I had said all I wanted to say about this issue. A good night's rest may have convinced the Minister but unless he has had a change of heart, I do not intend to pursue this amendment. I take it that his silence is an indication that his position remains unchanged.
Illegal Immigrants (Trafficking) Bill, 1999: Committee Stage (Resumed).
SECTION 2.
Debate resumed on amendment No. 12:
In page 4, between lines 4 and 5, to insert the following subsection:
"(3) A common carrier shall not be deemed to have contravenedsubsection (1) solely by virtue of carrying a person who presents a document appearing to be a valid travel document or passport.”.
-(Deputy Howlin.)
Unbending and unyielding.
That is what I expected.
Amendment, by leave, withdrawn.
Question proposed: "That section 2, as amended, stand part of the Bill."
My general line of argument yesterday was that the responsibility of hauliers and carriers should be made very clear. I am somewhat concerned that there seems to be a lack of clarity on this issue. The Minister may wish to restate the principles as sharply as he can in order that carriers and hauliers would not be in any doubt about the burden which would be placed on them on foot of this section.
It may be helpful in light of what was said yesterday if I were to outline the type of situations which I envisage would or would not come within the scope of section 2. The likelihood of a carrier forming the necessary intent would, to a large extent, depend on the size of the operator in so far as size would have a bearing on the remoteness to or intimacy of the operator with his or her passengers. Let us take the example of a taxi driver who might be offered a high fare to take a non-national from Belfast to Mount Street in Dublin where the refugee centre is located. Common sense might suggest that such a driver would have reasonable cause to believe that the person concerned was an illegal immigrant or asylum seeker, namely, a person who was attempting to abuse the common travel area to transit the United Kingdom and enter the State without a passport. However, it would be open to the taxi driver in such a case to put forward the defence that he or she acted innocently and could not have known that asylum applications were made at Mount Street. A court might not accept this argument, particularly if it could be shown that the driver had taken similar fares from Belfast to Mount Street on more than one occasion.
If we then take the example of a bus owner or driver on a set route from Belfast to Dublin who sells tickets to passengers on embarkation. He or she takes passengers on board in an impersonal manner and drives them in an impersonal manner to a set destination on a set route. If drivers are expected to assess the status or nationality of passengers in that instance, people's ethnic appearance or dress should not, of themselves, be reasonable cause for drivers to believe they are illegal immigrants or asylum seekers. If, however, it became obvious that groups of non-nationals were being brought to the bus in an organised fashion, a reasonable suspicion might arise in that instance. If, on the other hand, a bus driver is asked by a trafficker to run a special bus from Belfast to Dublin, perhaps using minor roads, and is paid a sum of money, if all the passengers who turn up are clearly non-nationals, the driver might have reasonable cause to suspect the passengers are illegal immigrants.
Obviously the situation becomes more remote in relation to a large carrier or airline. If an airline has a policy, as most do, in accordance with recognised international practice, of insisting on passports or visas, as appropriate, before passengers are allowed on board a plane outside the common travel area, and if a passenger has no such documents, he or she will not be allowed to board. Guidelines to this effect would have been issued to the check-in staff and if one does not have a passport or visa, or the passport and visa is not valid, and the passenger is nevertheless allowed to board through negligence, no offence is committed because neither the clerk nor the company knowingly facilitated the entry of a person whom he or she knew and had reasonable cause to believe was an illegal immigrant or asylum seeker.
On the other hand, if the clerk accepted a bribe from the passenger to ignore the fact that he or she did not require documentation, it is reasonable to assume that the clerk had the necessary reasonable cause to believe and so on. If the clerk, for humanitarian reasons and not for gain, let the person through, although he or she should not have done so in accordance with company rules, neither the clerk nor the company commits an offence under the Bill.
One might ask what the situation would be if an airline decided to abandon the usual documentation checks. Again much would depend on the circumstances of the case. While failure to check documents would not in itself establish the necessary mens rea, the carrier would run the risk that the action could be construed as knowingly facilitating the entry into the State of a person whom he or she has reasonable cause to believe is an illegal immigrant or asylum seeker. Carrier’s liability relates to the documentation checks and is an offence of strict liability as opposed to one requiring mens rea. I hope this clarifies the matter.
From the explanations the Minister has given, it strikes me there will be very few prosecutions under this Act. It is a convoluted process to determine intent and prove a particular transaction has taken place. It seems there will not be many prosecutions in the context of the Bill because a lot of traffickers operate outside the State despite the anecdotal evidence provided by Deputies and others, which the Minister accepted yesterday. I have not seen evidence of organised trafficking. If Irish Ferries or Sealink disembark in the port of Rosslare 40 or 50 non-nationals who routinely march off the boat and declare themselves asylum seekers, given that there are no documentation checks in a common travel area between the United Kingdom and Ireland, will this section impact on their operation?
If they were coming in through the common travel area in this fashion, there is no way the company could be in a position to have reasonable cause to believe these people were asylum seekers or illegal immigrants. It is not correct to say there is not a considerable amount of trafficking taking place. Deputy Howlin accepts it is happening abroad and whether it is happening within the country is another matter. I gave examples yesterday of documentation the Garda had uncovered. People sometimes say to me that if it is true the majority of people arriving into the State are coming across the Border, why do I not put police checks on the Border. My answer is that no criminal offence is being committed by anyone if a taxi driver travels from Belfast to Dublin carrying people whom he knows to be illegal immigrants. There is no liability on him because it is not a criminal offence. This legislation makes it a criminal offence. I now have reason for checking the Border areas. That is a more concrete example of what I am speaking about.
Question put and agreed to.
NEW SECTION.
I move amendment No. 13:
In page 4, before section 3, to insert the following new section:
"3.-(1) Where a member of the Garda Síochána arrests a person for an offence under section 2 and a vehicle is suspected of having been used by the person for the purpose of committing or facilitating the commission of the offence, the member may detain the vehicle with its equipment, fittings and furnishings for a period not exceeding 48 hours.
(2) At any time before the expiry of the period referred to in subsection (1), on application to it in that behalf by a member of the Garda Síochána, the Court, if it is satisfied-
(a) that the person referred to in subsection (1) has been or is about to be charged with an offence under section 2,
(b) that there are reasonable grounds for believing that the vehicle is one which could on conviction on indictment of the person of that offence, and having regard to subsection (6) of section 3, be the subject of a forfeiture order under section 3, and
(c) that there are reasonable grounds for believing that the vehicle would be removed from the State or sold or otherwise disposed of before the determination of the proceedings for that offence,
may make an order authorising the further detention of the vehicle by the Garda Síochána for such period, not exceeding 3 months, as may be specified in the order.
(3) The Court may from time to time, if it is satisfied in relation to the matters referred to in paragraphs (a), (b) and (c) of subsection (2), on application to it in that behalf by a member of the Garda Síochána before the expiration of the period specified in an order under this section, make an order authorising the detention of the vehicle by the Garda Síochána for such further period not exceeding 3 months as may be specified in the order.
(4) A vehicle shall not be detained under this section for periods exceeding in total 2 years and the detention of a vehicle under this section shall cease if the proceedings concerned are summary or are discontinued or if the person concerned is acquitted of the charge concerned.
(5) At any time while a vehicle is being detained by virtue of this section, a person specified in paragraph (a), (b) or (c) of section 3(2) may apply to the Court for its release and the Court may-
(a) order the release of the vehicle unconditionally if it is satisfied that the matters referred to in subsection (2) no longer apply,
(b) on such security being given as it considers satisfactory, release the vehicle subject to the condition that it will be delivered up to the Garda Síochána if-
(i) the person concerned is convicted of the offence charged, and
(ii) an order for its forfeiture is made under section 3,
(c) order the release of the vehicle subject to such other conditions as it considers appropriate, including a condition that the vehicle is not removed from the State, sold or otherwise disposed of, pending the determination of the proceedings for the offence, or
(d) if the vehicle has been detained under this section and subsequently released on the giving of security under paragraph (b) and has been sold, destroyed or otherwise disposed of without the leave of the Court, order the forfeiture of the security.
(6) In this section 'Court' means-
(a) if the person concerned has not been charged with an offence under section 2 or if he or she has been so charged and proceedings for the offence have not commenced, the District Court, or
(b) if he or she has been so charged and the proceedings concerned have commenced, the court hearing the proceedings.”.
During my contribution on the Second Stage debate, I drew attention to the fact that the Bill contains in section 3 forfeiture provisions which are an important disincentive to those who might allow their vehicles to be used for the purposes of trafficking in illegal immigrants. I indicated that I was considering whether, because of the nature of international trafficking in people, it should not also be possible for a court to order the detention of vehicles where proceedings are contemplated which could lead to such forfeiture.
I have already indicated that I have reason to believe that traffickers are using private cars and taxis to bring to the State people who have no approval to come here. I instanced an example of this. Where a person is charged with a serious trafficking offence and there is a possibility that the court might order the confiscation of the vehicle used in the trafficking, there is a danger that the defendant might see to it that the vehicle is disposed of or taken out of the State before the proceedings are finalised. The purpose of this amendment is, therefore, to ensure that such vehicles are in fact available for forfeiture should a court so decide.
Subsection (1) provides that the Garda may detain a vehicle for a period of up to 48 hours if a person has been arrested in connection with a trafficking offence and the vehicle is suspected of having been used in committing or facilitating the commission of the offence. Subsection (2) provides that if a person has been or is about to be charged with an offence under section 2, a court may, on the application of the Garda, order the detention of the vehicle concerned for a further period of up to three months. The court must be satisfied that there are reasonable grounds for believing that a forfeiture order might be made following a conviction on indictment. The court must also be satisfied that there are reasonable grounds for believing that the vehicle might be removed from the State or sold or otherwise disposed of.
Subsection (3) provides that the court may, if satisfied in relation to the matters referred to in paragraphs (a), (b) and (c) of subsection 2, authorise further periods of detention of up to three months. Subsection (4) provides that the total period of detention shall not exceed two years from the date of the first order and the detention shall cease if the proceedings concerned are summary or are discontinued.
To further protect the rights of owners of vehicles, I am also providing in subsection (5) that the owner or person in charge of the vehicle may apply to the court for its release. Where such application is made, subsection (5) provides that the court may order the release of the vehicle unconditionally, release the vehicle subject to security on condition that it is made available to the court if the arrested person is convicted and an order for forfeiture is made under section 3, order the release of the vehicle subject to such conditions as it considers appropriate or order the forfeiture of the security if the vehicle had been released conditionally and was disposed of without the permission of the court.
Subsection (6) defines "court" as the District Court or, if the person has been charged and if court proceedings have begun, as the court hearing the proceedings.
In relation to the amendment and the power for forfeiture, the Minister will have the opportunity to read the submissions made to the committee by the hauliers association. He probably will have seen the legal submission from Mr. Howard on behalf of the Irish Road Hauliers Association. It sets out the concerns they have in relation to the impact of the Bill on their members. Perhaps the Minister would respond to the points they have raised, particularly that the penalty for forfeiture and seizure of vehicles is excessive and that the test of reasonable diligence be an objective test. It is suggested that negligence can be easily levied against the hauliers with all the circumstances being taken into account.
The barrister's opinion to the hauliers in evidence before the committee suggested the defence of forfeiture set out in section 3(3) is only available to the owner and is contingent on the driver, not the owner, having been convicted under section 2 of the Bill. The barrister presumes that the drafting of the section in this way was to protect the owner from the reckless or stupid acts of one of his employees who carries illegal immigrants.
Perhaps the Minister would address these points so that the concerns of the hauliers can be allayed before the provision is enacted.
The fairest way to do this is by dealing with the amendments coming up. I will try to deal with Deputy Howlin's concerns when I reply to the amendments Deputy Jim Higgins has tabled.
Does the Minister want us to accept his amendment without responding to these matters? I am sure he does. I would prefer the Minister to address the issues.
Amendment No. 14 deals with the extension of reasonable diligence to cover the owner inquiring whether such persons tried to get into his truck. My concern, and that of the road hauliers, is that a court could hold a truck owner not to have exercised reasonable diligence if he failed to make inquiries which could have revealed that his truck had carried illegal immigrants on occasion. That could be interpreted as a stipulation that no reasonable truck owner would fail to make those inquiries. That imposes an undue obligation on the truck owner and the truck driver.
We must understand the nature of the haulage business. The trailers are attached to the vehicle. If the trailers attract such activity, one might say that they can be changed but it is not that simple. Trailers are chosen to suit many different situations - loading, unloading, type of product, customers' needs and multiple deliveries and collections. It is against this background that hauliers object to this provision. They know their members are being targeted by asylum seekers but in most instances the operators are cunning and they know the nature of the business, that people are obliged by road traffic regulations to take long rest periods and, therefore, a driver on his own is not in the position to exercise the due diligence that the Minister seeks. They have major concerns about the practicality of the Bill.
The best thing to do is deal with the issue of reasonable diligence while dealing with the amendments. Section 3 provides that when a person is convicted of an offence of trafficking, the vehicle used may be the subject of forfeiture ordered by the court. This order may be in addition to or instead of any penalty imposed by the court under section 2. Subsection (3) provides that where the convicted person is the captain, driver or other person in charge of the vehicle, forfeiture will not be possible unless the owner or, where the owner is a company, a director or manager of that company knew or could with reasonable diligence have discovered that the vehicle was being used for the purpose of the commission of the offence. If I accepted Deputy Higgins's amendment, it would mean that an owner of a vehicle could turn a blind eye to what was going on. I am sure this is not what the Deputy intends.
I am aware that representatives of the road haulage industry raised the issue during the hearing of evidence and I assume, therefore, that the reasonable diligence test concerns the Deputy because he feels it places a strict liability or a high level of liability on the owners. This is not the case.
There are two aspects to the provision. It means, by implication, that the owner is expected to exercise reasonable diligence in relation to the use of his or her vehicle. It simply means that he or she is expected to exercise the reasonable care that might be expected of a person in the position of owner. This is a commonly accepted standard of care and is no more than common sense suggests should apply. Such reasonable care would have been taken if the owner had established a proper system to guard against misuse of his property by traffickers and took reasonable steps to ensure that his or her business is operated in a responsible manner.
If the trafficking is such that the exercise of reasonable diligence could not have detected it, then the owner is not considered culpable and his or her vehicle cannot be forfeited. I emphasise that this provision does not impose requirements on owners other than the requirements which common sense says owners should put in place anyway. In other jurisdictions additional requirements have been placed on owners through carrier liability registration or through strict liability legislation in respect of stowaways. Such matters are not provided for in this Bill.
There is a need to examine if such provisions should be a feature of our law and I am having these matters examined in the context of the proposed immigration Bill. Any proposals which I bring forward will be made after consultations with carriers such as hauliers, shipping and airline companies. In those circumstances the Deputy will understand why I cannot accept the amendment.
It is appropriate while we are discussing this amendment to refer to another issue raised by the haulage industry in its evidence - how leased vehicles will be dealt with under the Bill. I am examining how section 3 can apply to vehicles which are leased or are the subject of hire purchase agreements. If necessary I will bring forward an amendment on Report Stage to clarify the issue.
The road hauliers have raised valid points. One of the ways in which international container traffic operates is by a drop and pick situation. The shipping line employs a haulier in another country to collect the load and bring it to the boat. The shipping line ships the trailer and then an Irish haulier collects it and delivers the goods here. Where does responsibility lie in such a case? Leasing must also be clarified. Asylum seekers can board the ship and get into the trailers while on board. How can a driver or owner be held culpable in such a situation?
He would not be held culpable because he could not be held not to have exercised due diligence. On the other hand, if he knew someone in France was involved in making money from trafficking illegal immigrants and that a driver was ferrying them in a container using his lorry, he would then be expected to do something about having such a driver in his employment. The legislation is not intended to catch people unaware but it is intended to stop them turning a blind eye. They will be expected to exercise the diligence expected of a normal person - not to allow his vehicles to be used to traffic illegal immigrants. The same is expected in any other matter; people are expected to exercise such diligence. We are not imposing an undue burden on anyone. That is not the intention and there is no strict liability. We are asking people to exercise ordinary care.
