I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials to the meeting, the purpose of which is to consider Committee Stage of the Immigration Bill 2002.
Immigration Bill 2002 [Seanad]: Committee Stage.
I welcome the Minister and his officials. I would like to put a few things in context before we begin our Committee Stage discussion. This Bill was published in February 2002 and was debated in the Dáil and the Seanad in that year. The Minister indicated that substantial amendments would be forthcoming after they had been cleared by the Cabinet. The amendments did not appear until very recently. They were seen initially in heads of amendments, and the draft amendments then appeared in the Attorney General's text. The final amendments appeared yesterday, 23 June. Some 32 pages of amendments had been produced by 16 June and 47 pages by 20 June. The consolidated amendments have now been published over 22 pages. When one considers that the original Bill was 14 pages, it is clear that the volume of amendments is very substantial.
I have tabled 114 amendments, some of which are amendments to the original Bill as drafted, which has been amended by the Employment Permits Bill 2003, which deleted a major section of it. Some of my amendments are amendments to the Minister's amendments. We are like the legendary Irish dog that goes around chasing its tail, given that we have heads of Bills, the Attorney General's text, amendments and amendments to amendments. These matters could have been considered in due time and with due process. A person with the experience of the Minister, a former Attorney General, should be well aware of the procedures that are involved. The Bill, which was introduced in February 2002, is the subject of sweeping and substantial changes in the form of amendments which were circulated this week. Deputies are expected to analyse these amendments in a couple of days in order to finalise the legislation.
I have received letters from Mr. Maurice Manning, the chairman of the Irish Human Rights Commission, and Ms Mella Magee of Amnesty International. Many other organisations, such as the Irish Council for Civil Liberties, the Irish Refugee Council and Comhlámh, are seeking a deferral of the Committee Stage debate on the basis that they have not had an opportunity to study the far-reaching amendments. Some organisations, such as the Irish Human Rights Commission which was established recently, are particularly charged with rights-proofing legislation going through the Oireachtas. Such bodies will not have an opportunity to consider the amendments or to make oral or written submissions of a proper nature. The trade union movement e-mailed me today to communicate its concerns in relation to major aspects of the Bill. There can be no doubt that the Bill is quite controversial.
I propose that we defer the debate on the amendments until we hear from the organisations, which should have an opportunity to study the proposals. Members of the committee have had a very limited period of time in which to study the proposals. Some of the amendments appeared yesterday but I did not receive the final list of amendments from the Minister until this morning. It is not a good way in which to conduct business. I say this in relation not only to the Opposition, but also to the Government side of the committee.
Two Bills of major substance will come before this committee this year. I refer to the Immigration Bill that deals primarily with carrier's liability and amendments to the Refugee Act and, second, the Intoxicating Liquor Bill. These are major items of legislation. We cannot do justice to what is, effectively, a new Bill in the short time allocated. We can adjourn proceedings under Standing Orders and defer the debate on these amendments in order to give us an opportunity to tease out the legislation. This would also facilitate those organisations that have written to us requesting such a deferral by giving them an opportunity to be heard and to make submission either orally or in writing. Otherwise, the result will be flawed legislation.
Will the Chairman agree to a deferral of proceedings and that we should write to the organisations to invite submissions?
I strongly support Deputy Costello's call for an adjournment of proceedings and a motion of deferral of this stage of the legislative proceedings. This is a major issue and, as a newly elected Member of the Oireachtas, I feel I am being put under pressure. I have not had an adequate opportunity to prepare. The issue of immigration is an important one from both a national and international perspective. It has civil liberty implications.
I am disappointed and annoyed that the final amendments arrived only yesterday. I am most concerned at the manner in which the Minister is trying to rush the legislation through. I hope that he will listen to the human rights groups. People have major concerns and their voices need to be heard. We are trying to represent such people.
We have facilitated, in every way possible, all of the groups with an interest in this matter, the ICCL, Amnesty International, the Irish Human Rights Commission and the Irish Refugee Council. I accept what Deputy Costello said in regard to the amendments not being available when these bodies made their submissions. However, they received a good hearing from this committee and we took on board their views on the immigration rules which are currently in place. Those views were passionately expressed. It was useful to have the input of those groups, which gave members an indication of their thinking about immigration matters in general. While it is regrettable that we do not have time to allow everybody to come before the committee again, as a committee we have a responsibility to the State to legislate. I understand the Deputies' concerns in this regard, but we must move on.
To some extent the parliamentary year operates on an artificial basis. We come up to lengthy holiday periods and the like during which legislative business cannot be done. The legislation with which we are dealing is urgently required. It is not some kind of long-term revision of existing provisions. We are badly in need of this legislation.
On 10 April 2003, speaking on my behalf, the Minister of State, Deputy Brian Lenihan, clearly signalled the content of the proposed Committee Stage amendments and their underlying rationale. On 13 May 2003, the Government approved the heads of the Government amendments to the Bill and drafting was already under way. On 26 May 2003, the Second Stage debate concluded. On 16 June 2003, I supplied copies of the heads of the Government amendments to Opposition spokespersons and to members of the Select Committee on Justice, Equality, Defence and Women's Rights. On 20 June I supplied texts of the Government amendments as drafted in the Bill's office to Opposition spokespersons and members of the select committee.
On the morning of 23 June I published a 64-page explanatory memorandum, the intention of which was to enable everyone to understand the rationale behind the amendments rather than throwing them out of context. My officials worked long and hard to create that document. Nobody can complain that they did not know what the amendments were, or that they were difficult. This was an unprecedented step to provide to committee members a document which put each and every phrase in context. Yesterday afternoon, my officials sent everybody here the written offer of a briefing. The offer is still open to anyone who might wish to have it.
This is urgent business from a number of perspectives, not simply because of the time we have arrived at in the Dáil year. The question of asylum seeking and its proper regulation is one which in certain contexts is a matter of life and death and in other contexts is a matter of serious consequence for the country and for people involved in the asylum process.
