I am delighted to have the opportunity to debate this important Bill in the Seanad. The Bill before the House is designed to ensure, to the greatest extent possible, that when people arrive in the State, from places other than the common travel area with the United Kingdom, they have valid travel documents with them. The Bill also contains some amendments to the Refugee Act, 1996, the need for which emerges from the experience gained from operating the Act since I commenced it in full in November 2000. The Bill, in creating a statutory obligation on carriers to make sure that their passengers have proper documents, is one part of the strategy to deal with the problem of improperly documented arrivals. The other element is the process of ongoing contact and advice that is already in place between the Irish immigration authorities and carriers to assist them in fulfilling their obligations.
Ireland, in common with all other states throughout the world, operates immigration controls on persons arriving from abroad. These controls are there to protect and safeguard the interests of Irish society and of the individuals, regardless of whether they are citizens of Ireland, who make up that society. It is to the benefit of everyone that our immigration controls operate not only effectively, but also efficiently. The travelling public do not want to experience undue delay at immigration before being able to go about their business in the country. Carriers can do without the hassle of having to bring back their passengers who have been refused admission to the State because they do not meet immigration requirements. The interest of the immigration authorities themselves, in ensuring to the greatest extent possible that only those who are in compliance with the requirements of Irish law arrive in the State, is self-evident. It is for these reasons that states operate visa and other pre-clearance and carrier liability systems. That is why Ireland is now joining its fellow members of the European Union with the proposals in this Bill.
I wish to place the Bill in its context as part of the Government's approach to matters pertaining to migration and asylum matters. The Govern ment's period in office has seen changes in the migration environment of Ireland that are without precedent in the history of the State. There has always been some element of inward migration to this island; sadly, for much of our history as an independent nation, the pattern that has prevailed has been one of extensive net outward migration. That pattern established itself firmly in the famine years of the 19th century and was dictated largely by economic pressures. All that changed in the middle of the last decade. In my time in office, we have seen burgeoning expansion of inward migration to Ireland. Our economy has expanded and developed, due in no small measure to the policies adopted by the Government, as well as the sensible approach of the social partners in successive agreements affecting how we manage our economy.
Ireland has developed into an attractive place, one where people from abroad can see opportunities to share in and contribute to our economic growth – just as our predecessors through many generations saw opportunities during the last two centuries in far-flung, young and vibrant countries like Canada, the United States and Australia. Regular migration to Ireland in recent years has been at its highest level ever thanks to the enlightened approach the Government has taken to migration policy, which is recognised as one of the most liberal in Europe. According to figures from the Central Statistics Office, immigration to Ireland has been averaging almost 45,000 people a year over the past five years, with outward movements estimated at around 24,000 a year. This indicates an estimated average net inward migration of over 20,000 people a year.
Analysis of the figures demonstrates the upsurge in returning Irish migrants and people from within the European economic area who are coming to Ireland to make their living. Ireland's attractions as a place for people's future are recognised further afield as well. In 1999, my colleague, the Tánaiste and Minister for Enterprise, Trade and Employment, issued a record 6,000 work permits to people from outside the European economic area, EEA. The following year that figure trebled and in 2002 doubled again to the phenomenal figure of 36,000 work permits – a total in the three most recent years of 60,000 work permit holders migrating to Ireland for economic reasons, observing our normal immigration requirements and being made welcome in their places of employment and their new communities.
Along with this increase in regular migration, we have experienced what many other developed countries of the Western world had already undergone in the previous decade or so, a growth in illegal migration and in the international business of facilitating those who, for one reason or another, feel that they cannot avail of the legal means of entering and settling in their chosen countries of destination. The international experience has been that a significant feature of this trend is the increase in the number of people seeking protection in destination countries on foot of claims of persecution in their home countries and Ireland has been no exception to that trend. This observation should not be interpreted as implying an assumption on my part that all asylum claims are motivated by reasons other than fear of persecution because the Irish asylum process is based on the principle that no assumptions are made about particular applications until they have been examined. It is simply a reflection of the experience internationally, an experience mirrored on the domestic scene.