The Minister's explanation is acceptable to me and I am associated with the haulage industry. Provided that the interpretation given by him this morning is accepted by the officials who will undertake the examination, it will be acceptable. It is very difficult to police this legislation in terms of how individuals get on a truck. In my constituency two companies were associated with this but they were completely innocent. The key to the operation of the legislation is that the haulier is approached as an innocent party and the explanation given by the Minister is accepted by the officials enacting the legislation.
Has consideration been given to the State exercising due diligence? Has any thought been given to the possibility of having someone located in Fishguard or Le Havre, for example, to carry out routine checks on trucks to determine that there are not asylum seekers there?
However desirable they would be, the difficulty is that such checks would have to be carried out in a different jurisdiction. I take Deputy Higgins's point with regard to co-operation with the French and British authorities. I had a meeting with the Minister responsible for immigration in Britain last Monday and she was most co-operative and very helpful. I intend to have a meeting with the French authorities to discuss the possibility of people immigrating illegally to this country from France. Deputy Higgins will appreciate that I cannot become involved in another jurisdiction.
US immigration authorities, for example, now operate at Shannon and Dublin airports which are in our jurisdiction. This works quite well, by agreement.
By agreement, yes. Documentation is processed by the US immigration authorities but that is a different matter. Within the European Union we have the treaties of Rome, Maastricht and Amsterdam and several protocols and so on. These all impact on the situation.
On foot of the discussions we had with the Irish Road Haulage Association, I proposed that the select committee would write to the French and British ambassadors. I had already written to the French ambassador on the requirement for diligence at the ports of embarkation. Has there been any response to that?
Yes, your proposal was noted. We are waiting until the Bill has passed Committee Stage. At that point action will be taken on your suggestion.
The Minister said he had a meeting with the British Minister with responsibility for immigration. What was her reaction in particular terms and has the Minister had discussions with the French authorities?
I have had direct discussions with the French authorities.
Does the Minister propose to have such discussions?
Yes. The situation at Cherbourg improved greatly when we outlined our concerns following a number of incidents some years ago. The suggestion of liaison officers is very solid and is one I favour. This would have to be done by agreement. It would be very helpful if I could get agreement for immigration officers from here liaising with their counterparts in Britain and France. The British situation is very different because of the common travel area.
I intend to meet the French authorities in order to have a discussion about this matter to see if we can enhance co-operation between our respective jurisdictions. I feel sure that we can. The suggestion is a solid one.
Taking into account that this is the second time this matter has been raised we will certainly write those letters, as was suggested.
Amendment agreed to.
SECTION 3.
I move amendmentNo. 14:
In page 4, subsection (3), line 23, to delete "or could with reasonable diligence have discovered".
This amendment is not being pressed but I reserve the right to re-introduce it on Report Stage.
Amendment, by leave, withdrawn.
Section 3 agreed to.
NEW SECTION.
Amendments Nos. 1 to 7, inclusive, to amendment No. 15 are related. Amendment No. 15 and amendments Nos. 1 to 7, inclusive, to amendment No. 15 may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 15:
In page 5, before section 4, to insert the following new section:
4.-(1) A person shall not question the validity of-
(a) a notification under section 3(3)(a) of the Immigration Act, 1999,
(b) a notification under section (3)(3)(b)(ii) of the Immigration Act, 1999,
(c) a deportation order under section 3(1) of the Immigration Act, 1999,
(d) a refusal under Article 5 of the Aliens (Amendment) (No. 2) Order, 1999 (S.I. No. 24 of 1999),
(e) an exclusion order under section 4 of the Immigration Act, 1999,
(f) a decision by or on behalf of the Minister to refuse an application for refugee status or a recommendation of an Appeal Authority referred to in paragraph 13 of the document entitled 'Procedures for Processing Asylum Claims in Ireland' which, as amended, was laid by the Minister for Justice, Equality and Law Reform before the Houses of the Oireachtas in March 1998,
(g) a recommendation under section 12 (as amended by section 11(1)(h) of the Immigration Act, 1999) of the Refugee Act, 1996,
(h) a recommendation of the Refugee Applications Commissioner under section 13 (as amended by section 11(1)(i) of the Immigration Act, 1999) of the Refugee Act, 1996,
(i) a decision of the Refugee Appeals Tribunal under section 16 (as amended by section 11(1)(k) of the Immigration Act, 1999) of the Refugee Act, 1996,
(j) a determination of the Commissioner or a decision of the Refugee Appeals Tribunal under section 22 (as amended by section 11(1)(p) of the Immigration Act, 1999) of the Refugee Act, 1996,
(k) a refusal under section 17 (as amended by section 11(1)(l) of the Immigration Act, 1999) of the Refugee Act, 1996,
(l) a determination of an officer appointed under section 22(4)(a) of the Refugee Act, 1996,
(m) a decision of an officer appointed under section 22(4)(b) of the Refugee Act, 1996, or
(n) a decision under section 21 (as amended by section 11(1)(o) of the Immigration Act, 1999) of the Refugee Act, 1996, otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (hereafter in this section referred to as 'the Order').
(2) An application for leave to apply for judicial review under the Order in respect of any of the matters referred to in subsection (1) shall-
(a) be made within the period of 14 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the Order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made, and
(b) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to the Minister and any other person specified for that purpose by order of the High Court, and, such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed.
(3) (a) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
(b) This subsection shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.
(4) The High Court shall give such priority as it reasonably can, having regard to all the circumstances, to the disposal of proceedings in that Court under this section.
(5) The Superior Court Rules Committee may make rules to facilitate the giving of effect to subsection (4).
(6) References in this section to the Order shall be construed as including references to the Order as amended or re-enacted (with or without modification) by rules of court.".
The purpose of this amendment is to enshrine in primary legislation for the first time a code of law governing that essential element of our legal system, judicial review, as it applies in the case of a wide range of immigration and asylum matters.
It would be helpful to the committee if, before I come to the detail of the provisions in the amendment itself, I set out the legal context in which this proposal is brought forward. The present law on the operation of judicial review of decisions made in immigration and asylum cases is governed by the rules of court which apply generally to judicial review cases. There are no such rules which are specific to immigration or asylum.
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.
Encompassed under the general heading of judicial review are various special forms of remedy which can be sought by means of the judicial review procedure. An order certiorari redresses an act done in excess of jurisdiction. A mandamus order requires a body to perform a legal duty which it has refused to do. A prohibition order prevents a body from doing something which it proposes or is likely to do which would be an action in excess or jurisdiction. An order of quo warranto seeks to establish by what authority a person claims any office or privilege of a public nature.
The judicial review, historically, owes its origin to the common law but in Ireland has been given added backing by Article 34.3.1° 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 probably be struck down as inconsistent with that article. Current procedures, generally, for judicial review are 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 cases 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 of 1979, a paper which characterised the system of judicial review remedies as having two outstanding merits, comprehensivenes 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 affidavit, setting out the relevant facts. The applicant must satisfy the court, in a prima facie manner of the following: that he or she has a sufficient interest in the matter to which the application relates; that the facts averred in the supporting affidavits, if true, would be sufficient grounds for a statable case for judicial review; that on the facts, there is an arguable case in law for the review sought; that the application is made within the time limit which is normally three months or that the court is satisfied 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, Mr. Justice Finlay in the leading case of G. v The Director of Public Prosecutions 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, capable of being appealed to the Supreme Court, except where statute otherwise precludes it.
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, that is an order overturning a decision 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 a decision being made, with the possibility of an extension of time being granted. In the case of the 1997 legislation dealing with the Irish takeover panel, there is a provision confining to seven days the time in which a rule made by the panel relating to a takeover may be judicially reviewed.
Applications for leave to seek judicial review are generally held in the High Court on Mondays although in cases of urgency they may be made at any time, even exceptionally in a judge's home. Where leave to seek judicial review is granted ex parte, that is without the other side having first been notified, notice must be served on the other side within 14 days of the court’s decision.
This is the general procedural background against which the proposals we are examining today fall to be considered. The proposal will provide in primary legislation a set of procedures for judicial review tailored to the specific needs in the immigration and asylum areas of operation. Subsection (1) of the new section 4 sets out in paragraphs (a) to (n) the decisions or actions within those areas which are to be the subject of this new statutory framework. I propose to deal with these briefly.
The decisions at paragraphs (a), (b) and (c) relate to the deportation process as set out in the Immigration Act, 1999. These steps can arise in relation to any person liable to be deported, for example, a failed asylum seeker or a person whose deportation is being considered on one of the many other grounds for deportation set out in the 1999 Act. Some commentators to date have referred to the amendment as if it were a measure which applied to asylum seekers alone. That is not so. The amendment has a wider application. It applies to immigration matters and aspects of the asylum process.
Paragraph (d) concerns decisions taken by or on behalf of the Minister to refuse a person who has arrived at the borders of the State leave to land under the provisions of the Aliens (Amendment) (No. 2) Order, 1999. This will in most cases be done by an immigration officer exercising powers on behalf of the Minister under the terms of that order. Paragraph (e) relates to a decision by the Minister to make an exclusion order against a person. This will apply to a notorious international war criminal or the like.
Paragraphs (f) to (n) concern decisions taken in the asylum area. Paragraph (f) addresses decisions made at either first instance or on appeal under current administrative procedures relating to the determination of refugee status, the Hope Hanlon arrangements as laid before the Houses of the Oireachtas in March 1998.
Paragraphs (g) to (k) cover decisions to be made at various stages of the statutory asylum process under the Refugee Act, 1996. As Deputies will recall the 1996 Act was amended extensively by the Immigration Act, 1999, in order to make it workable. I made a commencement order recently applying the bulk of those amendments to the text of the Refugee Act. The recruitment processes for Refugee Applications Commissioner and membership of the Refugee Appeals Tribunal are under way. As soon as they are complete I will make the necessary commencement orders to bring the amended Refugee Act into force. I will also be making the necessary regulations specifying the detailed procedures under the Act.
Paragraph (j) concerns decisions under section 22 of the Refugee Act, 1996, as amended by section 11(1)(p) of the Immigration Act, 1999, to transfer asylum applications to another country under the Dublin Convention. On commencement of the Refugee Act, as amended, responsibility for determining Dublin Convention cases will lie with the Refugee Applications Commissioner, any appeals being made to the Refugee Appeals Tribunal. Accordingly paragraph (j) has no effect until the Refugee Act has commenced.
Under the Refugee Act as it stands, Dublin Convention decisions are dealt with by an officer of the Minister and an independent appeals officer appointed by the Minister under section 22(4) of the Act. Paragraphs (l) and (m) of the amendment deal with decisions of the officers currently operating the Dublin Convention process. Paragraph (n) provides for a decision of the Minister to revoke a declaration of refugee status.
These are the decisions, orders, recommendations and so forth to which the new statutory provisions governing judicial review in this amendment will apply. Some of the matters covered will not become effective until the Refugee Act has commenced. Others will become redundant from that point on. The new procedures which will apply to judicial review in immigration and asylum cases will have the following features in contrast to those applying to cases generally.
The first consideration is the question of sufficient interest on the part of the applicant for judicial review. There is no need for the amendment to address this issue since it is axiomatic that a person, the subject of a possible deportation or an applicant for refugee status, has a clear and direct personal interest in the matter before the court.
The next consideration is the nature of the basis for the application, the normal standard being that the applicant must show on the facts that there is sufficient ground for a stateable and arguable case in law. For a judicial review of cases to which this new provision will apply the applicant will need to show that there are substantial grounds as to why the application for judicial review should be granted. The substantial grounds criterion, where it applies in other cases, has been interpreted by the courts as requiring that the grounds must be reasonable, weighty and not trivial or tenuous. It has also been determined by the courts that no matter how important the issue involved, a ground cannot be substantial if it cannot succeed. These will the standards also in immigration and asylum cases.
The next criterion is the question of time limit. Order 84, Rule 21 of the Superior Court Rules requires that an application for leave to apply for judicial review shall be made promptly and within the time limit to which I referred. A requirement for promptness makes perfect sense as there is little point, for example, in asking the High Court to find that an order, such a deportation order, was made in excess of jurisdiction if the time limit for executing the order has expired and the person has been deported. There have been cases where the High Court has refused to give leave to apply for judicial review because, even though the application was made within the time limit specified in the rules of court, the court took the view that it was not made promptly. That is the reason, in the context of this amendment tailoring the judicial review process to the specifics of immigration and asylum matters, a time limit of 14 days is specified on grounds of practicalities. As with the current rules of court and other statutory provisions dealing with judicial review procedures, there is express provision in the proposal before the committee for the court to allow an extension of time.
The Government is committed to providing protection for refugees and the application of fair procedures in accordance with the law to all immigrants. Those genuinely in need of the protection of this State will always be given that protection in accordance with our international obligations. As I have consistently declared my aim is that such persons can be identified as such as soon as possible after their arrival in the State to ensure they can take up their entitlements and commence the process of integration into their new society. In that context I launched in February a major new initiative to assist in the integration of refugees consistent with the maintenance of their own cultural identities.
The Government has this week agreed to the establishment of the reception and integration agency recommended in the report. Ireland, like other EU member states, is facing serious problems with persons who seek to abuse our asylum procedures and immigration controls. Abusive claims in particular act to the detriment of those genuinely in need of the protection of this State because they clog up the asylum determination process and serve to delay decisions for all applicants. We are determined to take the necessary measures to deter and prevent such abuse. This includes ensuring the judicial review process which I regard as fundamental to our system of justice cannot be used to create unnecessary delay in the deportation process where there is no issue of substance which would warrant postponement of a person's departure from the State.
The purpose of this proposal is to 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 process cannot be used to delay that person's departure where no substantial case can be made which would warrant postponement. The proposal contains safeguards to ensure those with a substantial case to make have a full opportunity to make it. The judicial review process is not an appeal from the decision in question but simply a means for testing whether the procedures leading to the decision were proper. The concern is to ensure 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.
Subsection (2) (b) requires that the Minister be put on notice of applications for leave to seek judicial review. This will afford the Minister as respondent the opportunity to address at the outset the issue of whether there is a substantial case. The High Court will have the power to refuse the application for leave to seek judicial review unless there is a substantial case.
A significant feature of the provision in the amendment is subsection (3) dealing with appeals to the Supreme Court. Under Article 34.4.3 of the Constitution the Supreme Court has, with such exceptions and subject to such regulations as may be prescribed by law, appellate jurisdiction from the High Court. The provision in subsection (3) in keeping with the policy to ensure the courts will not be used as an excuse for delay except where there is a substantial case to be made which would justify delay confines the appellate jurisdiction of the Supreme Court to situations where the State or applicant for judicial review can persuade the High Court that the issue to be appealed involves a point of law of such exceptional public importance that it is in the public interest that the Supreme Court should hear the appeal.
Article 34.4.3 of the Constitution provides that no law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve any questions as to the validity of any law having regard to the provisions of the Constitution. Paragraph (b) of the new subsection (3) ensures compliance with this constitutional requirement.
Subsection (4) reinforces the thrust of the rest of this provision in avoiding delay by requiring the High Court to give priority to these cases. Subsection (5) enables the making of rules of court in order to achieve that end. While the management by the High Court of its time and ordering of its business is a matter for the court itself, these provisions send a clear signal from the Legislature that its policy is that there should be no undue delay in these cases and that, if necessary, such cases should be dealt with ahead of other cases before the courts. That is not to say that the parties, including the State, are relieved of any obligation to act with alacrity in either seeking to challenge the decision in relation to which judicial review is sought or in defending the process by which the decision was arrived at. I assure Deputies that all necessary steps are being taken by the State side in these cases to ensure the matters are disposed of expeditiously. I commend this amendment to the committee.
On a procedural matter, being new to the job here, we are also discussing amendments Nos. 1 to 7 to amendment No. 15. Could the Minister reply to those or do the Members wish to contribute, because he has already spoken?
In fairness to myself, I would like to hear what Deputies Howlin and Higgins have to say.
Will it alter the Minister's response?
It might.
It is highly unlikely.
I presume Deputy Howlin will reply first, or does he want to take his own amendments as well?