We live in a world of limited resources and €15 million would have a dramatic effect on the area of intellectual disability. We estimate that we are spending €350 million per annum on asylum seeking as a phenomenon. That has implications for overseas development aid and other social programmes at home.
This measure proposes to bring integrity to the process, to sort out as best we can the genuine asylum seeker from the non-genuine one. We need to make the system work and stop the abuse of the system which is taking place.
I am willing to explain each amendment at great length and to discuss it with the members of the committee, but I do not believe it is appropriate to defer this stage and go back into consultation with NGOs and other interested parties. This is urgent business. Since being appointed Minister, I clearly signalled that I would bring legislation such as this into operation. It is now a year since my appointment. I have been constantly criticised by people alleging that while I talk the talk I do not walk the walk. Every time I table amendments to legislation which was already in the pipeline, I am accused of legislating by stealth because there has not been a Second Stage debate.
I have an ambitious legislative programme and I fully support consultative processes by committees with NGOs and the like. It enriches the parliamentary consideration of legislation. The pace, however, has to be an exacting one because the problems are exacting. I say to Deputies Finian McGrath and Costello that one has to keep up with the pace here. One cannot lag behind. The pace is set by this side of the House. Being criticised alternately for going too fast and going too slow is something with which I can cope. I have broad shoulders and a thick enough skin. I can take it, but in regard to this matter I must reiterate that the legislation is urgently required.
People are looking to this House to legislate in respect of this area and we cannot afford a further deferral. If this committee were to defer the passage of the legislation it would get sucked into the budgetary period before Christmas and would not be enacted for a further six to eight months. If we do not proceed with this business now there will be a long delay. The committee has had the opportunity to consult with all the relevant NGOs and knows their attitudes on these issues. That is something to be borne in mind.
I am prepared to deal with Deputy Costello's 110 amendments, which he submitted on Monday. Since I am willing to deal with those, he should be willing to deal with my amendments. I am not saying I have not had time to consider his amendments - I have. Accordingly, if he has 110 amendments, which we received on Monday——
I have 114 amendments.
If the Deputy has 114 amendments, which were submitted on Monday and with which I am expected to deal, as compared to my 21 amendments, I am indeed walking the walk rather than talking the talk.
I wish I had the Minister's staff to deal with amendments.
They have offered their services to the Deputy in that regard.
That was only this morning.
This morning was a little short. It would be very useful to have a few of the Minister's staff while he is putting all of us through our paces. There is no criticism of the committee Chairman or the secretariat in relation to facilitating this legislation. I am not proposing a deferral simply on account of my amendments but because this is such important legislation. The Minister has said it is urgent. If so, what is the reason we have had to wait until now, following the introduction of the Bill in February 2002? The Minister has had 12 months or more under his belt but we did not see sight or light of the amendments until this month. The matter we are discussing is urgent, but the Minister has not shown any sense of urgency.
I regret to have to say the Minister is introducing legislation by stealth through amendments. The Criminal Justice (Temporary Release of Prisoners) Bill was a disgraceful example of introducing new legislation by grafting it on the so-called Schengen acquis and the Council of Europe protocol, as the Minister attempted to do, without a Second Stage debate. Thankfully, the Minister did not proceed with that, due to whatever intervention took place in the background, perhaps by the Taoiseach.
We are speaking of procedures which the Minister, above all, understands. I do not object to working late into the night, dealing with procedures. However, I have received a letter from the chairman of the Irish Commission for Human Rights, stating that he first learned of these amendments through The Irish Times. Nobody sent a copy of the amendments to the Irish Commission for Human Rights. The letter is quite short. It states:
We are aware, from last Wednesday's issue of The Irish Times, that the Government has introduced a range of amendments to the Immigration Bill which would alter the character of the Bill. We would, therefore, like the opportunity to make considered observations to the committee on the subject. While we acknowledge with thanks the recent opportunity given to the commission to make a presentation to the committee on the Bill, these amendments appear to raise quite different, but very important issues which we would like to address from the human rights perspective.
I am informed that the committee is to consider these amendments next Tuesday and that, furthermore, the actual text of the changes will not be available until next Monday or Tuesday. I would therefore respectfully request that the committee should defer consideration of these proposed amendments to allow the commission time to consider the proposals and make submissions thereon.
That letter was from Mr. Maurice Manning, president of the new Irish Human Rights Commission. It is extraordinary that he was left to read in The Irish Times of a matter of which he had not been informed as a matter of courtesy, having regard to his particular statutory brief. I consider that scandalous - it is not good enough.
A further letter was signed on behalf of Amnesty International, the Irish Commission for Justice and Peace, the Irish Council for Civil Liberties and the Irish Refugee Council, effectively conveying the same message. It states:
The undersigned organisations are concerned by the way in which such substantial amendments were circulated by the Minister at this late stage in the legislative process, just prior to Committee Stage. Such action constitutes an affront to proper legislative practices, undermines the role of the committee in considering submissions from interested parties and questions the seriousness with which such consultations are viewed by the Government. We therefore request that the undersigned organisations be given the opportunity and adequate time to make a submission to the committee on the final draft of the newly proposed amendments to the Immigration Bill 2002.
Many people have to keep pace with what is happening. If one does not receive documentation until the eleventh hour or even later and if the documentation on the amendments is larger than the original Bill - and substantively differs from the original Bill in many cases - that is not the way to do business.
We are charged under the Constitution with properly processing legislation through both Houses of the Oireachtas. What will happen in the Seanad when this Bill goes to that House? Having regard to the limited discussion we will have on Committee Stage in the Dáil, the entire matter will be dealt with on the basis of one proposal in the Seanad, without any individual discussion of these amendments. Will the Minister confirm that? He might stay up with me until whatever time of night it takes to discuss my 114 amendments and his, but when the Bill goes to the Seanad it will have to be taken collectively - there will be no individual discussion of any of these amendments. Accordingly, the other House of the Oireachtas will be totally deprived of individual discussion on amendments.