Ireland has been a party to the 1951 Convention on the Status of Refugees since 1956. However, when I took office I found only a rudimentary and under-resourced system for investigating and determining such claims. A recently enacted Refugee Act could not be implemented because it was not capable of catering for the volume of claims being received or of dealing with the growing backlog.
Let me remind Senators of the actions I have taken in the sphere of immigration and asylum since taking office. I put in place a new administrative arrangement, known colloquially as the Hope Hanlan procedure after the UNHCR representative with whom they were agreed, and secured new staff and new premises in order to establish the human rights of those who had claimed and were claiming asylum in Ireland.
I brought forward the legislation that became the Immigration Act, 1999, which had the vital effects of amending the Refugee Act, 1996 – necessary to make it work – and filling the lacuna left in the wake of the court decision on the constitutionality of certain aspects of immigration law. Not long after I took office, an essential element of this law was found to be incompatible with the Constitution. I organised the establishment and funding of the Refugee Legal Service, under the aegis of the Legal Aid Board, to assist claimants with their asylum claims.
I ensured the Garda Commissioner was able to establish the Garda national immigration bureau to cater for the demands placed on the Garda Síochána by the increase in regular migration to the State and the related, though lesser, growth in irregular migration. I put in place the logistical, statutory and administrative arrangements which were the essential precursors to the Refugee Act and the establishment of the two independent bodies under the Act whose job it is to investigate all asylum claims and recommend decisions to me.
I brought forward legislation to criminalise trafficking in human beings and streamline procedures for the judicial review of steps taken in the asylum and immigration processes, which constitute an expanding area of court business. In close co-operation with the Minister for Enterprise, Trade and Employment, enhanced arrangements were put in place to ease the processing of work permits and related visas to allow economic migrants to enter the Irish workforce. I have facilitated a range of measures, in particular the "kNOw RACISM" campaign, to ensure the seeds of racism and xenophobia, which sadly exist to some extent in Irish society, do not flourish in order that all who come to our shores, for whatever reason, will be treated with dignity and fairness.
There is more. As well as bringing forward the current Bill, I have laid the groundwork for a root and branch restatement of immigration law. Senators will be aware of the public consultation process I conducted last year and now that all the expected responses are finally in, my Department is preparing a synopsis, which I expect to release soon.
The interdepartmental team on immigration matters, which I also established last year, has, among other matters, been monitoring a consultancy project in which the International Organisation for Migration is drawing together research on best migration practice in many jurisdictions worldwide. I expect to be publishing the team's work in the reasonably near future. This work, coupled with the internal review of immigration operations under way in my Department, is informing the development of a comprehensive new law on immigration and residence in Ireland, as well as the ongoing development of policy in this area. What I have in mind is for the new law to provide a modern legislative framework for the development and implementation of the policies needed to meet the evolving needs of society with procedures to cater for the rights and expectations of those who come into contact with the immigration process.
The Bill is a step towards that comprehensive measure and is needed now to deal with the scenario we face. In the year 2000 – the most recent year for which figures are available to me – a total of 5,852 persons were refused leave to land on arrival in the State. Of those, 2,735 – almost one in every two refusals – occurred because the person concerned did not have a proper passport. A further 1,397 were refused because, although they should have had visas, they did not. In other words, three quarters of those refused leave to land in the year 2000 were not in possession of proper travel documents. I have no reason to believe that the figures for 2001, when available, will portray a different picture. There is a clear need to address the issue and a ready means by which it has been successfully addressed in other jurisdictions. That means is the carrier liability system which the Bill contains provisions to establish in law.
I now turn to the provisions of the Bill. Section 2 is at the core of its carrier liability provisions, setting out the obligations that will be placed on a carrier whose vehicle brings persons to the State. A "carrier" is defined in section 1 as the owner of a vehicle or, in relation to a vehicle other than an aircraft, the person in charge of it. This definition encompasses ferry and other shipping companies and the captains of vessels. It includes airlines, but not the captains of aircraft, who are in a different legal position to the captains of seagoing craft. As well as these, the definition covers the owners and operators of road vehicles such as buses, coaches, cars and lorries.