Most of us would regard this the most significant part of the proposals. That is indicated by the Minister's 15 or 20 minute contribution. It is difficult to follow structured legal argument, such as the Minister has just put, for 20 minutes at a single hearing. It would have been helpful had that argument been available to us to peruse in advance of coming together here.
I regard the Minister's amendment as entirely inappropriate in this section because, whatever its merits, it clearly does not belong in a Bill that deals primarily with illegal trafficking. Any legal opinion I have had would indicate that. It was suggested to me that I should seek to amend the Long Title to "Illegal Trafficking and Curtailment of Access to Justice Bill" as a way of encompassing the Minister's intent in the Bill before us.
I want to make a few general points about it because this is a fundamental issue and I am at a disadvantage in trying to remember all the points made in the long and detailed legal submission the Minister has just put in defence of his position. I find his argument wholly unconvincing. The principle he wants to put in here should be argued, if the Minister believes in it, as a principle to curtail judicial review in all instances. It is disingenuous of the Minister——
Let me interrupt the Deputy for a moment. For clarity, if we deal with the amendments to amendment No. 15 seriatim and, having dealt with those individual amendments, we will be able to consider the overall amendment. We would have time to digest it more.
The import of all the amendments is basically the same, to roll back as far as we can what I and my colleagues regard as a serious assault on the personal rights to justice of non-nationals in this country. The principles are over-arching. It would be useful if I made a general statement and then rationalised the amendments I want to make to the Minister's amendment. Is that acceptable to the Chair?
The Deputy is moving amendments Nos. 1, 2, 4, 5——
I understand I cannot move them until such time as the Minister's amendment has been disposed of.
The Deputy is discussing them all.
Yes.
That is fine. The amendments to the amendment will be disposed of prior to disposing of the Minister's amendment, so we have to move the amendments to the amendment first. Perhaps the Deputy would movethe first of those and then we will discuss them all.
I move amendment No. 1 to amendment No. 15:
In the last line of the new subsection (1), after "Order')" to insert "or any other lawful proceedings".
I want first to talk about the principle because it is of extreme importance. I was about to say that the Minister's argument that this has broad application is disingenuous because that is clearly not the case. The amendment to curtail access to judicial review is designed in this proposal to deal with immigration, deportation and asylum questions exclusively. They do not have further impact. If the Minister is minded, because of his desire to rationalise the judicial system, to delimit the power of access to judicial review in the broad band of all cases, his argument would be sustainable. However, it is not sustainable within the narrow focus intended in his amendment. Put simply, the Minister proposes that no administrative order or decision relating to immigration, deportation or asylum can be questioned other than by way of application to the High Court for leave to apply for judicial review. That application, in accordance with the regime enunciated by the Minister, must be made within 14 days. The decision of the High Court on this preliminary stage of what may be a complex and detailed argument of law and fact is then to be final and conclusive unless there is held to be a point of law of exceptional public importance. In the 14 day period, which is exceptional except in planning matters, a substantial case has to be made, not the normal application of stating a case which may or may not be convincing to a member of the High Court but there is sufficient merit to hear an argument. That is the normal ex-parte application explained to us that routinely happens on a Monday in the High Court. This is a fundamental shift.
I hope the Minister will listen to argument on this matter because I have met no lawyer who supports or is not alarmed by this proposal. I know the Minister would have had a chance in particular to read if not hear the comments of Mr. Peter Finlay, senior counsel, who came before this committee and was close-questioned on this matter. I will quote some of the comments made by Mr. Finlay and I hope the Minister will not only reflect on them but deal with the issues raised.
Mr. Finlay in his evidence before us stated:
One must ask why it is that, at this stage in the evolution of the legislation dealing with immigration, we must move against the drift of what has been well and truly considered by the most learned legal minds of the State. In my view it is counter to what has been taking place in the courts to introduce provisions which limit to 14 days a person's access to the Superior Courts, for whatever reason. Courts have, time and again, reiterated the view that for whatever reason people, regardless of who they are - whether they are millionaires or criminals or both - should have equal access to the courts and that they must appear to be treated equally when they appear before the courts.
Mr. Finlay was of the view that "it defeats the purpose of learned pronouncements on the equality of treatment before our courts if the access to that treatment is unequal". He went on to state, "I cannot understand why a rule that provides for three months under order 84 of the rules of the superior courts should be reduced to 14 days for certain people but not for others.
The first principle the Minister has to address is why he wants to introduce a regime that will apply to individual people but will not apply to all people, because all the judgments emanating from our superior courts since the enactment of our Constitution have ensured there would not be discrimination between people when they sought decisions in relation to their personal integrity or rights.
Mr. Finlay went on to state:
The courts have said that the wording of Article 40.3 of the Constitution commits the State to protect and vindicate the life of every citizen. It does not justify an inference that relieves the State of the obligation to defend and vindicate the rights of persons who are not citizens. It was in dealing with a different issue in the case of Finn and the Attorney General, that Mr. Justice Barrington . . . said that in 1983. He had dwelt on the provisions of the French declaration of rights of 1789 and the Declaration of the Rights of Man and of the Citizen. The concept of citizenship and man and person and human being could not be separated one from the other.
He also said:
The idea that a person could prepare a case for the High Court within 14 days of a decision is lamentable.
I do not like to use strong language, I am far more used to the more measured atmosphere of the courts where one would not be expected to use the language of outrage. However, people sometimes people forget that we in the courts are also advocates. There are occasions when one must make exceptions and this is an appropriate case.
In his evidence he said he was dismayed at the contents of the amendments, that they were lamentable, inoperable, uninspired and ill-considered. I do not wish to read everything he said into the record again because the Minister will have a chance to read it. However, he said that in his own weekly practice when he goes to the court to seek a judicial review he does that in about ten minutes because a judge ought to have explained to him in very clear terms the offence perpetrated, the ultra vires conduct of a particular quasi-judicial or administrative body that is being challenged and it is succinctly put. The judge relies on the knowledge of the law, reads the papers carefully and determines whether a prime facie argument can be made. That is normal. One does not have to have a substantial argument on the day for most judicial review applications. Why is it that the Minister requires a substantial case in this instance?
Mr. Finlay said in evidence to this committee, "I would think it is so regressive that it will offend many canons of our law and also make a mockery of this State's promise to ratify the European Convention on Human Rights". That is what the learned counsel said. He urged the committee to seek that the President would refer the Bill, if passed, to the Council of State and that it ought not be signed into law. I have seldom come across somebody who is so highly regarded and regarded as balanced, make such a trenchant case against any item of legislation. I found his arguments compelling and convincing. For that reason I am opposed to the Minister's intentions and I am fearful, notwithstanding the arguments in the Minister's presentation, that they are unconstitutional, a view expressed to me by many legal sources. Perhaps the Minister will deal with the constitutional matters in some detail.
My first amendment seeks to insert after "Order" at the end of the new proposed subsection (1) "or any other lawful proceedings". The purpose of the amendment is to limit the outrageous suggestion that a decision on asylum could only be challenged by way of judicial review. This is a matter of personal liberty and there should not be a procedural strait-jacket applied. An example might be where an asylum seeker is charged with an offence arising out of being in a state illegally. If, as part of his defence to the criminal charge he says that the deportation order was invalid, the State can say that under section 4 of the Illegal Immigrants (Trafficking) Act, that does not apply and that one can only challenge an order by judicial review, not by way of defence in a criminal trial. Is that the proper interpretation? If so, my advice is that the provision is clearly unconstitutional.
My second amendment seeks in the new subsection (2)(a) to delete “14 days” and substitute “six months”. As already stated, even by the Minister, six months is the normal period in which to seek a judicial review to quash a decision as certiorari. If anything should be done with regard to changing the existing position, particularly in relation to asylum seekers where there are language and understanding difficulties, it might be argued that the period could be extended. To dramatically curtail it in the way the Minister envisages is wrong.
The Minister on Second Stage, and his spokesperson quoted in The Irish Times, spoke about vexatious appeals. I would be concerned such references, particularly from a Minister who is a barrister. It ignores the fact that one needs the leave of a judge on the basis of an arguable case to launch a judicial review. The notion that there would be vexatious cases that would not simply be thrown out of court by a High Court judge is contemptuous of the courts. For many decades we have had reason to value the courts and the jurisprudence established to protect citizens’ and non-citizens’ rights.
Is the Minister of the view that judges are handing out leave to appeal too leniently, too frequently or too readily? Is he seeking to interfere with the court's view? Is he seeking to curtail the notion of an arguable case? In any event it is clear from the evidence, which is backed up by the lawyers to whom I have spoken who are involved in trying to prepare applications for judicial review, that 14 days is lamentable and wholly inadequate to prepare a statable case, not to mention a comprehensive case, on which a binding decision will be determined.
My amendment No. 4 seeks in the new subsection (2)(b) to delete all words from and including “be” in the first line down to and including “and,” in the fourth line. Normal judicial review leave is applied for ex parte. Why is there a need for a stricter rule in this regard, that is, notice for asylum? Currently the notice requirement is confined, as indicated to me, to planning matters. I am concerned that the notice requirement would be changed and perhaps there is a simple reason for that for. I would welcome the Minister’s explanation.
Amendment No. 5 seeks in the new subsection (2)(b), to delete “are substantial grounds” and substitute “is an arguable case”. This is to preserve, in essence, the status quo. Normal judicial review is based on an arguable case, as Mr. Finlay, senior counsel, stated clearly in the presentation he made to us. The only instance I see, and perhaps the Minister will broaden my horizon on this, where substantial grounds are required is in relation to planning. It is wholly inappropriate that personal rights and civil liberties should be equated with nothing other than planning decisions.
Amendment No. 6 to the Minister's amendment proposes to delete the proposed subsection (3). The restriction on the right of appeal to the Supreme Court is a particularly outrageous and unacceptable provision of this amendment. I do not know whether this is the first time the Minister, or any Minster, has tried to cut back on the right of appeal in an area other than technical administration. The notion that personal rights and liberties, which are affected by decisions, should not be reviewed again by the Supreme Court is one that runs counter to the normal views of the courts and the will of the people. The Supreme Court must be able to deal with the constitutional and legal rights of non-nationals as well as citizens of this State. I genuinely believe the Supreme Court will demand that right and strike down this provision as unconstitutional.
The final amendment in my name is amendment No. 7 which states in subsection (5) after "may" to insert "with the concurrence of the Minister". I am advised this is normal practice, that court rules normally require the Minster's consent. I do not know whether this is an oversight or if there is a reason the Minister moved away from normal practice in this regard. It is not one about which I am overly animated but I am advised it should be brought to the Minister's attention.
Perhaps Deputy Higgins would like to make an initial statement, is that agreeable?
I want to put the Minister on notice that we will never again agree to a situation where a Bill, which was presented to the House and which was designed to deal with a particular matter, is changed dramatically on Committee Stage. We had this experience before on the Immigration Bill, when, having dealt with the Bill on Second Stage and having heard from the relevant bodies about the thrust and substance of the Bill, the fundamentals of it were changed on Committee Stage. At that stage we said this was a once-off and we would go along with it.
The Illegal Immigrants (Trafficking) Bill was published and dealt with on Second Stage. As far as I can recall we did not vote against it because we agreed with the thrust of the Bill, as initially drafted, but there has been an attempt to change the entire dynamics of the Bill on Committee Stage. As far as I am concerned, that is offensive to the committee, its members and due process. We are entitled to the proper streamlined structures as set down in Standing Orders - publication, Second Stage debate on the general principle of the Bill and then Committee Stage. To have the entire substance and thrust of the Bill changed here to effectively bring on board a new Bill is simply not acceptable. While we are prepared to go along with it on this occasion, we will not co-operate if there is an attempt to make substantial changes of this nature and dramatically change the whole thrust of the Bill which has given rise to such a public furore.
Having said that, we want to deal with the whole issue of illegal trafficking in immigrants. We put down a clear marker that we are prepared to co-operate. It is in everybody's interest that the issue is dealt with effectively but I am at a loss to know the reason the Minister would willingly and knowingly strike down the entire Bill. There is no doubt, on the basis of the legal consensus on the unconstitutionality of the Bill, that the Bill, in its entirely, will be turned down by the courts as being unconstitutional. In trying to achieve the laudable objective of addressing the problem of the illegal trafficking of immigrants, why would the Minister deliberately introduce a section which all of the objective legal advice says will render the Bill unconstitutional? I have not heard anybody take on board the Minister's arguments in relation to the Bill. If he wanted to introduce something else as a separate, stand alone issue, he could have done that but he should have allowed the Bill come before the Houses in its drafted form, have it signed by the President, brought into law and effectively head off what is a difficult matter because illegal trafficking of immigrants is taking place. I do not know where his advice came from but he will rue the day he took that advice.
Deputy Howlin made a submission about the arguments put forward forcibly to the committee by Mr. Peter Finlay, senior counsel. Who exactly is Mr. Finlay? Mr. Finlay was appointed by the Minister as an independent appeals adjudicator. He was deemed to be a person with the expertise, competence and knowledge to deal with the difficult issue of adjudicating on appeals where initial applications have been turned down. Mr. Finlay resigned from that position because he felt he could not stand over the manner in which the procedures were being operated. Mr. Finlay felt compelled, on the basis of the Bill and the amendments now before us, to come before the committee and voluntarily make what was a riveting presentation. We had heard from non-governmental organisations, individuals and road hauliers but from my experience of two and a half years as a member of this committee, Mr. Finlay's presentation was riveting. He dissected minutely every aspect of the Bill and felt compelled to state that he was dismayed when he read its contents.
The Minister will acknowledge that Article 40 of the Constitution is clear. It states that all citizens shall, as human persons, be held equal before the law. As the Minister knows, we are not simply talking about citizens. The courts have already determined that this article of the Constitution has been broadened to enable any person who comes into this jurisdiction to have the same constitutional protection and the same right of access to the courts as an Irish citizen. That has already been determined. I cannot understand the Minister's thinking in trying to tamper with due process and the rights of access to the courts, which is to the effect that there will be one law for one set of individuals and another for asylum seekers. Why has he decided to make this selective decision? From the point of view of asylum seekers, the Minister intends to dramatically curtail their right of access to the courts but from the point of view of the practicality of presenting a case, he is not simply talking about 14 days but ten working days. As Deputy Howlin and Mr. Finlay said, we are talking about complex legal issues concerning the fundamental rights of people trying to prepare documentation to get a watertight case, because this is their last chance by virtue of the fact that the Minister is cutting off access to the Supreme Court. How can any person be expected to present a watertight case if the individual in question is already dealing with several other applications for judicial review because, as the Minister will acknowledge, there are people who specialise in this aspect of fundamental rights, that is, the right to asylum and the right to refugee status here. It is offensive to expect a higher standard from non-nationals than from nationals. It makes a mockery of the European Convention on Human Rights, which clearly sets out the fundamental right of people to due process. I cannot understand the logic behind this.
The Minister is presiding over a system in chaos. Instead of cutting across the time honoured constitutional rights of people to certain minimum standards of access to the courts in terms of time limits, he should address the existing procedures. I was disappointed to read the Minister's press statement the day before yesterday which states it is not possible to tighten up, streamline or to speed up procedures. That is where the thrust of the Minister's attention should be. Given adequate resources, including additional manpower, it should be possible to achieve a standard that all initial applications would be dealt with within a six month period and all appeals would be dealt with within a three month period. A deadline of nine months should apply instead of leaving these people languishing in a legal limbo on the streets with the obvious consequences to which that could give rise. Given the allegations about the cost factor involved in this regard and the incipient racism to which this is giving rise, we should address the existing procedures rather than tamper with the Constitution and people's constitutional rights.
It would probably be best if the Minister were to respond to the contributions of Deputy Howlin and Deputy Higgins after the break.
It would probably be as well to do that.
For how long will the committee adjourn?
Until 12 noon.
It would probably be best if I reply to all the contributions together, including Deputy Barnes's.
When we resume at 12 o'clock I will call Deputy Barnes to make her contribution.
Sitting suspended at 11.22 a.m. and resumed at 12 noon.
I will not go over the ground covered by Deputy Howlin and Deputy Jim Higgins. How is it that having reached the stage where the Bill had been voted on in the House and was about to appear before this committee, a drastic amendment should have been introduced at such a late stage? The amendment runs contrary to everything in other legislation regarding human rights in general and the rights of refugees in particular. It has no place in this Bill.