All the organisations who feel they have a special responsibility to examine legislation, taking their responsibility seriously, including our statutory Human Rights Commission, will not get any hearing whatsoever. That is not good enough. The Minister's explanations, in terms of this being urgent business and having to keep up with the pace, ring very hollow in the context of the reality of what is happening in this regard today.
I have just three brief comments. First, all of us agree that this Bill is urgent - there is no doubt about that. In a situation where people have died in containers in the back of trucks and criminal elements are involved in the smuggling of people, with all the attendant dangers and threats to families, that is the real world which this legislation has to address.
In relation to the figure of €350 million to which the Minister referred, a certain impression was given on which I would like some clarification. Many Irish citizens are not aware that a high percentage of that alleged expenditure actually applies to Irish people directly involved in immigration and asylum services. That should be pointed out.
The Deputy should address the business before the committee, rather than general matters which are not for discussion today.
The Minister also said, in relation to the €350 million, that it would be great to have €15 million for disability issues.
That is not part of this discussion.
Is the Minister saying that the money saved in this regard will be put into services for people with disabilities? That question has come up at public meetings in a very negative situation.
The proposal by Deputy Costello is that the committee should postpone consideration of this Bill.
I second that proposal.
I will put the proposal to a vote after the Minister responds to Deputies Costello and Finian McGrath.
Before the Minister responds, I wish to record the fact that we have just been circulated with a document from the United Nations High Commissioner for Refugees, which none of us has had an opportunity to read. There is a copy for everybody in the audience, so to speak.
Is that the document the Deputy was circulating in person?
It was refused at the gate because there was no time to get it in. There was also a copy for the Minister, which I did not dare accept - it is probably out in Tallaght now.
Is it of the same tone as the earlier letters?
Yes, but nobody has had a chance to read it. It has just been distributed. The people who tried to deliver it were stopped at the gate and not allowed to deliver it in that manner. This illustrates the totally rushed nature of the proceedings on this Bill.
Does the Minister wish to make some final comments before I put the proposal to a vote?
I reiterate that I am tabling 21 amendments, of which I gave advance notice, in relation to this Bill. I am dealing with 114 amendments, I understand, by Deputy Costello, of which I received no advance notice and was asked to deal with them as of last Monday. I do not know whether he circulated them to all the bodies which he now says should be consulted.
On a point of order, I could not give advance notice as I did not have the Minister's amendments.
The Deputy's point is taken.
Some 30 of the Deputy's amendments are amendments to my amendments, but approximately 70 or 80 amendments are his own. Did he circulate them to the Human Rights Commission or to any of these bodies or is he asking me to do things he has not done?
This is urgent business. It is a matter of the integrity of our asylum seeking laws, as I have signalled both in public discourse and through the mouth of the Minister of State, Deputy Brian Lenihan, on Second Stage, and I have done my best to ensure that. My officials worked over a weekend, which was beyond the call of duty, to produce a document which would explain exactly where all these amendments fit into the Bill. They reproduced the Refugee Act in toto so everyone could see where we were going. I have done everything I can, bearing in mind the constraints of the parliamentary year, to be reasonable.
I am willing to sit as long as is required. I will sit this evening, tomorrow evening, Thursday evening and all day on Friday, if necessary. I am willing to be present as long as the committee requires me this week to consider this urgent matter.
As there are fewer than 12 members present, under Standing Orders we are obliged to wait eight minutes or until the full membershipis present before proceeding to take thedivision.
- Costello, Joe.
- McGrath, Finian.
- McGrath, Paul.
- Moynihan-Cronin, Breeda.
- Ardagh, Seán.
- Hoctor, Máire.
- Ó Fearghaíl, Seán.
- O’Connor, Charlie.
- Power, Peter.
- Power, Seán.
On a point of order, there seems to be a difficulty with the committee division bell. It rang three or four times initially, then stopped, then rang three or four times again. The normal procedure is that the bell rings for the duration of the division. It is not appropriate that the committee should continue until the bell has been fixed, because we cannot call divisions.
If the same problem arises during the next division, we will desist from calling the vote and wait until the problem is fixed.
Could the Chairman confirm that what he intends is to go on until the next division and, if the bell is not working, suspend the committee?
The situation is being investigated and we hope that before the next division the bells will be in good working order. I thank the Vice-Chairman.
I hate to introduce a discordant note, but what is the status of a vote taken when the bells are not working properly?
The vote results are six against and four for the question. The maximum possible number of votes for is five, so there was a 100% Níl vote.
I did not ask what the result was but what the status was. There is a slight difference between the two.
At this point, based on the numbers, the Chair accepts that it was a valid vote. The Ceann Comhairle's office could be consulted on the matter but now we are going on to section 1, amendment No. 1.
I move amendment No. 1:
In page 4, subsection (1), line 5, after "vehicle" to insert "designed, intended or used for commercial purposes".
I regret that we have not been able to deal with the matter in the way I suggested and that the other organisations will not have an opportunity of teasing out these amendments and making a submission if necessary.
The thrust of this legislation is, I understand from the Minister's remarks, to weed out those who are trafficking in humans - taking money for carrying people into Ireland - and to ensure this does not operate on a commercial basis. Therefore, an onus is being put on the various carriers not to participate in this activity. This is what we are discussing in this section. Ships, boats and aircraft are very different from private cars. A citizen coming into the country in a private car is not what this Bill is intended to deal with. The Bill is about ensuring that people do not carry non-nationals into the country illegally.
Extending the provision to any mechanically propelled vehicle, whether commercial or private, is overkill. While I accept that there is a case to be made for considering broader commercial carrier liability, there is little case to be made for applying this to private individuals. This wide definition of "vehicle" is an onerous imposition.
