High Court determines there is good and sufficient reason to do so. This compares with the general current provisions for judicial review in rules of court which require that an application for leave to seek judicial review must be made promptly and allows the High Court to extend the outside limits set in the rules.
Paragraph (b) provides that the Minister will be put on notice of applications for leave to seek judicial review in immigration and asylum cases. Unlike at present, the Minister will have the opportunity to be a party to proceedings from the very beginning and will thus have an opportunity as respondent to offer argument and facts at an early stage on the question of whether the application is based on substantial grounds. The High Court will have the power to refuse an application in those circumstances. This contrasts with the general position under the rules of court where an applicant for judicial review generally applies ex parte, that is without notice to the other side, and need only show there is an arguable case that the act which is the subject of the intended review was improperly carried out. While those with a substantial case to make will have full opportunity to make it, I am concerned to avoid a recurrence of the situation which has been experienced in a number of cases in recent years, where court proceedings have resulted in delays of over two years in circumstances where, had the court had the opportunity of hearing preliminary argument and facts from both sides instead of just one side, it could have decided early on that there was no substance in the case.
Section 5(3) provides that the determination of the High Court will be final in these cases and no appeal shall lie to the Supreme Court except on a point of law of exceptional public importance and that an appeal is desirable in the public interest. Thus, having heard the preliminary arguments and presentation of the facts, if the High Court decides that the judicial review application should proceed to a full hearing, the Minister will not be able to appeal that decision to the Supreme Court unless the High Court is satisfied there is an exceptionally important point of law involved. If there is an issue as to the constitutionality of a law, the possibility of an appeal to the Supreme Court cannot be excluded. This is catered for in Article 34.4.4º of the Constitution and in paragraph (b) of the subsection. Sections 5(4) and 5(5) are designed to ensure that the High Court will deal with these types of case as expeditiously as possible, consistent with the administration of justice.
Section 5 sets out a system which provides for a coherent, fair and expeditious means of dealing with judicial review applications in the asylum and immigration area. Delay in such cases can result in a situation where even though the court finds the Minister's actions in, for example, making a deportation order were proper and lawful, the execution of that order cannot take place because of a change in the circumstances occasioned by the delay. Nor should the High Court's valuable time be taken up with applications which can be disposed of at an early stage in the judicial process where the necessary procedures can be put in place to allow for this. These proposals will ensure that where all due procedures have resulted in a determination that there is no basis for a non-national's continued stay in the State, the judicial review process cannot be used to delay that person's departure if no substantial case can be made which would warrant a postponement.
The proposals contain safeguards to ensure that those with a substantial case to make have full opportunity to make it. It must be remembered that the judicial review process is not an appeal from the decision in question but is a means of testing whether the procedures leading to the decision were proper. My concern is to ensure that a person who no longer has good reason to remain in the State cannot prolong that stay by relying on the delays inherent in the institution of High Court proceedings, unless there is a reasonable case to be made for that prolongation. We must also remember that the experience of actual cases in these areas is that the decision to seek leave for judicial review usually arises only after all the normal procedures have been exhausted – procedures which, in the case of an asylum seeker, have involved State- funded legal aid and interpreter facilities at every step.
These proposals have been developed in consultation with the Attorney General. They are fair, constitutional, consistent with the principles of natural justice and in compliance with Ireland's international obligations in the human rights sphere. They offer a statutory guarantee to those in the immigration and asylum processes of the opportunity to have the courts review any step in those processes where there is a substantial basis for doing so.
I draw the attention of Senators to section 9 of the Bill which makes some amendments to the Refugee Act, 1996. Apart from the proposal in paragraph (a) of the section, which I have already discussed, these amendments are purely technical in nature, but nonetheless essential to the proper operation of that Act when fully commenced. It is my intention to proceed with commencement of the Refugee Act in full on the enactment of the Bill, and publication very shortly of the detailed secondary legislation necessary for the smooth operation of the Refugee Act. The selection process for the first Refugee Applications Commissioner is already complete. The competition for the appointment of a chairperson to the Refugee Appeals Tribunal is well under way under the aegis of the Civil Service Commission.
I commend this necessary legislation to the House. The Bill updates our laws in many ways for practical and pragmatic reasons to ensure that our procedures are streamlined. The Bill also takes account of modern society and will ensure reasonableness, fairness, openness and transparency throughout the process.