As Deputy Higgins said, everybody is agreed there is a real need for this anti-trafficking Bill and wishes to co-operate with its passage and to improve it. What concerns us now, apart from the prospect of passing bad law which runs contrary to legal opinion and the workings of the courts, is the risk of the legislation being struck down. This section and the entire measure will fall and that is the last thing the Minister wants. We accept that he is trying to put together cohesive and co-ordinated legislation that will protect the rights of citizens and non-citizens.
Will the Minister comment on the legal opinions on this matter offered in submissions to the committee? They were expressed with great concern by people who are committed to protecting people's rights while recognising the need for legislation to regulate immigration. The people who made presentations to the committee did so in good faith and the committee is acutely aware of that.
Perhaps the Minister will respond to the point made by Ms Teresa Blake, a member of the Refugee Council and the human rights committee of the Bar Council of Ireland, that it is entirely inappropriate to attempt to include this section in the Bill given that it deals with criminality. Her opinion was that there are attempts to insert it in this Bill because it could not be included in the Refugee Act. That Act protects the rights of refugees and immigrants and if such a provision was included there, it would be struck down. Her view was that it is being tacked to this Bill in a most inappropriate way because it would not stand up in terms of the principles of the Refugee Act. Will the Minister respond to that point?
I will not go over the ground covered by Deputies regarding what we considered one of the most important contributions ever made to the committee on any matter by Mr. Finlay. He said
By way of footnote to my own views, I am not a liberal on this issue. I do not believe that the ports and airports ought to be opened to everybody who wishes to enter. I believe they should be manned, the country policed properly and its laws applied vigorously. However, this is a bad law. It attempts to offend the courts, it offends what has been handed down and it will achieve nothing except a great deal of litigation.
The main point he made passionately was in regard to principle and his respect for the law, the courts and the Constitution. He said
. . . the notion that one would impose on a non-Irish citizen a higher requirement in order to be heard before our courts is offensive and runs contrary to the grain of what this country has been achieving significantly as an island culture with the outside world in its courts. I would think it is so regressive that it will offend many canons of our law and also make a mockery of this State's promise to ratify the European Convention on Human Rights, which speaks solely of the person in each article and is not predicated on their status.
The committee works with the Minister and we welcome much of the legislation that we have the opportunity and privilege to help process. However, we are greatly and seriously concerned that this not only runs contrary to Constitution, the courts, natural law and national and international statutes, but also runs the risk of ensuring the Bill, which all of us uphold, will be struck down.
On behalf of the committee I ask the Minister to remove this section and to give equal rights to the person concerned. As Mr. Finlay pointed out, we have a proud tradition where our laws and rights are based on the constitutional recognition of the person not their nationality. I recognise the difficulties and demands facing the Minister with regard to this area.
I presume I should deal with the amendments tabled by the Deputies.
I ask Deputy Higgins to speak to his amendments.
The first amendment seeks to retain the status quo of three months. The second amendment would delete the section inserted by the Minister which denies access to the Supreme Court.
I wish to preface my remarks with a number of points before I deal with the amendments and the comments made by the Deputies. My reply may be lengthy because of the amount of submissions made. However, the matter is of considerable importance.
I wish to make it clear that there is no intention in this or any other legislation, administrative measure or any thought or action of mine to in any way prejudice or disadvantage any person, irrespective of whether they are a citizen of this country. The legal advice available to me is from one of the most eminent senior counsels in Ireland, the current Attorney General. I am entitled and bound under the Constitution to take his advice. I am willing to listen to other opinions, but I will take the advice of the Attorney General, who is the adviser to the Government under the Constitution.
A judicial review is not a substantive rehearing of a case. Its purpose is merely to ascertain whether procedures were properly adhered to in the course of the hearing in the first instance or on appeal. This is important. We are not talking about a person being allowed to appeal to the High Court in relation to his or her status, which was determined in the first instance and on appeal. It has been asserted that the Government proposals for a special scheme of procedures for judicial review of immigration matters and certain asylum matters restrict the rights of asylum seekers in the courts and that the proposals discriminate against asylum seekers. This appears to be the general contention.
I will not go into specifics in relation to comments made by any individual to the committee because the person concerned is not a member of the committee. It would not be in accordance with fair procedures for me to seek to undermine the individual concerned in his or her absence, irrespective of what was done to me in my absence. Comments made to the committee in regard to the proposals in relation to asylum seekers and discrimination ignore the full scope of the measure which deals with matters that go well beyond the asylum process.
As I explained already, it also encompasses the various steps of the process under section 3 of the Immigration Act, 1999, leading up to possible deportation. This process applies to people who may be liable to deportation on any one of the many grounds set out in section 3 of that Act. The only asylum seekers to which that provision applies are those who will have their applications for asylum dealt with by another Dublin Convention state. Other asylum seekers are immune from deportation as long as they are seeking asylum. Section 3 of the Immigration Act does not and cannot apply to them. Section 3 applies to former asylum applicants whose applications have been rejected as it applies to others whose basis for being in the State is unsound or no longer sound.
Far from restricting access to the courts on the part of an asylum seeker, my proposal will copperfasten the judicial review procedure. I agree this procedure is fundamental to the judicial process for certain classes of immigration and asylum decisions. By putting a judicial review procedure tailored to the requirements of such cases on a statutory basis, it will provide certainty in the procedural aspects of challenges to decisions taken in these areas and will ensure that the rights of the individual concerned will be vindicated at an early date by virtue of subsection (4) of the measure which ensures that the court will deal with these cases as expeditiously as possible, consistent with the administration of justice.
The measure has been criticised as discriminatory because it applies only to non-nationals. It is discriminatory, in the same way as the social welfare code discriminates against 25 or 55 year olds by denying them an old age pension or against childless people by denying them the extra income of child benefit or against people of modest or substantial but sufficient means by treating them as ineligible for social welfare——
That is disingenuous and wrong.
Our entire edifice of statutes and much of common law is built on discrimination between classes of persons based on criteria of greater or lesser simplicity.
I do not believe the Minister believes that.
There is nothing wrong with the drawing of such distinctions——
I doubt that as a lawyer the Minister believes it.
——once the basis for the distinction serves a legitimate legislative purpose and it is not unreasonably discriminatory.
It is unworthy.
The legitimate legislative purpose served by the proposal before the committee has already been explained. The purpose is to provide, for the first time in primary legislation, a statutory code for judicial review of steps taken and decisions made in the asylum and immigration process which will facilitate the expeditious determination by the High Court of the procedural validity or otherwise of those steps or decisions. Such expeditious determination is self-evidently in the interests of those who invoke the judicial review jurisdiction of the High Court as it means they can have certainty earlier about whether they may remain in the State. It is also equally self-evidently in the interests of society generally. It applies to non-nationals only, just as income tax applies only to people above a certain income or prison sentences apply only to criminals.
There is a rational and justifiable basis for having provisions such as those I mentioned and the one before us which apply to particular categories of people or cases. The advice of the Attorney General, which I must take, is that the measure I am proposing today is constitutional. I am satisfied it will pass judicial scrutiny with flying colours, although I cannot say that with any degree of complete certainty. Deputies may wish to believe other advice. However, I will listen to the advice of the Attorney General, irrespective of what third parties might have to contribute, because he is the adviser to the Government under the Constitution.
My concern in bringing forward this proposal is that the judicial review process should not be used as a means of causing delay in asylum and immigration cases where there is no substantial case to justify that delay while at the same time ensuring persons with substantial cases will have a hearing before the courts and that decisions in those cases will be arrived at in a speedy manner consistent with the administration of justice. It is anomalous to hear Deputies call here and elsewhere for the process to be streamlined and for shorter periods within which people may get their decisions while, at the same time, vehemently opposing a provision which does what they want. That might make sense to them, but it does not make sense to me.
Will all the processes be complete within 14 days?
All the other processes, such as the hearing at first instance and the appeals process, will still be in place. A person's substantive case will be heard and the case will be heard all over again if the person wishes to appeal. People will have access to legal advice, interpretative facilities, etc. The system is as fair, open and transparent as any which exists anywhere in the world. I challenge anyone to say otherwise.
Commentators giving evidence before the joint Oireachtas committee have stated repeatedly, but without foundation, that I have claimed this amendment is necessary because of the number of frivolous, vexatious and unwarranted cases being taken. I have not spoken in those terms. I agree that under the present arrangements for judicial review the court is likely to be able to winnow out at the initial stages cases which are frivolous or vexatious on the basis of facts and arguments presented ex parte without the benefit of a legitimist contradictor. I have not suggested otherwise.
My proposal will not act against those who have a substantial case to make. There are sufficient safeguards in my proposal to ensure that is the case. The amendment proposes a procedure for a judicial review tailored to the specific requirements of asylum and immigration cases which, of their nature, give rise to circumstances which do not arise in other cases.
The case of N and Others v. the Minister for Justice which was decided in May 1998 is relevant. The applicants, Vietnamese nationals, arrived in the State in July 1995. They had come from Germany where their applications for refugee status had already been considered and rejected. In November 1995 they applied to the Department for asylum through a solicitor. In early December the solicitor declined an invitation from the Department to meet to discuss the admissibility of his clients’ case to the asylum procedure. Judicial review proceedings were instituted seeking to compel the substantive examination of the applicants’ asylum claims. Mr. Justice Geoghegan found in 1998 that the Department of Justice had “acted impeccably”, that the applicants’ solicitors had refused to co-operate with the Department’s procedures for dealing with the preliminary application and that they were not now entitled to complain about the procedure.
In this case I have no doubt the application for judicial review under the scheme proposed in my amendment, which would have been on notice to the Minister as distinct from ex parte, would not have gone past the first stage. The court did not suggest that the application was frivolous or vexatious and I am not making any such suggestion. Under my proposal the court would have heard preliminary presentations from both sides, instead of just one, and would have recognised on the basis of the facts presented by both sides that there was no substantial grounds for seeking leave to seek a judicial review. The matter would have been settled within a fortnight. Instead, however, there was a delay of two and a half years, which the Deputies opposite want to continue. It transpired in the light of the High Court decision that this was without foundation. It is to avoid a recurrence of that type of case involving inordinate delays without a substantial basis that I have introduced these proposals.
It has been suggested by commentators that this amendment is being inserted in this Bill as a form of cynical sleight of hand because to insert it in the Refugee Act would have been inconsistent with the 1951 convention and with the object and purpose of the Refugee Act. This argument is utterly without foundation in fact, logic or law as are many of the arguments put forward in recent debates. I have not sought to introduce this proposal by sleight of hand or as a cynical means of avoiding our solemn international obligations to those in need of our protection. I have heard such comments made before this committee and they are as preposterous as they are objectionable and nonsensical.
These proposals are being inserted in the Bill in line with the procedures established by the Dáil. The advice I have from the Attorney General's office is that this is a suitable legislative instrument.
Will the Minister put on the record the unacceptable and outrageous assertions to which he referred?
It was stated, for example, by the Irish Council for Civil Liberties that the inclusion of this provision in the Bill was a cynical sleight of hand. That is not correct. The allegation that the provision on judicial review was being inserted in the Bill because to insert it in the Refugee Act would have been inconsistent with the 1951 convention and with the object and purpose of the Refugee Act and the convention as part of the Refugee Act was made by the Irish Refugee Council. I have no difficulty putting these matters on the record. It is important that I have the opportunity to reply to these statements.
I can see no argument in law or logic which states that a provision inserted in one piece of legislation would be offensive to our obligation to refugees and asylum seekers under the 1951 convention but that the same provision inserted in another instrument gets around this obligation. That is laughable. I would not introduce a proposal unless I was satisfied it was in line with the Constitution and our obligations under international law. I accept that the Supreme Court will ultimately decide on the constitutionality or otherwise of the Bill. As a citizen of the State and a member of the Legislature and the Executive, I will accept that decision. The advice available to me from the law officer to the Government is that my measure is constitutional.
I have already stated I would not introduce a proposal unless it was consistent with the Constitution and our obligations under international law. If that was not enough, the argument blithely makes the assumption that my judicial review proposals are directed exclusively at the asylum process. It does not take a practised legal eye to recognise from a casual glance at the list of decisions, orders and other administrative steps comprehended by subsection (1) of this amendment that asylum matters form only a part of the remit of the provision. Those who level this criticism fall into the same pit as some media commentators who, by treating asylum and immigration as coterminous concepts, display a consummate lack of understanding of the issues.
It was stated here today, for example, that the judicial review process as now proposed would deny asylum seekers access to the courts. However, the point is being missed that when a deportation order is served the person is no longer an asylum seeker but an illegal immigrant. His status has been determined by the authorities under the law. We are beginning to confuse an asylum seeker with an illegal immigrant, which is turning the procedure on its head. This applies to people whose status has been determined under the procedures in existence in the country.
What happens if the procedures are flawed or not properly practised?
Unfortunately, there is confusion surrounding the difference between an illegal immigrant and an asylum seeker. That is disappointing.
That is deliberately blowing smoke into the argument.
That is not blowing smoke into the argument, nor is this a lottery process. This is a process which has been very carefully constructed in accordance with the law. I remind the committee again that the judicial review process is not the rehearing of a substantive case. That has already been done at first instance on appeal. A judicial review relates to whether the procedures were properly implemented.
Arguments have been put forward that the requirement that the High Court be satisfied that a substantial case exists in order that leave to apply for judicial review be granted somehow places too heavy an obligation on the applicant's counsel in preparing a case for court and that two weeks is insufficient time for a lawyer to put together a substantial case. This ignores, as I said, the fact that all decisions which may be challenged under this new proposal, which are listed in subsection (1), are decisions in which the Minister has an obligation to inform the applicant, not only of the decision itself but also of the reason for that decision.
Decisions which may be the subject of judicial review under this proposal are almost invariably the result of extensive prior contact with the person in question, during which the person will normally have availed of the opportunity to take legal advice. In many instances, that continuing legal advice and interpretation facilities are provided at State expense. In those circumstances, I cannot accept that where there is a substantial case to be made, that there has been a procedural flaw in the process. It would be beyond the competence of a lawyer to do so with great expedition.
In the case of an asylum seeker, all relevant documentation in relation to his or her application and any appeal is provided to him or her at each stage of the application process. The existing administrative arrangements provide for a thorough consideration of each application. Applications which are examined substantively are examined to determine whether the applicant meets the definition of a refugee under section 2 of the Refugee Act, 1996. The applicant is given a full interview and an opportunity to make submissions.
Where a person is not recognised as a refugee, he or she has access, as I said, to an independent appeals system. The appeal is determined by an appeals authority, a barrister or solicitor with at least five years' practice. Some of these appeal authorities, incidentally, have stated categorically on the public record that they were entirely satisfied with the integrity of the process. I am rather surprised that, as the committee chose to call in one appeals authority who resigned for reasons he has expressed, that it did not, in the interests of balance, call in other appeals authorities to hear what they felt. What was it afraid of? Was it afraid they would disagree with the submission of the previous person?
Time was the problem.
On a point of order, I have never before witnessed a Minister attack an all-party committee of the House on its preparation for Committee Stage of a Bill. It ill behoves the Minister to do that. Any——
I am not attacking the committee. I am asking why Deputy Howlin or Deputy Higgins, for example, did not call in other appeals authorities. Why did they pick one particular appeals authority?
The Minister's party has a majority on this committee.
Why did they pick one particular appeals authority?
We have acted in a totally non-partisan way in the preparation of evidence. In fact, we hear anybody who asks to be heard. The function of the committee system, as negotiated, is to allow a forum for any interested party to present a case. I propose we adjourn the debate immediately to hear anybody the Minister wishes us to hear before we proceed with the Bill——
I do not think——
I support that.
——if that is what the Minister feels should happen here. I will not continue to work on this committee if the Minister is charging me with approaching my work in a partisan way. My objective, and that of the committee members of all political hues, is to provide the best law. We come here with our opinions and advice. It is outrageous for the Minister to assert we pick and choose witnesses to present here. Any committee member is willing, on a cross-party basis, to ask questions. No member's proposal has ever been turned out. I ask the Chairman to defend the committee against that outrageous assertion.