The effect of Deputy Costello's amendment would be to disapply the provisions of this Bill from any ship, boat, aircraft or mechanically propelled vehicle which was not designed, intended or used for commercial purposes. This means that the Bill would effectively not apply to light aircraft, pleasure boats, cruisers, yachts, camper vans and large cars, among others. The powers of immigration officers under the Act in respect of such vehicles would be circumvented. As I explained in the Seanad at some length, when a similar amendment was moved by Senator Tuffy, that approach is not acceptable. It is not viable, if someone drives a camper van off a ferry, for him or her not to have a legal obligation to comply with instructions because the vehicle is not designed for commercial use. We cannot have a situation in which someone in those circumstances could avoid their liability under the law. If the Bill were not to apply, for example, to non-commercial vehicles on a ferry, a massive loophole would be created. Under these circumstances, I do not propose to accept the amendment.
I accept what the Minister has said. The amendment probably needs to be more tightly worded. The amendment was intended to apply to private motor vehicles - cars or motorbikes - and to show that there is a distinction to be drawn between those who bring people into the country for commercial purposes and those who are in their own private vehicles. I did not intend the amendment to apply to light aircraft or anything of that nature. Citizens owning vehicles such as those are few and far between.
The Deputy will have a better defined amendment on Report Stage.
Does the Minister have any intention of enshrining the separation between private and commercial vehicles in the Bill?
To be honest, I do not. What I said applies equally to a people carrier car, for example, of the kind which is very common these days. One could carry a number of illegal immigrants in such a car and I do not see why one should be exempt from penalties for so doing.
In the same way, I do not see why one should not be subject to control by immigration officers. Why should a distinction be drawn between a bus or a coach coming off a ferry and a person who is carrying someone under a rug in the back of a vehicle?
Amendments Nos. 2, 4, 6, 8, 9 and 13 are related and will be taken together, by agreement.
I move amendment No. 2:
In page 4, subsection (1)(a), line 22, to delete “persons” and substitute “non-nationals”.
The amendment seeks to be more specific in regard to the liability of carriers. As it stands, the section extends the obligation to all persons on board the vehicle. Whether they are non-nationals or citizens they would be required to disembark in compliance with directions and would have to seek permission for leave to land, etc. It seems nonsensical that it should be applied so extensively. As we are seeking to deal with non-nationals we should specify that.
The Minister should consider the possibility that there might be constitutional implications involved in respect of the requirement on Irish citizens to disembark, for example, and seek leave to land in their own country. That proposal appears somewhat questionable. I suggest that we change the wording.
Amendment No. 13 states:
In page 5, between lines 23 and 24, to insert the following subsection:
"(10) This section shall not apply to an alleged contravention by a person who arrives in the State having a well-founded fear of persecution in his or her country of nationality, or (in the case of a Stateless person) habitual residence.".
The lack of a valid travel document is a critical aspect of the legislation. This should not prevent someone entering the country to claim asylum. The amendment proposes something of a compromise - that people who are found to be genuine refugees should be exempt. We are trying to deal with people who have a well-founded fear of persecution.
I will confine my comments to amendments Nos. 2, 4 and 6. I will take Nos. 2 and 4 together. Section 2(1)(c) specifies that non-nationals are the target of the legislation, which is inconsistent with section 2(1)(a). Irish citizens are entitled to enter their own country and it may be unconstitutional to require an Irish citizen to present himself to an immigration official in respect of leave to land.
Amendment No. 6 which relates to section 2(1)(c) aims to ensure that asylum seekers are not denied access to the territory of the State. It is acknowledged that asylum seekers are likely to have imperfect documentation. In the course of the Seanad debate on the Bill, the Minister specified that he intends to reduce the number of people arriving in the State with imperfect documentation. Effectively, this will mean that refugees could be prevented from reaching the State, as only properly documented asylum seekers will be allowed access.
The term "non-national" is broader than asylum seekers and allows for discretion to be exercised in the case of lost documentation. I urge the Minister to consider these amendments.
Will Deputy McGrath please clarify to which part of the Bill amendment No. 6 refers?
Section 2(1)(c) on page 4.
Section 2(1) applies to persons who enter the State from a place outside it, other than the common travel area. It does not apply to persons coming from the UK.
The requirements in section 2(1)(a) and 2(1)(b) are for the carrier to ensure that everyone in his or her vehicle disembarks in compliance with directions given by an immigration officer and that everyone in the vehicle is presented to an immigration officer. The requirement at section 2(3)(a) is that the carrier shall list everyone in the vehicle when requested by an immigration officer. These requirements cannot be confined to non-nationals.
Let me give an example. If a plane arrives at Dublin Airport one cannot ask that all non-nationals go down one corridor and all Irish people go down another. They are all currently required to do whatever immigration asks of them. Anybody who would claim to be Irish could simply go wherever they liked if the immigration officer regime only applied to non-nationals. If people could be exempt from the law by merely claiming to be Irish, that would make nonsense of arrangements at airports.
In respect of amendments Nos. 6 and 13, I wish to remind Deputies that all that is required of a carrier under section 2(1)(c) is that he or she carries out rudimentary checks of a passenger’s documents to ensure they are in order. Nothing more than that is necessary.
Carrier staff will be helped, as some are at present, by training and advice given by immigration officers to make them able to spot the more obvious forgeries and falsifications. It is basically a mechanical task. If an intending passenger presents with insufficient documentation at a port of embarkation for Ireland, as far as the carrier is concerned this is no different from his or her turning up with insufficient money for the fare. All the carrier need do in either event is say that the intending passenger cannot travel on that day.
If either of these amendments were adopted, further responsibilities would be thrust on the carrier to make more personal inquiries of the intending passenger, such as if they intend to seek asylum. If there were no obligation to check the documents of anyone coming to Ireland under carrier liability legislation all one would have to do would be to state one's intention to claim asylum. The entire system would fall into disuse. Checks would become meaningless. Anybody who was in a hurry to travel but did not have a passport would simply walk on to a plane while making a claim for asylum.