Under subsection (1) of section 2, where a vehicle arrives in the State from outside Great Britain or Northern Ireland, the carrier is subject to a number of requirements. Under paragraph (a), the carrier must ensure everyone in the vehicle who wishes to land disembarks in compliance with any directions given by an immigration officer. Paragraph (b) requires that everyone on board who wishes to land is presented to an immigration officer while paragraph (c) requires that each non-national passenger who disembarks has the appropriate travel documents with him or her.
Every non-national should have a valid passport which must be current and relate to the bearer. For an EU national, the identity card issued to citizens by many member states meets this requirement. The nationals of certain non-EU countries require, in addition to a passport, a visa of one of two types – depending on their nationality and whether they want to visit the country or merely transit through a seaport or, more usually, an airport. The categories of non-nationals who do not require a visa to enter Ireland are currently set out in the Aliens (Visas) (No. 2) Order, 2001. Anyone not included in the categories there set out needs a visa. The order also lists the countries whose nationals must be in possession of a transit visa if they wish to make a journey which involves transiting through an Irish port, as distinct from entering the country.
The first two elements of subsection (1) give statutory weight to the normal co-operation with the immigration authorities that most carriers at present offer as a matter of routine business practice when disembarking their passengers. The last element, at paragraph (c) of the subsection, has the effect of requiring carriers to do in respect of journeys into Ireland what they already must with regard to journeys in the other direction. This will entail having in place systems to check the documents of passengers at embarkation. Carrier companies are no strangers to the business of checking travel documentation. All other EU member states, and most other countries to which carriers operate routes out of Ireland, already have in place legal arrangements of the type I am bringing forward in this section. When a person boards an aeroplane in Dublin bound for the Continent, or boards a vessel in Rosslare bound for France, his or her carrier company is already making the document checks at this end of the journey which are necessary to ensure both he or she and it comply with the immigration law of the destination country. The proposal before us means that those document checks will also be done as one boards for one's return journey to Ireland. Many carriers – both airlines and ferry companies – already routinely conduct pre-boarding document checks on all passengers, even where there is no immi gration requirement to do so. They consider it necessary for their own security reasons and in the interests of the safety of their passengers, particularly in the aftermath of the terrorist attacks of 11 September in the USA.
In the discussions my officials have had and continue to have with various groups of carriers in the course of preparing the Bill and waiting for its provisions to come into effect there has been a general recognition that carrier liability provisions are now the norm internationally. There is also a general welcome from carrier interests for the assurances of continuing co-operation between my Department's staff and the Garda national immigration bureau in helping them to meet their obligations under this proposal. They are particularly welcome regarding their obligations in terms of passenger documentation. None of these obligations is likely to prove unduly onerous to the bona fide carrier. I want the business of meeting these obligations to work smoothly and effectively.
Senators will note that the provisions of subsection (1) apply only to arrivals from outside the common travel area operating between Ireland and the United Kingdom. A significant part of the CTA arrangements is that citizens of the two states can travel freely between the two jurisdictions without any passport requirement. We do not operate systematic immigration checks on arrivals from the United Kingdom and, in the circumstances, it would scarcely be reasonable for the law to put carriers in the position of having to carry out checks on their passengers which go far beyond what the Irish immigration authorities themselves do. Accordingly, the obligations in subsection (1) apply only to non-CTA arrivals.
Section 2(3), by contrast, sets out an obligation which applies to all arrivals, including from the CTA. It enables an immigration officer to request the carrier in such a case to produce a list of the names and nationality of the persons carried and details of crew members. This is a useful control measure, based on a current provision in the Aliens Order, 1946, and will enable immigration officers, where they consider it necessary, to gather important information about clandestine entry into the State from whatever source.