I want to keep personalities out of this.
It should go on the record that, as Deputy Howlin said, a request was specifically made, which I, as Acting Chairman, acted on with the agreement of the members. A person, who had every right to do so, sought to make a presentation. No other person within the area the Minister speaks of asked to do likewise. I assure the Minister, in my capacity as a member and as the Acting Chairman at the time, that if they had done so we would have agreed to that with alacrity. We do not wish to descend to that level as a committee.
That clarifies the position. I now understand that any appeals authority who makes an application to this committee to make a submission will be heard.
Any citizen.
I am very pleased to hear that. I did not know that.
If the Minister is anxious for us to adjourn to hear anybody, I will happily do that.
There is no need to adjourn because, as Deputy Howlin knows, this debate is far too urgent and important.
The urgency indicated by the Minister when he published the Bill early last year seemed to diminish somewhat because we have not progressed very quickly on it. As Deputies said, substantial amendments were tabled after Second Stage which substantially altered the nature of the Bill. We have co-operated with the Minister in what is a most unusual practice. This ill behoves the Minister and I hope he will, on reflection, withdraw his assertion that we were picking and choosing witnesses to present a particular case to us. We are here to hear any citizen who wishes to——
The Minister has already stated that he understands the position. Anyone who has so requested has always been heard by this committee. I ask the Minister to continue his addressing of the amendment.
I have been particularly anxious to have this legislation before this committee for a considerable period. Everybody knows that. There is no doubt about that. This legislation was published in June 1999.
There was a problem, in that the then Chairman——
Let us not give the impression that I was delaying this legislation in any way.
The Minister was not acting with alacrity at the end of last year.
I have been acting with alacrity.
When was Second Stage moved?
I have been acting with alacrity throughout. Unfortunately, I am not in a position to order the business of the House. However, I have been trying with alacrity to get this legislation before this committee over a prolonged period.
There are clear signs of it.
That relates more to Dáil business. We are discussing amendment No. 15. I ask the Minister to address the amendment.
As I said, an appeal is determined by an appeals authority, who is a barrister or solicitor with at least five years practice. The appeals authority is provided with all the information provided to the applicant and such submissions as may be made by or on behalf of the applicant in connection with the appeal. At all stages in the determination process, legal aid and interpretation facilities are made available. Under the Refugee Act, these procedures will be on a statutory and independent footing, providing further certainty to the applicant. By the time the case reaches finality, its substance will be clear to all concerned. Full documentation will be available, including decisions and reasons on which a judicial review application might be based. Where issues of complexity arise, the High Court has the power, under subsection (2)(b) to extend the time in which to apply for judicial review, where it is satisfied there is good and sufficient reason for so doing.
I cannot and do not agree, therefore, that this is a provision which seeks to restrict access to the courts. To be honest, I would not do that. It would fundamentally ensure that applications for leave to apply for judicial review are dealt with fairly and speedily. If the provision is one that applies to a particular group of persons, that is, those subject to the asylum and immigration procedures, it is not for the purpose of singling these people out. Rather, it is to ensure they can be satisfied that they will be dealt with in a open and transparent manner under procedures that have integrity and consistency, reflective of the State's obligations to the people concerned.
I will deal, as quickly as I can, with the amendments to the amendment individually. Amendment No 1 to the amendment, tabled by Deputy Howlin, proposes:
In the last line of the new subsection (1), after "'Order')" to insert "or any other lawful proceedings".
This amendment is opposed. As I said, my amendment is designed to streamline into one procedure, that of judicial review, the process for querying decisions in immigration and asylum matters before the court. The effect of the Deputy's amendment would be to undo that streamlining and to invite parties to engage in procedures which are unspecified. That, in my view, would introduce lack of certainty and would serve only to confuse litigants. The judicial review procedure is a well understood one which, as I said in my opening remarks and subsequently, is concerned with the possibility of procedural flaws by the decision-maker in arriving at the decision being questioned. It is a satisfactory and sensible way of having the matter brought before the court with the optimum degree of expedition and the minimum of procedural burden.
The Government proposal does not affect in any way the habeas corpus jurisdiction of the High Court enshrined in Article 40.4 of the Constitution. No statute law can interfere with that or modify it in any respect. That is axiomatic.
If other procedures were to be engaged in by litigants on the basis of what is proposed by the Deputy, litigants would probably have to proceed by way of a cumbersome summons procedure. The plenary summons procedure, for example, is a general purpose multi-stage one, well suited for the general run of civil proceedings where one party seeks to recover damages from another or assert rights against another. It is not, however, a particularly expeditious procedure. Proceedings by way of special or, for that matter, summary summons, are special forms of the general procedure. The summary summons process is designed primarily for the recovery of debt. The special summons process relates mainly to the assertion of various forms of property rights. I see no advantage for the administration of justice generally, or for the attainment of justice in particular cases, in providing for a proliferation of different procedures whereby the validity of any of the steps listed in the Government proposal might be put at issue.
The judicial review procedure, in particular with the adaptations which my proposal would put in place, is not merely sufficient to enable the rights of the matter to be determined expeditiously, it is the procedure most suited to achieving those aims.
The discretion remains for the High Court in suitable cases to direct that proceedings initiated through the direct and expeditious judicial review channels should proceed using this plenary summons process. The various procedural aids to achieving justice - such as interrogatories, or clarifying precisely what matters are at issue, and discovery of documents so that both sides are fully aware of the facts - are equally available in proceedings by way of judicial review as in the plenary summons procedure.
In short, nothing of benefit would be added by the acceptance of Deputy Howlin's amendment, but much could be lost by allowing a climate of procedural uncertainty - a situation the Government proposal is directed at avoiding. In those circumstances, I do not propose to accept Deputy Howlin's amendment,
Amendments Nos. 2 and 3 are in the names of Deputies Howlin and Higgins, respectively.
Now that we have had the overarching discussion, it would be more efficient to deal with each amendment separately, rather than all of us responding to seven separate amendments.
I accept that. It would be difficult to take on board all seven amendments at once. It would be fairer if we dealt with them one by one. In replying to amendment No. 1, I have set out my stall and it is now for Deputy Howlin to reply.
I presume the generality plus amendment No. 1 will be discussed now.
Yes.
Is that agreed? Agreed.
I want to press my amendment strongly because it goes to the core of the issue. The Minister's intention is clearly to delimit the right of appeal to judicial review. As that is probably unconstitutional, if there are other lawful proceedings that may be available to an individual, it is wrong and unacceptable to curtail those. That, in essence, is the argument I have made. I want briefly to go through some of the points the Minister has made about his intentions. He said two contradictory things in his opening statement. He said he has no intention to discriminate. That is his first assertion. His second assertion is that, of course, this does discriminate. He then qualifies that by stating that it is a normal discrimination that, for example, discriminates against somebody who is over 65 and, as an old age pensioner, is entitled to a pension as opposed to somebody of 60 who is not so entitled. That is entirely disingenuous because we are not talking about that type of discrimination, we are talking about access to judicial procedure that must have common application. Procedure is the issue, not entitlement. Whether a person is 12, 60 or 90 years of age, if one feels the process unfairly discriminates one is entitled to have that process tested. Everybody must have equal access to that process. That is the net point and the Minister knows that. His argument is flawed and he knows it to be so. He might as well make a clean breast of it and say he intends to introduce a discriminatory regime to delimit the avenues open to this category of non-national. If he believes that, let him argue the case instead of putting up smoke screens to pretend he is doing something else.
The Minister then further compounds the matter by asserting that the impact of what he proposes will be to copperfasten the judicial review procedure by placing it on a statutory basis. I thank the Minister but I think the courts will assert their own right to supervise administrative action without the Minister having to guide them in that regard. The courts will, as is their constitutional prerogative, defend citizens' rights and the right of any human being under the Constitution. The Minister's attempt to delimit or define those access routes will not be well received by the courts.
The Minster has gone beyond the beyond in asserting that by curtailing the right of appeal he is providing certainty. Is that not hunky-dory? We might as well abolish the superior courts so that we can be certain that the decision of the District Court is grand and proper. Why would one be bothered to come out of the District Court at all? One could not be sure that a person might gallivant to a higher court. There is no logic in that. It is patent nonsense to claim that somehow——
On a point of order, Deputy Howlin suggested that we would consider each amendment in turn and I agreed to that.
Yes.
The Deputy is straying off onto another by-road and is dealing with amendment No. 4. If that continues we will be all over the place. We have to make up our minds about which amendment we dealing.
I thought the Chairman suggested we would have a general response to the Minister's presentation and that we would then deal with each issue, one at a time. I am in the hands of the Chair.
My response was to Deputy Howlin's presentation. The Deputy made a presentation, I responded and now he is responding to my response.
Yes.
We could be here until this day next year.
It is called Committee Stage, Minister. That is the way it works.
No, Committee Stage is to deal with the amendments. Deputy Howlin, not me, suggested that we should deal with each amendment individually, and I agreed to that. Now we are back to amendment No. 4. I can do the same but we will be here all day.
I know the Minister does not like to hear what I am saying but——
No, I love to hear what the Deputy is saying because I can argue against every single point he has made.
Comments should be addressed through the Chair. I understand Deputy Howlin has comments to make on amendment No. 15. However, for clarity and to get through it, will the committee agree initially to go through the amendments to the amendment? Then we will come back to the substantive amendment when members have more time to address it. Is that acceptable to the committee?
Because the Minister has stated principles, I would prefer to deal with those, but I am in your hands, Chairman.
I understand what the Deputy is saying and I can see why, but we want to get through the business as well. We need to follow a procedure that will enable us to get through the various amendments. At the same time, it will give the Deputy an opportunity to discuss the amendment. We should go through the amendments, Nos. 1, 2, 3, 4, 5, 6, and 7, separately. Will Deputy Howlin conclude his contribution on amendment No. 1?
Very well, Chairman, I will confine my comments in the way you have suggested. My first amendment to the amendment goes to the heart of it. It is simply to break the Minister's suggestion that appeals would be limited to judicial review. The structure of that will be dealt with in other amendments in terms of how it is done. However, the principle, the first issue, concerns lawful proceedings. I cannot recall any Minister for Justice bringing in a proposal, voting down or arguing against a proposal which would exclude people from access to lawful proceedings. I will be interested to hear the Minister's argument against that proposal.
I have been fairly clear about this. This is not about discriminating against anybody - I have said that already. When I used the words "discriminating against anybody" I expanded on the point so that it would be understood that I was speaking about discriminating unreasonably. There are all sorts of discriminations in life and in statute law. If the discrimination were unreasonable, Deputy Howlin would have a case. I do not, however, believe the discrimination is unreasonable.
The objective of the exercise is to ensure the judicial process is not utilised in order to continue with a case which does not really exist in order to avoid immigration law. That is the objective of the exercise. It is a reasonable stance for me to take.
The specific case mentioned by Deputy Howlin, which posited a situation where an asylum seeker charged with being in the State illegally might seek to invoke the argument that a deportation order was invalidly made, is, to be fair, highly hypothetical. Asylum seekers are immune from deportation except in the special case of someone whose asylum application has been processed in another European state. They are, as we know, Dublin Convention asylum seekers, which is a different concept. The Dublin Convention states that the individual must make his or her application at the point of first entry to a signatory state of the convention. That is a different category.
There is nothing in my proposal which would prevent a defendant in criminal proceedings instituting a judicial review and having the criminal proceedings suspended for the duration. There is nothing preventing anybody from taking a constitutional action, nor does this proposal seek to prevent anybody taking a constitutional action - far from it. The judicial review proceeding will still be there for any person who has a substantive case to make. All he or she has to do is establish that within 14 days. The whole issue then relates to whether the procedures were properly invoked. It is quite straightforward.
Amendment No. 1 to amendment No. 15 put.
The Select Committee divided: Tá, 7; Níl, 8.
Tá
- Barnes, Monica.
- Higgins, Jim.
- Howlin, Brendan.
- Neville, Dan.
- O’Sullivan, Jan.
- Ryan, Seán.
- Upton, Mary.
Níl
- Ardagh, Seán.
- Coughlan, Mary.
- Lenihan, Conor.
- McGennis, Marian.
- McGuinness, John.
- O’Donoghue, John.
- Wade, Eddie.
- Wright, G.V.
I move amendment No. 2 to amendment No. 15:
In the first line of the new subsection (2)(a), to delete “14 days” and substitute “6 months”.
I have already spoken to this amendment. It deals with the practical provision of a workable judicial review procedure. The Minister proposes that a substantive case would have to be made in the High Court within 14 days. The normal time provision for an application to quash or review an administrative decision is six months. This should be reinstated as the norm here. I will not rehearse the arguments.
I have spoken to a number of practitioners whose business is to prepare cases for judicial review. They tell me it is impracticable to prepare a substantive case in the 14 days allowed for here. The Minister argues in both directions at once. On the one hand, he says this is primarily, or not exclusively, applicable to the overview of deportation orders because there are other orders that might be subject to its purview. On the other hand, he justifies the 14 days provision because this is the time lapse within which such an order would be executed and in which an application to the courts would be required.
There are a number of important issues here. First, is the assertion of those at the coal face that this is not practicable. As a lawyer the Minister is probably better placed than the other members of the committee to know that. He would be familiar with the preparation for applications for judicial review and would be aware that it would be impossible to make a substantive case on a complicated matter within a period of 14 days. If he is fixed in his view and if he considers that some time limit is necessary I hope he will at least agree to reconsider the 14 days provision because it is unsustainable.
I accept the provision does not amount to an appeals mechanism, but certainty in procedure is required. All actions, including those by the Minister, are subject to potential judicial review. The value of the procedure is not challenged, but it is impracticable to expect a substantive case to be prepared for the High Court in the timeframe proposed. If he is not minded to accept the status quo I ask him to at least move some way to making the provision practicable.
Amendment No. 3 to amendment No. 15 is an alternative to amendment No. 2 to amendment No. 15.
I wish the Minister had responded to the points raised by Mr. Peter Finlay. He evaded the substance of his remarks on the basis that he deemed it would be improper to reply to somebody in their absence.
I said it would be unfair to reply when the man was not here. I replied——
The substance of the argument made by members of the committee is grounded on the quality of the legal advice from Mr. Finlay.
Is the Deputy of the view that the Attorney General does not know what he is saying?
He would not be the first Attorney General to get it wrong.
Is Deputy Higgins stating he has decided to believe Mr. Finlay and not the Attorney General?
I would prefer if personalities were not brought into the debate. Please address the points of contention rather than the people who made the points.
I will address the points but I will not become engaged in argument here about Mr. Finlay or anybody else because there are few Solomons left on earth.
On the quality of the advice, we are not just talking about a factotum lawyer who ranges across the entire spectrum of judicial areas in law but about a person with a special competence, knowledge and experience, who has seen the system from within and without and who sought the permission of the committee to come before it and make a substantial presentation.
Deputy Higgins, I would prefer if you would not discuss a particular individual and if you would address the point.
If he wants to go into that again, we will do so.
I would not go down that road, if I were the Minister.
I am not trying to go down that road again. Deputy Higgins is trying to go down some road, but I do not know what road it is. I have been fair about this. At the outset I stated categorically that I would not get involved in argument regarding Mr. Finlay, which was fair enough. I have dealt with many points. Mr. Finlay is not here and, therefore, I will not become engaged in that practice, and I told the Chairman that at the outset. That does not mean I am not tempted to do so now because I am human, but I will not.
Please do not draw on that temptation, Deputy Higgins. As a responsible member of the committee, will the Deputy address the points?
I admire the Minister's restraint. The idea, as Deputy Howlin stated, that 14 days is sufficient to prepare a substantial case is lamentable. It simply cannot be done in that time. I wonder if the Minister has thought through the implications of this. His argument is founded on the basis that the intention is to bring about certainty at the earliest possible stage. I have told him before that if he wants to apply certainty, restrict time, deliver an additional service and deliver an early decision, he must speed up the procedures, introduce the necessary manpower and have the matters dealt with at the initial stage, and more expeditiously at appeal stage, rather than tamper with the constitutional rights of people, as he is doing here. Does the Minister realise that, from an examination of the figures, the majority of people will resort to judicial reviews. They will avail of the constitutional right and all of this will have to be done within 14 days?