Either we are going to have carrier liability or we are not. Either documentation will be required or it will not. Do we want to have a situation where anybody without documentation could get around the process by saying they intend claiming asylum when they get to Ireland? Should people be excused from any obligation to produce documentation courtesy of Deputy Costello's amendment? This would be to destroy the whole purpose of the legislation. It would cease to mean anything because people would be able to exempt themselves simply by saying they want to claim asylum when they get to Ireland. That raises the question of carrier liability. Given the way in which some people have raised this issue in public discourse here, one would think that the Government was doing something unheard of, unusual or egregious. We are the last country in the EU to adopt this measure, which we are required to do by our partners in Europe. This is not some strange new thing we are doing - it is part of our obligations as a member state of the EU to bring in carrier liability legislation.
I know what Deputy Costello has in mind in tabling this kind of amendment and I appreciate that, in his own view, he is doing it from the best of motives. In effect, however, he is suggesting that anybody could present at an airport in Paris and say to anybody working there for Ryanair or Aer Lingus, "I have no documentation but that does not matter because I am going to Ireland to claim asylum". It suggests that the carrier in question would simply say, "Well that's okay, get on the plane". Effectively, that would devastate the carrier liability proposal. It would mean nothing if all one had to do was use a formula of words, when flying to Ireland from anywhere in the world, stating that one did not propose to produce any documentation. It would mean that the whole principle of carrier liability would not apply to the Irish State, alone among European states, so I am not going to accept that amendment.
What about section 2(1)(b)? It states, “all persons on board the vehicle seeking to land in the State are presented to an immigration officer for examination in respect of leave to land”. The carrier has responsibility for that but surely the request should come from the immigration authorities, rather than placing an imposition on the carrier to take the initiative. Surely there should be some clause containing the words, “if required to do so by immigration officials”. The thrust of what the Minister is seeking to insert in the Bill will impose on the carrier a specific responsibility that was not on the carrier before. By doing that the Minister is lifting the responsibility from the immigration authorities. Section 2(1) states, “the carrier concerned shall ensure . . . that all persons on board the vehicle seeking to land in the State are presented to an immigration officer. . . ”. The carrier will now be in the front line and will have to ensure the persons are presented so the implication is that they will have to go around looking for an immigration officer. Immigration officers are employed for a particular purpose, which is to confirm that people arriving in the State have proper documentation but the Minister is now shifting that proper procedure. It is almost like shifting the presumption of innocence from someone until they are proven guilty. The presumption here is that the carrier has the primary responsibility to ensure the authenticity of documentation and that somebody meets up with an immigration officer. That is a major shift, which is transferring that responsibility to Irish citizens and non-nationals alike.
How will anybody whose documentation is not in order ever be able to claim asylum here? It will be virtually impossible. We have seen that a number of people are being deported who appear not have set foot on Irish soil at all. The figures quoted in media reports of 3,000 to 5,000, included an unfortunate, pregnant lady. It is not clear how that aspect of the existing legislation operates. It would seem now, however, that it will be virtually impossible for anybody to claim asylum here in future.
Section 2(9) states, "This section is without prejudice to the provisions of sections 8, 9 and 24 of the Refugee Act 1996". However, it will be very difficult for anybody to get near those sections of the Refugee Act. It seems that what the Minister is proposing will contravene both the Refugee Act and the Geneva Convention.
I am opposed to the carrier liability provisions, as they are framed in the legislation, in that airline and ferry staff, who are not trained in immigration procedures, will be forced to do the job of trained immigration officers. The protection of human rights will be devolved to a commercial entity - be it Aer Lingus or Aer Rianta - whereas it is the State's job to carry out that job. Such personnel have enough on their plate without worrying whether they are in breach of international immigration regulations.
To what amendment are you referring?
I am speaking to amendments Nos. 2, 4 and 6 concerning non-nationals. Any measures that do anything to obstruct the entry of asylum seekers to the State would, in my view, be incompatible with international law and, in particular, with Article 31.1 of the UN Convention on Refugees. As the Minister has said, we are the last country in Europe to introduce this concept of carrier liability as outlined in section 2 but one must examine the horrific consequences where such measures have been introduced in other jurisdictions. It will mean that asylum seekers and refugees will increasingly end up in freight containers as the victims of smugglers, which happened with tragic consequences in Wexford.
According to the statistics, as of 20 November 2002, nearly 3,500 asylum seekers have died trying to access the European Union, and these are only the documented deaths. The potential for further such fatalities will increase if we force people away from standard air and sea transport. When they land here, refugees and asylum seekers should abide by the rules and go through immigration procedures but we should not prevent them from reaching our shores in this manner.
There is a misplaced perception that people fleeing their homes will have proper documentation, but if one is fleeing persecution the last thing one thinks about is whether or not a passport is valid. If this section is passed, people with an expired passport would be prevented from claiming sanctuary here because they will not even be able to reach Ireland.
Section 2(1)(c) states that the carrier is responsible for ensuring:
That each non-national on board the vehicle seeking to land in the State or to pass through a port in the State in order to travel to another state has with him or her a valid passport or other equivalent document which establishes his or her identity and nationality and, if required by law, a valid Irish transit visa or a valid Irish visa.
Is it not the case that if that provision had been enforced over the last two weeks here, some of our national carriers would have been guilty of offences? While I commend the Minister's positive efforts concerning the Special Olympics, I understand that some of the people travelling to the games did not have travel documents because of their domestic situations. Iraq is a case in point, yet some people travelled without valid documentation. Under this legislation would the carriers be liable for prosecution? Perhaps the judge might decide there were special circumstances and it was permissible but is the Minister taking a sweeping approach? Carriers will be liable irrespective of anything else.
I re-emphasise carrier liability is an established fact in the other 14 member states of the EU. It recognises the simple reality that if there is a system whereby carriers can transport people from place to place in Europe without regard to the question of whether they can lawfully disembark in the places to which they are carried, carriers can make money from the illegal movement of people. I have no right to go, say, to America. I require documentation to enter America and it would be a nonsense if Aer Lingus or American Airlines made a profit carrying me from Ireland to America in circumstances where, through an elementary check, it could have been established that if I had attempted to enter America, I would be in breach of American law.