Section 2(5) and (6) provide specific defences to charges of failing to meet obligations under the section. The first of these, available in relation to any of the offences, protects a carrier from conviction where it can be shown that all such steps as were reasonably open were taken to ensure compliance with the obligations. Thus, a carrier who has proper procedures in place at the point of embarkation for the checking of documents and can show that those procedures were operated properly in the particular case, would be able to invoke this defence. The defences provided for in subsection (6) apply where the offence is under subsection (1)(c), that is, where a non-national passenger did not have proper documentation, and arise where the carrier can show either that the non-national concerned had the relevant documentation at the point of embarkation, subsection (6)(a) or, at paragraph (b), that the carrier did not know and had no reasonable grounds for suspecting that the document was invalid – for example, if the falsification technique used in the document in question was not a particularly easy one to spot.
The provision of these defences ensures balance in the operation of these proposals when enacted. They are based on our experience and the experiences of other member states of the reality of document fraud. Typical instances include the disposal of genuine documents during the journey after they have been used to get the passenger on board. We are aware of instances where the same documents will be used over and over again to secure boarding for different passengers, presumably having been retrieved by the smuggler providing the service to the passengers in question. We are also aware that some high quality forgeries and falsification methods, including photo substitutions, are in use which might only be detected by an expert, often only after recourse to sophisticated equipment. Carriers are not expected to operate document checks to an unreasonably high level of sophistication and are not expected to give absolute guarantees as to the possession by their passengers of proper documentation on arrival in the State.
Section 2(8) is an important provision covering the drawing up and publication of guidelines for carriers to ensure compliance with their obligations under the Bill. In anticipation of the measures in the Bill, my officials, together with officials from the Department of Public Enterprise and representatives of the Garda national immigration bureau, met with the Irish Road Haulage Association in a series of negotiations which resulted in what both I and the haulage association believe to be an effective set of guidelines for its members, addressing the question of clandestine passengers on board their vehicles. We both recognise the vulnerability of international hauliers as targets for smugglers who have no scruples about how they transport their often unfortunate human cargo.
The guidelines, which have been adopted already by the association, are aimed at providing a checklist for long distance lorry operators so that they can minimise the scope of their vehicles being used for this clandestine trade. Observance by a haulier of these guidelines will have two effects. In practical terms it will help to protect them and their cargo from the activities of human smugglers and, as far as this new law is concerned, it will go towards assisting them in dealing with any prosecution that might arise in the event that covert passengers succeed in boarding their vehicles unknown to them, on the basis of the "all reasonable steps" defence in subsection (5). I commend the mature approach of the Irish Road Haulage Association to this matter and I see this type of consultation with particular interests involved in international carriage as a model for further such guidelines with other sectors.
We have deliberately kept the guidelines provision in section 2(8) separate from the standard regulation making power in section 6 of the Bill. This is because guidelines of their nature must have a reasonable element of flexibility, a flexibility which might not be available if the style of language and rules of statutory interpretation necessarily associated with regulations, which are statutory instruments, were to be employed in drawing up guidelines under section 2(8).
Failure to meet any of the obligations set out in section 2 is an offence, punishable on summary conviction by a fine of €3,000. However, section 3 provides a means, similar to the system at present in relation to parking offences, where the carrier can avoid court proceedings by payment of a fixed penalty, in this case €1,500, within 28 days of receiving the notice of intention to prosecute. Section 4 is a standard provision regarding the responsibility of officers of a body corporate for offences committed by the body.
I turn now to the amendments to the Refugee Act, 1996, which are provided for in section 5 of the Bill. These amendments arise out of the ongoing review of the operation of that Act. That continuous process involves my Department and the two independent bodies set up under the Act, the office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal, co-operating to ensure that the procedures under the Act achieve in an efficient way my policy aim and that of Government in relation to asylum. That policy is to ensure that anyone arriving in the State who is genuinely in need of the protection of the State is identified as such as soon as possible after they arrive so that they can immediately start the process of integration into Irish society and take up the rights to which they are entitled under the 1951 Convention on the Status of Refugees. The necessary corollary to that policy is to safeguard the internationally recognised concept of refugee status and of our domestic asylum systems and protect them against abuse.