According to the figures published by the Department, for example, in 1999 the number of first instance applications outstanding was 6,985. That is on top of a backlog of 763 in 1998 and 234 in 1997, amounting to some 8,000 applications. On the number of appeal cases outstanding at present, the figures are 157, 1,008 and 594, respectively. The courts will be clogged up and a person will have 14 days within which to make an application. The Minister is creating a nightmare for the courts and the Legal Aid Board because I do not know from where the resources will come to deal with this process.
We will end up returning to this matter and we will say "we told you so" because this provision is unconstitutional. While I support the Minister's determined attempts to deal with traffickers, he will nullify, negative, neutralise and strike down the entire Bill by including this provision. What a wasted exercise?
I support Deputy Higgins's amendment. The examples of discrimination given by the Minister with regard to age, gender or social welfare benefits miss the point we are trying to make, that no person should be discriminated against in regard to his or her right of access to the courts and to the legal procedures of this land. If people in the circumstances to which the Minister referred felt their cases fell within those parameters of eligibility, they can bring the matter to the courts under the equal opportunities legislation, for example. Therefore, the Minister's argument is false. We are talking about the constitutional right of all people to have the same length of time to prepare their cases and to judicial review through the courts. That is the basic point. No smokescreen can dilute that.
The Minister is probably more aware than most of the lack of resources available to the Legal Aid Board. How does he propose the process will work? Most of those seeking such judicial review will depend on free legal aid. The Legal Aid Board and legal aid centres are already a disgrace in so far as they are not resourced. There is a waiting list for all citizens who seek free legal aid. This measure would also discriminate against citizens waiting for access to the courts who depend on free legal aid. If it is introduced and found to be constitutional, which I doubt, the resources of the Legal Aid Board will be taken up with this fast-track process and those in need of free legal aid for other purposes will have to wait for months. I ask the Minister to address this issue.
As I am vice-chairman of the committee and as I chaired the committee during the period to which we referred earlier, I inform the Minister that the normal procedure is that if a person wishes to make a submission to the committee and makes a formal request to do so, it is put to the committee to be agreed by the members. The consultative process is part and parcel of the democratic nature of committees. I register my concern that the Minister might have interpreted that the committee might, in a partisan or party political way, cherry-pick people to come here to make contributions on Bills to satisfy a party political or Opposition agenda. I wish the Minister would acknowledge that and withdraw any implication that it is otherwise because that is not the way the committee works, and I am proud of that. I am sure the Chairman is also proud of it.
I support what has been said by my colleagues about the right of every person to have equality of access to the various processes which the law makes available in any jurisdiction, including this one. As there has been considerable debate on that issue, I will not say anything further on the matter except that it is central to these two amendments.
I want to highlight some of the practical problems that would arise for people seeking judicial review if either of these amendments is not acceded to. To stay away from the issue of Mr. Peter Finlay, I refer to the letter from the Refugee Lawyers' Association which was sent to the committee on this matter. It states that the 14 day period would present insurmountable difficulties to the applicant and his or her legal representatives.
To whom is the Deputy referring?
The Refugee Lawyers' Association.
That is a new one. I have not heard of it before now.
It is another group to be added to the Minister's list.
I do not think it gave evidence but it wrote to the committee.
We will put it on the mailing list but I am not on its mailing list.
It is a short letter, but I will just state the point so the Minister can respond to it rather than to the individuals concerned. It states that this measure would presents insurmountable difficulties to the applicant and his or her legal representatives and that it would be unduly onerous to establish substantial grounds within 14 days taking into account the necessity for detailed instructions, translation facilities and the briefing of counsel. They further state - this point has already been made - that one must obtain new instructions because a point which is totally different from that contained in the original application for asylum is being made. I refer here to the point of law which relates to a judicial review.
As Deputy Howlin stated earlier, any legal opinion which has been available to us has indicated that it is substantially difficult - the letter to which I refer states that the difficulties involved are insurmountable - to make the case within 14 days. Will the Minister comment on the specific difficulties people will encounter, including those involving translation, legal aid etc. in respect of the 14 day period?
Will the Minister reply in respect of amendment No. 2?
The difficulty here - I do not blame Deputies for it because they have much work to do - is that I replied to some of these questions earlier this morning. However, that does not mean that I will ignore those questions.
In view of the fact that amendments Nos. 2 and 3 to my amendment are alternatives to each other and that the arguments in relation to each are largely the same - they are almost exactly the same - both are opposed. As stated earlier, the purpose of the Government's proposal is to provide a judicial review procedure which is tailored to the particular requirements of the matter at issue in the areas of immigration and asylum. An important aspect of that specific adaptation to those requirements is the incorporation of realistic time limits which are related to those applying to the decisions, orders and other steps listed at subsection (1)(a) to (n) of the Government proposal. It has not yet been satisfactorily explained to me why, in circumstances where an order, if unchallenged, will be executed within 14 days, the law should nonetheless allow a period of three months or, even more illogically in the case of Deputy Howlin’s amendment, six months within which a challenge can be legitimately brought. I suspect the reason it has not been satisfactorily explained is that it is not susceptible to rational explanation.
I will try again.
It simply does not make sense. What the Deputies are asking the committee to accept is that, notwithstanding that there are time limits of two and three weeks built into the legislation governing the various steps covered under subsection (1) of my proposal, the law should, in effect, say: "Do not mind those time limits, you have loads of time within which you can make your case challenging the validity of the decision or order to the High Court."
The logic of such a provision is that there should be a three month gap between each step in the asylum process. This suggestion originates with people who have previously insisted that the process was far too slow. The current argument is that there should be a three month gap between each step of the asylum process for the staff of my Department or, as will soon be the case, of the refugee applications commissioner and the Refugee Appeals Tribunal to give the applicant the full entitlement of time to question the validity of the process so far in the High Court.
If we were to follow the logic of Deputy Howlin's amendment, any person refused leave to land in the State would nonetheless have to be allowed to remain here for six months in case he or she wished to challenge the validity of the refusal. Each step in the deportation process would have to be followed by a long interval to give the potential deportee the opportunity to prevail of the period provided by law for the taking of judicial review proceedings. That is no way to operate an immigration policy and it is no way to run a country. No other jurisdiction operates such a policy.
The Minister's action policy, if he has one, is lately come by.
The three month limit, in some cases six months, provided for in the rules of the superior courts is, in many cases, more theoretical than real. If I, as a selector for my local football club - I have enough difficulties without becoming involved in such activities - wish to field a player in a game on the following Sunday, who has been ruled ineligible in a manner I believe is wrong——
The Minister would have to obtain Deputy Healy-Rae's permission to do so.
——the three month period allowed by the court rules would prove of little benefit to me. The fixture would proceed in any event and if I want the court to rule on the eligibility procedures I would be obliged to initiate a challenge before the following Sunday. I cannot expect the match to be postponed because the law states that I can question the validity of those procedures at any time within three months. That is not the way the real world works, unless things are different in Wexford and Mayo, but I do not believe that to be the case.
If I initiated High Court proceedings on the Monday following the match, they would be quickly dismissed because, notwithstanding the theoretical time limits and the rules, I failed to act promptly. The requirements of promptness of action are the first requirements set out in order 84, rule 21(i). In setting the time limit at 14 days, the Government proposal reflects the real world. The limits the Deputies' amendments seek to insert are all very fine in the general circumstances for which order 84 of the rules of the court must cater. However, in the areas of immigration and asylum to which the Government proposal is designed to apply, they are patently out of kilter with reality.
There is no point incorporating a theoretical, unreal and unworkable time limit in the Government's proposal. To do so would only cause confusion because of the obvious conflict between that limit and those set out in the various provisions listed in subsection (1) of the Government proposal.
With regard to legal aid to which Deputy Barnes referred, provision was made, under the Government decision which was taken on Tuesday morning last, for new accommodation for the refugee legal aid service. Earlier this year I announced additional funding for the refugee legal aid service and I am acutely aware of the absolute necessity to provide legal advice and assistance to people applying for asylum. That is why I ensured that extra funds were made available and that a one stop shop was put in place. Every assistance is given to a person to make his or her case at first instance and every legal assistance is given to them to make their case at appeals stage. In addition, every assistance will be given to a person to try to establish within the 14 day period that he or she has a case which should be heard by the High Court in terms of a judicial review.
I am not stating that a judicial case will be heard within 14 days. All I am asking is that the applicant, having undergone the entire procedure at first instance and the entire appeal process, should make a reasonable case to the court within 14 days illustrating why the procedures may not have been properly enforced. If the court believes the person has a reasonable case, he or she will be allowed to make it. However, putting in place periods of three or six months and allowing people to dance around the mulberry bush——
It is a racket. This is a normal procedure which applies to every citizen in the State.
——for months and even years and utilise the judicial process to circumvent immigration law is not acceptable in any democracy and it does not happen anywhere else.
Is the amendment being pressed?
I wish to respond to a number of the points made by the Minister.
Is the Minister aware that if you walk backwards around the mulberry bush three times you will see the Devil?
I think the Devil has arrived.
Does that only happen in Donegal?
The Minister stated that this section is a critical component of the Government's immigration policy and I wish to briefly tease out that point. On the Order of Business in October 1999 the Taoiseach, in response to a question I posed on the conclusions of the Tampere summit which inquired when we would put in place an immigration policy, stated that we already have such a policy. I wrote to him on 20 October 1999 stating that I had asked him a question arising from the Tampere summit conclusions regarding when we would have an immigration policy and that in responding he had indicated that we have a policy but that new legislation to update it would be introduced. I further stated that I would be grateful if he could supply a copy of the Government's policy on immigration or direct me to where I could find it.
I received a response to my letter on 21 October which stated that it had been acknowledged and would be brought to the Taoiseach's attention. On 26 October I received a further letter which indicated that the matter was the responsibility of the Minister for Justice, Equality and Law Reform and that my query had been referred to the Minister for urgent direct reply to me. I received a response from the Minister on 1 November which acknowledged my letter and stated that he would contact me in the near future. However, he has not contacted me in respect of this matter in the interim and I am still waiting to see a comprehensive statement of the Government's policy in this area. We have come as close this week as we ever have to an over-arching statement on Government policy. However, the Minister is anxious to preserve an integral part of his immigration policy in this section. It will be interesting to see where is such policy.
Deputy, the amendment relates to the deletion of "14 days" and the substitution of "3 months".
This mulberry bush has got me digging.
Is the Deputy pressing amendment No. 2 to amendment No. 15?
Yes.
Amendment No. 2 to amendment No. 15 put and declared lost.
I move amendment No. 3 to amendment No. 15:
In the first line of the new subsection (2)(a), to delete “14 days” and substitute “3 months”.
Amendment No. 3 to amendment No. 15 put.
The Select Committee divided: Tá, 7; Níl, 8.
Tá
- Barnes, Monica.
- Bruton, Richard.
- Crawford, Seymour.
- Higgins, Jim.
- Howlin, Brendan.
- Neville, Dan.
- O’Sullivan, Jan.
Níl
- Ardagh, Seán.
- Coughlan, Mary.
- Lenihan, Conor.
- McGennis, Marian.
- McGuinness, John.
- O’Donoghue, John.
- Wade, Eddie.
- Wright, G. V.
I move amendment No. 4 to amendment No. 15:
In the new subsection (2)(b), to delete all words from and including “be” in the first line down to and including “and,” in the fourth line.
We have already discussed this amendment which again relates to the procedure for judicial review. Normally, a leave to apply for judicial review is applied for ex parte and, as I already said, I do not see why a stricter rule should apply to asylum seekers. The only such notice is currently confined to planning matters. Perhaps the Minister will explain the rationale for not accepting this amendment.
Amendment No. 4 to amendment No. 15 is opposed. It seeks to remove from the Government proposal the requirement that applications for leave to seek judicial review are to be on notice to the Minister as distinct from ex parte at present. It is an essential element of the Government’s proposal that the Minister of the day is in a position to argue from the very beginning as to whether leave should be granted for judicial review in particular cases. It is relatively easy on the basis of selective presentation by an applicant’s lawyer of the facts of a particular case, uncontroverted by a legitimate contradictor, to persuade the court that there is a substantial case for permitting judicial review of a decision or step taken. However, if there is a dispute as to the facts on which the applicant bases the application for judicial review, if there are substantial gaps in the facts put before the court or if there are arguments to be put before the court as to why leave should not be granted in a particular case, it is vital that the court hears the other side at the time the application for leave is made so it can arrive at a balanced view and make the decision accordingly.
We should remember that the court is being asked at this point to decide that there is real substance on which to base the grant of leave to seek a judicial review. It is not enough that arguments which are merely plausible are offered, particularly when based on a presentation of the facts which can be expected to favour the applicant's side of the case. The purpose of the provision as a whole is to ensure that if the processing of a person's case, be that the consideration of a deportation order, the removal of an asylum applicant to another Dublin Convention country to have the application considered there or the substantive consideration of an asylum claim in the State, is to be delayed, perhaps for a considerable period of time, pending the outcome of High Court proceedings and possibly appeal proceedings in the Supreme Court, there are substantial grounds to justify that delay. This seems to be perfectly reasonable.
That being the case, it is important that the court should have marshalled before it, at the earliest point possible, all the relevant facts and the arguments of both sides so that it can decide whether the basis for any potential delay is substantial. It should not be the case that the first I, my officials, the refugee applications commissioner or the Refugee Appeals Tribunal know of an application for judicial review in these areas is from a report in the following morning's newspaper. The ex parte grant of leave to seek judicial review under present conditions means that, at a minimum, there is a delay of three weeks. The grant of leave ex parte in these cases at present is, it seems, appealable only to the Supreme Court. Such appeal proceedings could add considerably to the delay. Accordingly, in order that the High Court can arrive at a proper decision as to whether there is sufficient substance to the applicant’s argument to warrant postponement of further action on his or her case, it is essential that the court hears both sides on that aspect of the matter at the beginning.
I do not see why I or my successors should not be in a position to put forward a case if the applicant is entitled to do so. There is nothing wrong with that and it is a perfectly legitimate and reasonable position. It has been suggested that everyone will apply for judicial review. That is wishful thinking on the part of Deputies. However, let us say that argument was sustained and everyone applied for judicial review, it must then be clear to everybody that this makes the legislation all the more justifiable by ensuring that such applications will have reasonable or substantial grounds and the court will have the opportunity to consider both sides on the preliminary issue before deciding whether to grant leave to seek judicial review. I emphasise that the object of the exercise is not to close off access to the courts - the courts are open to everybody, citizen and non-citizen alike - but to ensure that the judicial process is not utilised in order to circumvent immigration law in secula seculorum.
Deputy Howlin, is it acceptable to discuss amendment No. 5 to amendment No. 15 with this amendment? Are they related?
They are two separate issues.
They seem to have been answered together.
It does not matter how often the Minister answers, it does not satisfy the points I am making. The problem is that the Minister is creating particular law to apply to asylum seekers, immigration matters and so on. If judicial law in general should be limited in the way he suggests for these matters, his case is sustainable. The problem is he is saying that judicial review in any case not involving asylum or immigration matters can be made on an ex parte basis. However, regarding this range of issues, it must be given on notice. That is the problem. Judicial review should have general application and should not be topped and tailed to suit particular areas of administration. It is clear the Minister will have ample notice of an application before any decision is made. What is at issue is whether he requires notice to be made before permission is given in the first instance to launch the case. This net question needs to be answered. Should the Minister require to be given notice before a court can decide an application can be opened? My answer is no because it does not apply in any area of law other than planning procedure. Why should it apply here? I have not heard a convincing answer.
Perhaps this argument will convince the Deputy. Almost uniquely, I would hope, the process of judicial review in cases dealing with deportation can delay a process for a considerable period of time. A delay in deportation carries with it enormous difficulties. I cannot think of any other process which is open to more abuse in our law in terms of ensuring that time passes - perhaps Deputies Howlin, Higgins, O'Sullivan, Barnes or the chairman can, but I cannot. The problem with immigration matters is that the delay occasioned by court proceedings can prejudice the outcome of the case itself.
Will the Minister explain that?