Carrier liability is all about telling airlines they cannot move people around regardless of the consequences and they share the responsibility for doing so. That is why all other EU member states have a carrier liability law to bring home to airlines and shipping companies that they cannot agree to carry people to places where they should not be going in the first place. That is the basic common sense behind this. They are not being asked to act as immigration officers. They are being asked to check whether an individual who, on the face it, appears to have the legal right to go to the place to which the carrier is agreeing to carry him or her, has that right. That is elementary common sense.
If I made the concession that is being sought and travelled down the road of introducing carrier liability law but stipulated it does not apply to anybody who presents at an airline counter anywhere in the world and claims he or she intends to seek asylum in his or her destination, everybody would disregard our documentary requirements and present themselves in Ireland. Our carrier liability legislation would become utterly and completely meaningless.
We cannot have it both ways by having a carrier liability law while, at the same time, saying that anybody who uses the magic formula and says he or she intends to seek asylum when he or she reaches Ireland can breeze on to a plane. That would be a recipe for chaos and would mean that Ireland would be the only country in the EU with a system under which there was free passage for everyone who wished to come here, whether they intended to seek asylum on the basis that when they got here, they could address the realities of their own situation.
I do not see a reason to distinguish between nationals and non-nationals nor is there a reason to ignore the law, which is that one should present basic documents when boarding a flight to persons claiming to seek asylum. Deputy McGrath asked whether some people might have committed an offence. It may well be that, in certain circumstances, some people were carried in the confident expectation that an immigration officer in Ireland would deal in a reasonable way with a particular set of circumstances or on an understanding, say, from the organisers of the Special Olympics, that no problem would arise. I am confident no prosecution would arise under this legislation because the carrier could say he or she acted in good faith and was led to believe this person, who was temporarily undocumented, would be allowed in. However, the basic rule must apply that if one flies or ferries people to Ireland for reward, one must undertake the responsibility of establishing that they are, on the face of it, in possession of documents that would make the journey legal.
The Minister's explanation is still not adequate. There is a core contradiction in carrier liability. The carrier will have to vouch that a non-national has a valid passport or equivalent document. Ireland has a responsibility internationally to adhere to the Geneva Convention and cannot refuse asylum seekers. We are bound to give a fair hearing to them and engage in due process. This responsibility under international law is tied to the Minister's responsibility to protect Ireland from a flood of immigrants, many of whom are not asylum seekers. However, in doing so, he may prevent genuine asylum seekers from exercising their rights under international conventions. That is a contradiction which the Minister has not addressed.
He does not have a coherent immigration policy that relates to people fleeing persecution or seeking better economic conditions. A limited number of migrant workers are employed in the State but they are tied to their employers. He says that everything will be hunky dory at the end of section 2 because there is no prejudice to the provisions of sections 8, 9 and 24 of the Refugee Act and the discretion of the Minister to admit to the State a person whom he or she considers to be in need of the protection of the State. There is no connection because carrier liability has made that impossible in the first instance.
How can the Minister impose carrier liability that does not make provision for exercising our international obligations regarding asylum seekers and say all EU member states have introduced such legislation? It is too incredible that every member state has introduced blanket legislation that does not allow anybody to make an asylum application unless his or her documentation is 100% in order. The Minister is legislating for a contradiction. However, we should legislate for our responsibilities under domestic and international law. There is no doubt the section breaches our responsibilities under international law because Ireland does not have a coherent immigration policy under which asylum seekers and economic refugees can be separated. We never dealt with immigration policy and the mixed up approach to address the problem has resulted in incoherent legislation which will be in breach of international law.
If international law is as the Deputy contends, it is indeed very strange that carrier liability is universally applied in the European Union and that we are required by EU policy to adopt a carrier liability law. I do not accept that there is such a fundamental inconsistency in this regard or that it is a consequence of the 1951 convention that anybody intending to claim refugee status is entitled to fly, undocumented, anywhere in the world. I regret we are not going to have a meeting of minds on that.
The issue is not that they are entitled to fly anywhere but that, effectively, in terms of carrier liability, the Minister requires carriers to take over all the responsibility of immigration officers.
There is no question of their taking over all responsibility. When somebody comes to Ireland, by whatever means, popping up in Galway or wherever else and claiming asylum in this State, that is a completely separate action.
Will the Minister give an example as to how they might pop up?
About 70% of current asylum seekers do "pop up", to use my phrase. They come in, so to speak, behind the lines. They do not present themselves at the first available opportunity.
That makes the situation even worse, if this legislation is directed at the 30% who are popping up in the country. What is the Minister going to do about the other 70%?
I believe there is a flaw in the Deputy's argument. It may well be that those concerned fly on scheduled flights, use regular documentation, come into Ireland, shred their documentation and then present themselves, without any explanation as to where have been. That seems a much more credible explanation.
The Minister could be well paid for his advice.
I am not sure my advice would be very valuable - many of these people are well advised.
At present, very large quantities of illegal drugs are being imported to this country. There were reports on television in recent days of Tunisian refugees being drowned while attempting to reach Italy, because they were trying to avoid carrier liability by using an illegal source. That illegal trafficker in human beings used a ship which was clearly unseaworthy. This is the scenario which will be created in due course. People will have no choice but to use criminal gangs to access the country and will be totally used and abused. Instead of fighting against traffickers in humans, there will be a proliferation of that type of crime, which will be far more profitable to the traffickers under legislation of this nature. How does the Minister intend to deal with that problem?
The ultimate logic of the Deputy's argument is that we should throw open our borders and thereby wipe out the people-traffickers, because there would be no profit for them if we simply abolished all controls of any kind. The great majority of persons who fit into the broad category of asylum seekers are, in fact, economic migrants, a great number of whom are paying others to make arrangements for them to come into this country. That is the reality.
We have 12 amendments to deal with and the section is also opposed - I am sure we will return to this issue. Is Deputy Costello pressing amendment No. 2?
The Minister is addressing No. 13. Is that to be dealt with now?