The proposals at present in section 5 of the Bill relate to two aspects of the Refugee Act: the role of the Refugee Appeals Tribunal and the question of protecting the identity of asylum seekers. I propose, in paragraph (a) of the Bill, to ensure that the important role of the tribunal is acknowledged by giving the chairperson of the tribunal an ex officio place on the refugee advisory board. The board, which is envisaged by section 7A of the Act, a provision inserted at my initiative as part of the amendments of 1999, is designed to draw together the various interests in the business of catering to the needs of asylum seekers and of refugees so as to monitor the operation of the Act and of other aspects of the lives of asylum seekers in the State.
The Refugee Applications Commissioner's role in relation to the board is already specified in the legislation. Her function as an ex officio member is to act as secretary to the board. It makes sense, also, to have the chairperson of the other key independent body involved in the asylum process as an ex officio member. One of the functions of the proposed board, as set out in section 7A, is the preparation of a report every two years on the operation of the Act in the previous two years, with the first report to be in 2001. Since the Act itself did not commence in full until 20 November of that year, it would not have been possible to meet that statutory requirement, so paragraph (a)(i) of the Bill proposes to move the date for that requirement to 2003. I expect to announce the full membership of the board in the near future, once the provisions before us become law.
Another matter related to the operation of the Refugee Appeals Tribunal, which is not covered in the Refugee Act at present, is the preparation and submission of an annual report. That matter is addressed by section 5(c) of the Bill. I take this opportunity to commend both the Refugee Applications Commissioner and the chair of the Refugee Appeals Tribunal and their staffs for their excellent work in dealing with asylum cases as part of my overall asylum strategy. Following the investment of significant additional resources by the Government in the asylum process, I am pleased to inform the House that, since July last year, scheduling and processing of asylum applications has significantly exceeded monthly intake and, by June 2002, I expect the commissioner's office will, in the main, be dealing with applications which were made in 2002.
The Bill also proposes, in section 5(b), to amend section 19 of the Refugee Act to remove the requirement of the Minister's consent where an asylum seeker himself or herself consents to be identified as such in the media. This change has been pressed for by many media interests, including some who have represented the current situation as being a ministerial veto on any coverage of asylum matters. It is nothing of the sort, but I am satisfied that the protection of the privacy of individual asylum seekers is sufficiently achieved without the additional requirement of ministerial consent, which only serves to create an administrative burden without a corresponding benefit in any significant additional protection of the individual applicant's interests. The advance consent of individual asylum seekers will continue to be required and journalists should be ever vigilant to ensure that irresponsible disclosure of asylum seekers' identities, even with their consent, will not jeopardise the lives of the applicant or of any family or other connections in the country of origin.
Senators may note that I referred a moment ago to proposals which are "at present" in section 5. That is because I am considering bringing forward, by way of Committee Stage amendments to the Bill and subject to Government approval, further amendments to the Refugee Act, 1996, and also to the Immigration Act, 1999. I already referred to the ongoing review of operations in these areas with a view to ensuring optimum efficiency in the delivery of services to non-nationals. I expect the matters to be covered by Committee Stage amendments will include a more efficient way of dealing with asylum applications that have been, in effect, abandoned by the applicant and will elaborate further on the role and functions of the Refugee Appeals Tribunal. It is also likely that some technical issues to do with general immigration law will be addressed by Committee Stage amendment.
I and the Government remain committed to honouring our humanitarian obligations under the range of international instruments to which Ireland is a party, including in the particular context of this Bill the 1951 Geneva Convention relating to the status of refugees and its related New York protocol of 1967. We also remain committed to the development, consistent with those international obligations, of an effective immigration framework which serves the interests of Irish society and of all who are part of that society. I commend the Bill to the House.