I will finish this point and then answer queries. Time is absolutely critical. For example, where a person is served with a deportation order, which is after the case has been heard in the first instance and has been heard on appeal, and the person decides that the best thing he or she can do to utilise the legal aid available - I have no objection to that - is to seek a judicial review, under the amendments proposed by Deputy Howlin earlier, the person would have six months to do so and three months under Deputy Higgins's proposals.
Not now.
Not now because the Deputy's proposals were defeated.
The Minister should not revert to them.
The fact that the game is over does not mean I cannot report on it.
I tried to keep to the Chairman's admonition that we deal seriatim with the proposals. If the Minister can range back and forward, so can we.
We will not replay the game if that is what the Deputy wants. The process is open to considerable abuse. That is not to say that other instances could not arise where a judicial review would be sought for reasons personal to the applicant but which might also be seen as an abuse of the process. There is no doubt that immigration is unique in this respect in that it is open to considerable abuse where people take judicial review proceedings ad nauseam. That interferes with the process because passage of time is extremely important in terms of immigration and deportations. Passage of time means that people can make the case that their situation has changed considerably since the first instance and that they should now be allowed to stay on other grounds.
I am trying to achieve a balanced and fair system. The Minister of the day is entitled to put forward his or her case, as is the applicant, on the basis of whether the individual has reasonable grounds for bringing judicial review proceedings. Otherwise, only one side of the case would be heard before the court. Obviously, if that happens, the most favourable grounds would be put forward by the applicant. It is unfair that the State should not be in a position to put forward its case. That is natural justice and is only right, especially when time is of the essence. That is the point, time is of the essence. There are cases where, although the court upheld the legitimacy of the deportation process, the people concerned could no longer be deported and had to be allowed to remain on other grounds or because they were now the parents of an Irish child.
Any person?
Yes. There is a constitutional obligation on the State which has existed since the Good Friday Agreement to recognise the birth of an Irish child as the birth of an Irish citizen, irrespective of who are the parents, and I have no problem with that. It was a statutory fact and is now a constitutional fact. It must be apparent at this point that, in the issue of immigration and deportation, we are not talking about——
This has nothing to do with the amendment.
I am trying to establish for the Deputy that, when he compares immigration and deportation with other areas, he does not compare like with like.
The Minister spoke long and well but ignored my amendment.
I did not.
There are connections.
I agree with that. However, the net issue is why an ex parte application would not be acceptable for a judicial review of this nature, especially when we have confined the period where a judicial review can be made to a mere 14 days. It is not a sufficiently important issue for me to labour that much, but I have not heard a compelling answer from the Minister why it should be that such an application would not be acceptable. I am always concerned when the Minister introduces extraneous facts such as, under the Good Friday Agreement, every person born here is an Irish citizen, so applicants should not be given too long to appeal because they might start begetting and then no one could be deported. Is that the subtext of what the Minister is saying?
No.
Why did he introduce it? It has nothing to do with the amendment.
I will tell the Deputy what is the subtext and what has been the policy from the beginning. It is simple and I will say it in one sentence. Any person who arrives in this country, is an asylum seeker and obtains refugee status is welcome to the asylum of the State, to its protection and to have all the rights of an Irish citizen, but those who are not deemed to be refugees are deemed to be illegal immigrants, and illegal immigrants must leave the State.
What has that to do with the introduction by the Minister of the argument about the Good Friday Agreement?
That is the policy. All other legislation, every other administrative measure and every other item which has been mentioned in the course of this and other debates is built upon that foundation because that is the policy. Many people inside and outside this House do not like that policy and, therefore, say there is no policy. That is not correct.
That is not being discussed at present.
Amendment, by leave, withdrawn.
I move amendment No. 5 to amendment No. 15:
In the fifth line of the new subsection (2)(b), to delete “are substantial grounds” and substitute “is an arguable case”.
I regard this amendment as extremely important because it determines the nature of the application to be made. The Minister proposes that such an application would have to state substantial grounds. The wording in the new subsection (2)(b) is “are substantial grounds”. I propose that that be deleted and that the wording “is an arguable case” be put in its place. Normal judicial review is based on an arguable case. The Minister is repeatedly defining a specific framework for judicial review which has application only for asylum seekers. We have begun to get a glimmer of the Minister’s thinking as to why a specific form of law should apply only to these people. His references to the Good Friday Agreement and that children born here are Irish citizens might give us some insight into his thinking on that. My argument sustained through all the amendments I have tabled is that the regime for judicial review should have uniform and universal application to all human beings. There is not a sustainable, arguable or defensible case or, more importantly, a constitutional case to take that argument from me.
In so far as Deputy Howlin tried to stick to the amendment, I gather the Minister's reply might try to do so also.
I will try to stick to the amendment, sorely tempted as I am to do otherwise. This amendment is opposed. The continued processing in the immigration or asylum area should not be delayed by the existence of court proceedings unless there is a substantial, not merely an arguable, case to be made which would justify such a claim. I pointed out in my opening remarks that the courts have already given dicta on the meaning of the phrase "substantial grounds" in similar statutory contexts. The effect of the judgment to date is that the grounds in question must be reasonable and weighty and must not be trivial or tenuous. It has also been determined by the courts that, no matter how important an issue may be involved, a ground cannot be substantial if it cannot succeed. These clarifications by the courts of this expression confirm the appropriateness of "substantial grounds" as distinct from a merely arguable case as a basis for allowing court proceedings to delay the progress of specific immigration or asylum cases.
Let us take, for example, the deportation process under the Immigration Act, 1999. That Act sets out a step-by-step process for dealing with persons who are liable for deportation, a process which culminates either in the making of a deportation order or permission to remain in the State being given or renewed. The steps are in broad terms as follows. First, the person is formally notified that deportation is under consideration, told the reasons it is being considered and invited to make representations as to why a deportation order should not be made. Once the time is up for making representations, the Minister must consider all aspects of the case, including matters for consideration under section 3(6), taking into account whatever representations have been made. Then if the Minister decides the person should leave the State a deportation order is made and the person is notified of that order and told to report to the authorities on a specified date so that departure can be arranged. That process is generous and affords the person in question the opportunity to make the best case possible to the Minister of the day and for the Minister to take that case into consideration.
The typical duration of this process from start to finish is 11 weeks, just under three months. The person in question can, at any stage of the process, seek a judicial review of the steps taken thus far in the case. If it is determined in the High Court that there has been a procedural defect in the processing of the case, the existence of judicial review proceedings could postpone the final outcome for several months or, in some cases, two years, based on current experience, regardless of whether there was a procedural defect.
Under the Government proposal, the careful and painstaking process leading to the final decision, whether to deport or otherwise, will be held up only in cases where the court is satisfied that there is a substantial case to be made that the step under challenge is procedurally unsound. That is a sensible basis for permitting delay in the process and ensuring there is no unfair treatment of the individual concerned. Deputy Howlin's amendment seeks, in effect, to retain a law in immigration and asylum cases which applies to all kinds of unrelated cases. The intention of that law, in my view, is unwarranted in immigration and asylum cases for the reasons I have given. The law would be better upheld on the basis of specific substantial grounds which the Government reforms propose. The amendment is unsustainable by reference to the facts.
Whether it is I or another Minister who is involved, nobody likes to deport people. That is not a pleasant business and most of the people we are talking about here are vulnerable and unfortunate. However, the difficulty I have is that I have a constitutional obligation in relation to the borders of the State and the economy. Whether I or someone else is in that position the constitutional obligation remains the same. It is very easy to fire balls in from the sideline, but if one is on the pitch it is a tougher game.
The Minister was great at flinging balls from the sideline in his day, as Deputy Owen would remind him.
She held a good few of them.
A Deputy
Deputy Howlin is not so bad himself.
I have been on the pitch a few times too and hope to tog out again.
I feel very left out.
Not if you are the vice-captain.
The Minister has made his pitch, which is that he wants to devise a particular code of law which will apply to immigration and asylum matters that is different from all others. I think that principle is wrong and one the courts will not sustain, but that can be determined elsewhere. He has given his views and there is no point in my arguing the matter further.
Amendment put and declared lost.
I move amendment No. 6 to amendment No. 15:
To delete the new subsection (3).
This relates to the Minister's proposal to restrict the right of appeal to the Supreme Court, which is particularly unacceptable. It is the first time I am aware of a Minister trying to cut back the right of appeal in any area other than a technical or administrative one, which this is not. This is a matter of people's rights and the vindication of bodily integrity, which is of the utmost importance and in the prime category of rights. The Supreme Court must be able to deal with the constitutional and legal rights of non-nationals and this provision is designed to obstruct and prohibit the Supreme Court from having that right. I am advised that it is probably unconstitutional for that reason and do not know why the Minister wants to do this other than for the reason he gave when stating he wanted a definitive decision.
To say that one abolishes the right of appeal to have certainty in the decision, which is what the Minister argued initially, is a flawed argument. It is an argument against any appeal process, which would be unconstitutional. Again and again the Supreme Court has decided that there must be appeals processes and even on judicial review there must be a mechanism for appeal. That is built into the system and applies in all normal cases. However, the Minister has decided that for this particular set of administrative actions there will be no appeal but a 14 day period in which one can state a substantial case to the High Court and it can make a definitive decision which is unappealable. That is wrong and the Supreme Court will take a dim view of the Minister's attempt to limit its functions and rights to protect anybody's right, national or non-national, to overlook administrative action.
The Minister is arguing from the point of view of tampering with judicial process. He is arguing that the judicial review procedure has been characterised by abuse from people who have resorted to it from time to time. Yet he is saying that someone applying for asylum here is not to be given the same privilege of abusing it if that is what they want to do or to be given access to it. The Minister is not alone determined to reduce the time to 14 days but, as Deputy Howlin said, from the point of view of not allowing an ex parte application, is determined to put his team in court to, effectively, block the right of access to judicial review. That is the purpose of putting in the ministerial team and having legal representation there, to point out that the application was turned down on appeal and that there is, therefore, no grounds for allowing access to a judicial review. That is presumably to be the purpose. Not alone is the Minister determined to reduce the time to 14 days and to put in his judicial team to block the right of access to judicial review, he is now determined to remove the final court of appeal, the Supreme Court, from the unfortunate asylum applicant. As Deputy Howlin said, I am absolutely convinced that when the courts look at this they will see their functions cut across severely by the Minister, and that is why we have jointly tabled this amendment.
There is an infringement here of judicial independence and the rights of courts to make their own decisions. That is highly dangerous and very questionable.
It is a rare Bill that somebody does not refer to as unconstitutional. If fears about the Constitution were paramount, very few laws would be passed. I have learnt that much in 13 years in the Dáil.
The amendment is opposed. Subsection (3), which the amendment proposes to delete, confines the right of appeal to the Supreme Court and judicial review of asylum or immigration matters to cases where the High Court certifies its decision concerning a point of law of exceptional public importance and an appeal to the Supreme Court would be desirable in the public interest. It is not, therefore, correct to say that the Supreme Court is being blocked off. The appeal will lie in a point of law being of exceptional public importance and where an appeal to the Supreme Court would be desirable in the public interest. The provision applies to decisions of the High Court to grant or refuse leave to apply for judicial review, which would arise at the earliest stage of the judicial review process, and also to decisions of the High Court on the merits or otherwise of the judicial review application.
Let us consider the words used in the subsection and their precise application to the cases in question. First, let us consider the situation of a person liable to be deported who goes to the High Court claiming that the procedure leading to the deportation order was flawed in some respect. In order to get beyond first base, the potential deportee has to show the High Court that there are substantial grounds for the assertion and, because the application is not ex parte, the Minister is in a position to put counter arguments and factual clarification before the court. Having heard both sides on the preliminary issue the court should have a good basis for its decision. If the court decides that there is substantial grounds for arguing that the deportation procedure is flawed, the Minister, if he is not happy with that decision, can seek leave to appeal it to the Supreme Court. This subsection stipulates that, in those circumstances, in order to be given leave to make such an appeal, the Minister must persuade the court that its decision involved a point of law of exceptional public importance and that it is desirable in the public interest that the appeal is heard.
Similarly, if the High Court has refused the application for leave to seek judicial review, it would be for the applicant to demonstrate to the court that these two conditions were met in order to be allowed to appeal. This is a perfectly reasonable restriction on the right of appeal in circumstances where the High Court has heard both sides of the case. In other words, what is sauce for the goose is sauce for the gander.
Let us consider the subsection as it will apply following substantive consideration of the judicial review. The High Court would have arrived at a decision following full exposition of the facts of the deportation process as applied to the case, including all documentation. It would have heard both sides of any dispute as to the facts of the case and both sides of any detailed legal arguments on the issue of whether there was a flaw in the procedure. If, after all that, the Minister or the person in question is dissatisfied with the High Court's decision - I do not consider that unreasonable - it should be for the Minister or the person seeking to appeal that decision to the Supreme Court to show the High Court that there is a point of law of exceptional public importance and that an appeal would be in the public interest.
The constitutional position is clear. Article 34.4.3° stipulates that the Supreme Court's appellate jurisdiction from the High court is with such exceptions and subject to such regulations as may be prescribed by law. This subsection is an exception or regulation. The protection under the Article for appeals involving constitutional issues is reflected in paragraph (b).
I am of the view that the appeal provision in subsection (3) is in line with the intention earlier in the provision to ensure, consistent with the interests of justice, that the pursuit of court proceedings will not unnecessarily delay the processing of cases in the immigration and asylum areas and that the interests of the public generally will be served by the retention of this section.
I wish to make it clear that there is no question of a person's bodily integrity being at issue in any case to which this proposal applies. The question at issue in a case of judicial review is whether there was a procedural defect in the process in the immigration or asylum areas. If there is any question of interference in the constitutional rights of the individual, that would be exempted from this appeal provision by Article 34.4.3° and by subsection (3)(b) of the amendment. I reject any notion that a person’s bodily integrity or human rights are being interfered with because judicial review is about whether the procedures were properly applied. That is the issue. It is not a re-hearing of the case.
Deputy Higgins in particular seemed to suggest that the individual would not be given the opportunity of putting forward grounds for appeal in the High Court. That right never existed and I cannot take away something which never existed. The issue is the procedures and not the grounds which have already been decided. If the Supreme Court is to be appealed to on an issue relating to procedures, surely it is perfectly reasonable that the issue should be of considerable public interest and that it should involve a point of law. There is nothing wrong with that.
I never suggested that there was rampant abuse of the judicial review procedure. However, I made it clear that the potential exists. It is not a question of referring the substantive case to the final court of appeal. I am not preventing the substantive case from going to the Supreme Court for the simple reason that the right did not exist in the first instance where judicial review is concerned. I am not preventing anyone taking a constitutional action and this legislation will not do so either. I am trying to ensure that the judicial review procedure is such that it will not be open to the kind of potential for abuse which currently exists. That is what I am doing concerning this section and I see nothing wrong with that.
The Minister's reply is a little disingenuous. He is creating a particular process that applies to this category of administrative decision. It is more than a little disingenuous to talk in terms of the protection afforded by subsection (3)(b) to a person’s constitutional rights. Subsection (3)(b) in the Minister’s amendment suggests that this subsection shall not apply to a determination of the High Court in so far as it involves a question of the validity of any law, having regard to the provisions of the Constitution. The subsection refers to an application to test the constitutionality of law, not the actual exercise of any constitutional right. Are we to applaud the Minister for allowing the Supreme Court to ensure that the law is constitutional? It is not for him to try to delimit the Supreme Court’s constitutional right to determine the compatibility with the Constitution of any enactment of the Oireachtas. That is what it is there to do. I do not give the Minister great kudos for acknowledging this in the subsection and I do not accept that this goes beyond that, if my reading of plain English is right. Perhaps the Minister would revisit this issue. In terms of the net issue of my amendment, it is wrong to delimit people’s rights. The Minister is determined to do so and there is no more to be said.
I cannot say any more without delaying the matter.
What about the net issue of subsection (3)(b)?
I have made the position clear concerning what the Supreme Court would be in a position to hear as regards judicial review. If there is an argument concerning a judicial review, it should be a matter of public interest and importance and be on a point of law. I am not seeking applause.