I am not accepting any of these amendments Nos. 2, 4, 6, 8, 9 or 13.
Has the Minister concluded on amendment No. 13?
Yes, I have said what I wish to say in that regard.
Is amendment No. 2 being pressed?
Amendments Nos. 3 and 5 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 3:
In page 4, subsection (1)(a), line 25, after “officers,” to insert “if required to do so by such directions (if any),”.
With the inclusion of my amendment, the relevant text in section 2(1)(a) would read:
all persons on board a vehicle seeking to land in the State or to pass through a port in the State in order to travel to another state, disembark in compliance with any directions given by immigration officers, if required to do so by such directions, (if any).
The words I am proposing to add are simply in the interests of clarity.
I do not consider it at all clear. I suggest the Deputy should read it again. The amended text would read:
The carrier shall ensure that all persons on board a vehicle seeking to land in the State or to pass through a port in the State in order to travel to another state, disembark in compliance with any directions given by immigration officers, if required to do so by such directions, (if any).
Sir Humphrey would be proud of that one.
As the section stands, it requires total disembarkation by all persons on board to comply with it. With my amendment, the immigration officers could specify total or partial disembarkation, or a particular individual. It would be at the direction of immigration officers as to whether disembarkation applies to all passengers, only some passengers or just one individual.
That is already the case. If one were to fly a plane from, say, Lagos to Dublin——
There is no such flight.
I am just using that as an example.
Why not base it on a flight from London?
This legislation does not apply to travel within the common travel area - Paris to Dublin would be more relevant. An immigration officer may require everybody to disembark or may allow all those travelling on to, say, New York to remain on the plane. It is for the immigration officer to decide whether everybody must get off the plane. That is how international air transport operates - the air company acts in accordance with the instructions of the immigration officer, disembarking all or some passengers as the case may be. If we had some other rule instead of this - for example, if an immigration officer could require all non-nationals to disembark from a ship arriving in Dublin, while Irish people could remain on board - it would become impossible for the carrier to comply. The carrier would not know which passengers were non-nationals and which were Irish. This was considered in the Seanad as well. It would make things very confusing because the phrase "any directions" clearly means that the obligation only arises when directions are given.
What about amendment No. 5, which proposes to insert "if required" into line 28? It is really only if the immigration officer requires it that all persons on board the vehicle seeking to land in the State are presented to an immigration officer for examination in respect of leave to land. In other words, there should not just be a mandatory blanket requirement——
May I tell the Deputy what that means?
There should not be mandatory disembarkation or presentation to an immigration officer unless the immigration officer requests it.
Let us suppose a trawler is going from France around the south coast of Ireland and it pulls into Baltimore. There may not be an immigration officer there, there may be nobody to make a request. The law requires that if people are carried into Ireland, they must be brought to an immigration officer. We cannot have a situation in which no offence is committed if the people are simply brought somewhere there is no immigration officer or flown in a light aircraft to Weston Aerodrome. The vehicle's owner or captain cannot simply say that it is too bad, that there should have been somebody there to make a requirement and therefore he has no liability.
What about yachts that come over from England or France for the summer holidays whose occupants stop at Rosslare and go up to the local pub for the night?
They will have to go looking for an immigration officer to present to. The section states, "that all persons on board the vehicle seeking to land in the State are presented to an immigration officer . . . ". Is it the case that irrespective of whether the immigration officer requests them to present, they have no choice but to find one?
One cannot bring a boat from Cherbourg to some little inlet in Bantry Bay and say that it is none of one's business what happens although one's passengers are wandering off into Ireland. If one is carrying people into the State, it is up to one to comply with the immigration laws. We cannot have a law allowing people to fly light aircraft into any field in Ireland that suits them or bring boats into any little inlet and say it is none of their business, that if the immigration service is not here their passengers are free to get off and make their way inland.
As the provision is written, Irish citizens coming back from France on a yacht would have to present themselves to an immigration officer, while the next paragraph, (c), speaks about non-nationals. It is strange.
They could come up the canal to Ranelagh.
Is it not a difficulty that every person on board every vehicle must be presented to an immigration officer irrespective of who he or she is or where he or she is from?
This applies outside the common travel area. If one is coming on a scheduled flight or a yacht from outside the jurisdiction, one is required to obtain clearance before coming into Ireland. That is the law. Otherwise it would be the case that anybody could come into Ireland. We are not in a position to establish a law that says that one can bring anybody anywhere in Ireland and let them off on the beach.
Can one obtain permission over the phone?
I presume one could.
According to the legislation, they must be presented to an immigration officer.
Will this legislation not be defective in the sense that the Minister is not prescribing that if our Chairman is sailing in his yacht from France and he intends to dock in Dún Laoghaire, Rosslare or elsewhere there is no immigration officer——
We are talking about the future.
With the great job the Chairman is doing I am sure we will send him off on a yacht. Does the Bill not prescribe that the person in charge of the vehicle is required to contact an immigration officer in advance, tell him that he is likely to land in a small port in Waterford and ask what procedure he will have to follow? Otherwise, the fact that he must take the initiative is not covered in the legislation. If it is the case that the visitors must dock in Waterford, hire a car and hightail it to look for an immigration officer, that is not good enough, particularly if those landing are Irish citizens. Should there not be some way of radioing ahead to signal one's intentions? This should be dealt with in the Bill.
That would amount to presenting to an immigration officer. Perhaps if one said that one was coming in to Barleycove or wherever, that might cover it.
Is the Minister telling us it is all right to do that?
I cannot make a law, as I am being asked to do here, that says that a person can land anybody anywhere in Ireland and unless there is an immigration officer to make a requirement of them, no offence can be committed. That would be completely chaotic.
Irish citizens are citizens of the EU. Tourists might travel to the Aran Islands on a yacht and then to Inisbofin and on to Dublin.