The Minister dismisses the notion that bodily integrity would be involved because this is not an appeals mechanism. That is disingenuous.
It is not disingenuous.
Let me try to explain why.
The Deputy will have to engage in terminological gymnastics to do so.
No, I will be succinct and clear. The Minister is clearly better at broadcasting than receiving. Perhaps he should adjust his antennae to reception mode.
Let us stick to the amendment, Deputy.
This issue has implications for bodily integrity. If there is a belief that due process was not carried out and the consequence of that flawed process would be to deliver an asylum seeker into peril, surely that involves the preservation of bodily integrity?
How could an asylum seeker be put into peril when they cannot be the subject matter of the application? The subject matter of the application must be a deportee.
That is the greatest form of tautology and disingenuousness
No, it is not. It is very important.
Not at all. I wish to return to this net issue which is of fundamental importance.
It may be, but it is not relevant to the amendment.
I respectfully submit that it is most certainly relevant.
Perhaps the Deputy will return to it when discussing the section.
I do not want to leave the point the Minister has made. He has responded twice and I have not reacted yet.
The Deputy is doing it all day. I have to intervene as well now and then.
The essential point made by the Minister concerns when an asylum seeker is not an asylum seeker. The answer the Minister has given is when a decision is being made on appeal. If the mechanism making that determination is flawed and the decision is overturned by the superior courts, the person may well be an asylum seeker. Therefore, it is tautology to suggest one can suddenly become an illegal immigrant if the mechanism which made the determination is in error. It is tautology for the Minister to wed his case to that particular Jesuitical definition and it exposes the inadequacy of the Minister's argument.
Amendment put and declared lost.
I move amendment No. 7 to amendment No. 15:
In the first line of the new subsection (5), after "may" to insert "with the concurrence of the Minister".
My understanding is that the Superior Court Rules Committee normally requires the Minister's consent. Subsection (5) of the Minister's amendment as drafted states: "The Superior Court Rules Committee may make rules to facilitate the giving of effect to subsection (4).” I am suggesting that the norm for making such rules is that they have the concurrence of the Minister, something I thought would be of assistance to the Minister. I assumed it was an omission from the drafting. I hope this isnot too complicated for the Minister to understand.
Deputy Howlin correctly points out that this is already contained in the Courts of Justice Act, 1936, which set up the Superior Court Rules Committee. The rules of court are made by the committee but with the concurrence of the Minister. Therefore, there is no necessity for Deputy Howlin's amendment. Such provision has not been included in any other Act. What normally happens is that the 1936 Act applies.
The practice in Bills I have dealt with, in government and in opposition, has been that where an implication in an existing statutehas an effect in terms of the clear reading of new legislation, the provision is inserted in the new Act. I do not know whether the Minister agrees with that principle.
Amendment No. 7 to amendment No. 15, by leave, withdrawn.
Question put: "That the new section be there inserted".
The Select Committee divided: Tá, 8; Níl, 7.
Tá
- Ardagh, Seán.
- Brady, Martin.
- Coughlan, Mary.
- McGennis, Marian.
- McGuinness, John.
- O’Donoghue, John.
- Power, Seán.
- Wright, G. V.
Níl
- Barnes, Monica.
- Higgins, Jim.
- Howlin, Brendan.
- Naughten, Denis.
- Neville, Dan.
- O’Sullivan, Jan.
- Perry, John.
Question declared carried.
Sections 4 to 6, inclusive, agreed to.
NEW SECTION.
Chairman: Amendments Nos. 16 and 18 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 16:
In page 6, before section 7, to insert the following new section:
7.-The Refugee Act, 1996, is hereby amended-
(a) in section 13(3)(c) (inserted by the Immigration Act, 1999), by the substitution of ’15 working days’ for ’21 days’,
(b) in section 16(3), by the substitution of ’13(3)(b)’ for ’13(2)(b)’,
(c) in the Second Schedule (inserted by the Immigration Act, 1999), by-
(i) the substitution in paragraph 1 of '5 years' ' for '10 years' ', and
(ii) the substitution of the following paragraph for paragraph 2-
'2. (a) The members of the Tribunal shall be appointed by the Minister.
'2. (b) A person shall not be appointed to be the chairperson unless the Civil Service Commissioners, within the meaning of the Civil Service Commissioners Act, 1956, after holding a competition under section 29 of that Act, have selected him or her for appointment to the position.’.”.
The purpose of this amendment is to make some technical adjustments to the Refugee Act, 1996, as amended by the Immigration Act, 1999, in preparation for its coming into effect shortly. The work necessary to bring the Act into operation is well advanced, the process of recruitment for the posts of refugee applications commissioner is under way and selection interviews will be held during the week after Easter. The advertisement for the position of chairperson of the Refugee Appeals Tribunal will be placed in newspapers in the coming weeks. The regulations required to spell out the detail of the Act's operation are being drafted and, on this basis, I expect to make commencement orders for the Act during May.
Details of the technical changes proposed in this amendment are as follows. The purpose of paragraph (a) is to ensure that the time after which the refugee applications commissioner must notify the Minister of a recommendation is expressed in working days and is consistent with the expression of other time limits in the Act.
Paragraph (b) ensures that section 16(3), which deals with the manner in which an appeal is to be brought against a negative recommendation of the commissioner refers to the appropriate subsection of section 13 which relates to the notice to be sent to the applicant regarding the right to appeal.
Paragraph (c) makes changes to the Second Schedule of the Refugee Act which deals with the membership of the Refugee Appeals Tribunal. The first of these changes in subparagraph (i) is designed to reduce from ten to five years the period of legal practice required for appointment as a member of the tribunal. The Refugee Act, 1996, as amended by the Immigration Act, 1999, provides for appeals to be heard by one of several members of the Refugee Appeals Tribunal, each one a lawyer of at least ten years’ experience. An independent system of appeals is currently in place pending the implementation of the Refugee Act and that system is based on the provisions of the Refugee Act.
Failed applicants at the first stage of the asylum process must be afforded the opportunity of having their appeals heard at the earliest opportunity. One of the measures being taken to improve the efficiency of the application process is an increase in the number of appeals authorities. Six new appeals authorities have already been appointed. bringing the total number of appeals authorities to nine. However, the panel of persons available to serve as appeals authorities still needs to be substantially increased in order to provide an effective and efficient service to asylum seekers.
Difficulties have been experienced in recruiting a sufficient number of people with ten years' experience to serve as appeals authorities. In order to facilitate the recent recruitment of appeals authorities, I have reduced the legal practice requirement to five years under the current administrative arrangements. This amendment should help to ensure that these difficulties will be alleviated for recruitment to the tribunal under the Act and should ensure that persons of appropriate experience can be appointed to the appeals tribunal. I intend to establish a large panel of appeals authorities and I am grateful to current and former authorities for exercising their functions in a most independent manner, as is only proper. A correspondingly large membership will be appointed to the Refugee Appeals Tribunal to ensure that sufficient numbers are available to provide an effective and efficient appeals service at all times. The reduction of the legal practice requirement to five years will facilitate this and will attract sufficient numbers of suitably qualified and interested people to these part-time positions.
The other amendment to the Second Schedule proposed in subparagraph (ii) relates to the replacement of paragraph 2 of the Second Schedule. The purpose of this technical change is to clarify that the members of the tribunal are to be appointed by the Minister and that the appointment of the chairperson, a full-time post, will be made on the basis of a competition run by the Civil Service Commission. While the post of chairperson is not a Civil Service post, the commissioners have power under section 29 of the Civil Service Commissioners Act, 1956, to carry out a competition acting as a recruitment agency. The commissioners have been asked to arrange the necessary competition on this basis and, as I stated previously, the advertisement is due to appear in the national press within the coming weeks.
Amendment No. 18 is a related amendment which makes the necessary changes to the Long Title of this Bill. The passage of these amendments will facilitate from a technical point of view implementation of the Refugee Act, 1996, which has been the aim of Government policy since our coming to office in mid-1997. This is a personal ambition of mine as evidenced by the inclusion in last year's Immigration Act of extensive changes to make the 1996 Act workable. In respect of the Refugee Act, 1996, I often see a quote attributed to me as being in contradiction of my current policy. The quote which refers to the plight of Irish people as refugees is as pertinent today and one which I support as much today as when I made it.
On a point of information, regarding the amendment which reads, "2. (b) A person shall not be appointed to be the chairperson unless the Civil Service Commissioner, within the meaning of the Civil Service Commissioners Act, 1956, after holding a competition under section 29 of that Act, have selected him or her for appointment to the position", does that mean the chairperson will be a civil servant or a servant of the State and will not be independent?
While the post of chairperson is not a Civil Service post, the commissioners have power to carry out the recruitment process on an agency basis. They have been asked to prepare the competition on that basis. I expect the appointment will be advertised in the national press in the next couple of weeks. This will probably receive widespread welcome because it is important that it takes place.
It will not be a civil servant?
No, anyone can apply. Perhaps Deputy Barnes is considering applying.
Will the remuneration be attractive?
It will be much more than the Deputy is receiving at present.
What is the salary scale?
I do not know but, as I said, it will be much more than Deputy Barnes is receiving. It will be commensurate with a position of that nature. It is an important and onerous position, particularly in the current climate.
I welcome the amendment. What is the timeframe for implementation of the Refugee Act? On the functioning of appeals authorities, there is a problem in that there is no set working pattern or hours for members of the appeals authorities as they are part time? Is there a prescribed number of hours or cases and how will this work? Having a defined number of appeals authorities is meaningless unless we know the time available to carry out the work. Has the Minister a view on the optimum time for determining applications ab initio and determining appeals and how long it will be before this optimum is arrived at?
I also welcome the section. The addition of appeals authorities is to be welcomed. How many officials are involved in processing applications in the first instance and where will the appeals authorities be located? In other words, will appeals authorities be located throughout the country or will they all be Dublin based?
On the timescale for the implementation of the Refugee Act - I refer to the implementation of all the Act because some of the provisions are already in place - my objective is to have it fully operational some time in May.
All sections?
Yes, but this is contingent upon various other aspects taking place. However, that is my objective, particularly in relation to the recruitment of those concerned under the legislation. My best assessment is that the processing of applications and appeals can be reduced to six months.
Inclusive of appeals?
Yes. It is an ambitious target but that is the objective of the exercise and it is crucial that we succeed.
By when?
That depends on the staff. In 1996 there were four staff and in 1997 there were 22 staff dealing with the issue. After I became Minister, the Government approved a proposal for the recruitment of an additional 72 staff to help deal with the backlog and the increasing number of new cases. In July 1998 the Government approved a further 72 staff and in December 1999 I received sanction for an additional 120 staff.
How many staff have been appointed?
Ninety of the 120 staff have been appointed and the others have also been appointed. This represents the largest allocation of staff resources in any area of the Civil Service since the Government took office. This underlines the priority the Government is attaching to the issue of processing people's claims. This is very important from the perspective of the refugees. The fact that so many illegal immigrants are in the system is causing severe difficulties for the refugees who must queue with everyone else. This is unsustainable and something about which I am very concerned. Given our obligations under the Geneva Convention, I and refugee councils are concerned about this aspect.
Are the appeals authorities working——
The appeals authorities are appointed on a non-partisan basis. They allocate their own time to the amount of work they do and they are very experienced. Mr. Barnes, the former DPP, is a member at present, as is Judge de Lapp. I am grateful for their services as they are people of considerable experience, as are all the others. They deal with the issue as they see fit. They do not work specific hours but I am satisfied they are getting the job done.
Are they all based in Dublin?
Some may not be based in Dublin but I think they must work there. However, the majority are based in Dublin.
Amendment put and agreed to.
Sections 7 and 8 agreed to.
SECTION 9.
I move amendment No. 17:
In page 6, after line 38, to insert the following subsection:
"(3) An order under subsection (2) shall not be made unless and until orders have been made bringing all provisions of the Refugee Act, 1996, into force.”.
The amendment seeks to ensure that the protective regime envisaged in the Refugee Act is complete and in force. The Minister indicated that it is his intention to have it fully in force by May. Therefore, he should have no difficulty accepting the amendment.
The amendment is opposed. The effect of this amendment is to link the introduction of criminal measures aimed at those who exploit human misery to the establishment of a statutory scheme for processing asylum claims. The cynical exploitation by criminals for fat profits of the desires of people in difficult circumstances to better themselves is going on as we speak. It must be dealt with and we must send a message to such people that their profiteering off the backs of the vulnerable will not be tolerated by Irish society. There is no reason the sending out of that message should have to await the recruitment of a refugee applications commissioner or the other elements being put in place by the commencement of the Refugee Act. There is no functional link between the two. The linking of these two essentially unrelated matters will send entirely the wrong message to those seeking the protection of the State. It would suggest there is nothing wrong with ripping them off at present and only when current administrative arrangements are replaced by the statutory scheme will the exploitation of such people become a crime.
If the aim of this amendment is to create an incentive for the early commencement of the Refugee Act, it is neither an effective nor necessary means of achieving that end. Moreover, such motivation, by calling into question my commitment to achieving that end, despite the fact that I have repeated it on numerous occasions, would be offensive.
The Minister managed to say that with a straight face.
The work of preparing for commencement of the Refugee Act is well under way. I do not need a carrot or a stick to fulfil the Government's commitments. It does not make sense to tie the judicial review procedures to the commencement of the Refugee Act, as I set out in considerable detail when we debated the matter. The judicial review provision is drafted in such a way as to apply the current administrative asylum procedures, the current Dublin Convention process and the immigration related processes which allow for the refusal of leave to land and deportation. The statutory process under the Refugee Act, including the new Dublin Convention procedures under the Act, will commence so there is no reason the criminalisation of trafficking in people should be tied into a judicial review of steps in the asylum process or immigration procedure.
I am anxious to see the Refugee Act commence. That is the point of the amendment but I am disconsolate that it trampled on the fragile ego of the Minister.
I am a sensitive soul.
It causes me great grief to see the Minister so hurt.
I am glad my sensitivity has been realised.
I will not push the amendment because I accept the Minister's word that the Refugee Act will be fully implemented by May. We will return in June if that is not the case - not that I would doubt the Minister for a minute or he might be crushed entirely by such a cruel comment.
The Minister mentioned the Dublin Convention in relation to the amendment. Is the Dublin Convention an effective mechanism to achieve the objectives set out in the Schedule to the Refugee Act? How many non-nationals have been repatriated to other EU countries on foot of the convention to date?
The Dublin Convention has not been as effective as we would have wished. It is partially effective but we are taking in more under the convention than we are sending out even though there are no direct flights from most of the countries from which we are taking asylum seekers at the moment, except one a week from Romania.
How do we take in anyone under the Dublin Convention? Are people asserting that Ireland is their first port of entry?
The British Government would wish that a person who arrives here first and then goes to Britain for a couple of weeks and makes an application there would return to this jurisdiction. Romania and Nigeria are the two main countries from which asylum seekers in the State come but there are people coming from several other countries. The Dublin Convention has been effective to an extent. The fact that the High Court was dealing with the Laurentiu case had a bearing on this as well so it may not be a fair assessment to judge the situation in the light of what happened last year. The European Commission plans to revisit the convention to see how it can be more effective. Commissioner Vitorino made that clear.
Does the Minister know how many people have been sent back on foot of the Dublin Convention? Articles 3 and 6 of the convention make it very difficult to determine that an applicant has crossed the border irregularly in a particular member state before he can be repatriated. This area must be revisited at European level.
It also must be revisited at domestic level. It is true that it is difficult to utilise the Dublin Convention effectively at present. When the exchange of fingerprints across the European Union comes into force it will then be effective. Equally, if finger printing can be introduced here and arrangements are made with Britain, it will be possible for both jurisdictions to compare finger prints. There would be a bilateral agreement to do that. Then the Dublin Convention could be ratified. Finger printing can be introduced subject to regulation under the Refugee Act.
Amendment, by leave, withdrawn.
Section 9 agreed to.
TITLE.
I move amendment No. 18:
In page 3, lines 6 and 7, after "IMMIGRANTS" to insert "AND TO AMEND THE REFUGEE ACT, 1996,".
Amendment agreed to.
Title, as amended, agreed to.