Part of the provisions relating to the common travel area are that both the UK and Ireland insist on documentation. We are not Schengen states, we do not simply allow people who claim to be French to come into Ireland. We do not even allow Irish people to come to Ireland or travel to Britain from France on the basis of an assertion that they are Irish. These two states in Europe, the UK and Ireland, have decided together that they require documentation for people coming into their territories from the remainder of the EU. For travelling between the two countries the regime is very liberal - one does not have to have documentation to travel across the Border. If one is a UK national or an Irish national one does not have to account for one's self. One does not even need an identity card. The price of that liberal regime is that we have jointly agreed to a documentation check in respect of people who are entering either island from any other part of the world. That is our system. Deputies may not like it, but before they advocate dismantling it they should think very carefully about whether they want to introduce passport controls on the Border.
If we give up on this system, what else can we do? The common travel area certainly has a disadvantage in that it is so liberal internally that we need unusual arrangements with the rest of the EU and as regards third country nationals. We cannot have a system whereby anybody can bring a boat to anywhere in Ireland, have the passengers disembark and say that no offence has been committed because they did not go to a place where there was an immigration officer. They cannot say that an immigration officer should have guessed that they would be there and should be waiting to receive them.
If the Minister was a member of a Dún Laoghaire yacht club, he sailed over to Calais and came back the next day, he would not need to produce his documentation going into Calais because it is covered by the Schengen agreement.
I would. The French maritime police would descend on me if I attempted to sail into Calais without documentation.
If the Minister was to travel between any of the other countries in the EU, he would not be required to produce documentation because of the common travel area.
Under French law, though, one must have identification. One cannot just wander around in one's swimming togs.
What happens if it is requested?
Is there a reciprocal provision in Great Britain? Does the same provision exist there for people coming from Ireland or Northern Ireland to the Channel Islands?
There are analagous proceedings.
Obviously, this must have been in the law already.
It is. Under the Aliens Order 1946, made under the Aliens Act 1935, there is an obligation to present oneself when one comes into Ireland. One cannot choose ones point of entry. Certain categories of people, including seamen, are exempt from that obligation.
Does this just exclude Great Britain, Northern Ireland and the Channel Islands from that obligation?
These provisions are silent on these matters. Deputy Costello is arguing that if one lands somewhere in Ireland where there is no control one commits no offence because there is no one there to make a requirement of one. Our law backs up the Aliens Order and says that if one is bringing people into Ireland you must go to somewhere there is an immigration officer in a position to exercise control. One cannot simply say, "I am landing people on Valentia Island and it is up to the Irish State to have someone there to anticipate the landing." One cannot operate a system that way.
I was not talking about landing in Calais. I am thinking of someone who sailed out of Dún Laoghaire for the day on their yacht and then returned in the evening.
Deputy, you always speak for the working class.
I am thinking of the Minister and his party supporters more than Labour Party supporters. When such a yacht crew sails back into Dún Laoghaire do immigration officers check them when they disembark? Will the skipper of the vessel now have to present to an immigration officer in respect of leave to land? The Bill states: "Where a vehicle arrives in the State from a place other than Great Britain, Northern Ireland, the Channel Isles or the Isle of Man the carrier concerned shall ensure that all persons on board the vehicle seeking to land in the State are presented to an immigration officer for examination in respect of leave to land."
If one arrives from a place which is not in a common travel area, that is, some other place, one must follow this procedure - that would include Calais, for example.
Would that include international waters?
No. Just because one goes 12 miles out to sea I do not believe it applies.
What does this yacht owner in Dún Laoghaire do then? Is there an immigration service constantly in attendance at all the yacht clubs in Dún Laoghaire, Howth and elsewhere? He has to present himself, his crew and everyone who wishes to disembark.
If one were arriving in the State from a place outside the common travel area, from Calais for instance, whether one is Irish, French or Chinese one must comply with Irish immigration law. Under the Aliens Order that would require one to present oneself to an immigration officer at an approved point of entry. We do not have a free-for-all. One is not entitled to land wherever one likes.
Deputy Costello, is your amendment required now?
I am trying to help the Minister. I think he is in a spot of trouble in relation to his proposal. However, if he were to accept my amendment, including the phrase "if required", it would not be necessary to be presented to an immigration officer.
If the phrase, "if required" meant if required by law or by any other legal provision I could understand it but it would be surplus to requirement because the other law would apply anyway.
The subsection as it stands seems impossible to enforce. Is that requirement being enforced at present and how is it being enforced?
It is the law at present.
It is the law but that is a different matter. We have many laws but they are not all enforced.
If the Deputy is suggesting that it is possible, for instance, for somebody to go sailing out of Rosslare, meet a French yacht sailing out of Cherbourg, exchange passengers and come back in without surveillance, that is true. However, it is illegal because it is in breach of the Aliens Order. If the Deputy is asking if there is someone checking the movement of every Irish yacht on a routine basis the answer is no, there is not. That is the world in which we live.
Is there a definition of what constitutes presentation to an immigration officer? Must one present oneself to Mr. A., who is the immigration officer?
Apart from seamen, who are exempt from the provisions of the Aliens Act, if you are bringing passengers into Ireland one must use an approved port of entry and present ones passengers to an immigration officer at an approved point of entry. I fully accept what Deputy Costello is saying, that is, there is no one studying satellite photos on a constant basis to work out what ships are going near each other or what yachts could or could not have exchanged personnel. Certainly, no one in Schull on an afternoon is de jure aware of whether every yacht that comes in has come in from international waters.
That is the law and that is the situation. My concern is that the Minister is now imposing a legal obligation——
It is already there.
——on the carrier. If the carrier leaves the country and goes to an area not covered by Great Britain, Northern Ireland or the Channel Islands he or she must now present to an immigration official. This is a new departure.
I do not think it is. Under the Aliens Order that is what one is required to do with ones passengers anyway. Otherwise, we would have complete and total chaos in our immigration law.
There is reference to summary conviction, to breaking down doors if someone sees them and arrests them and to what is to happen if he does not report them and so on. If someone phones the local Garda station and says skipper so-and-so took a day trip, came back and did not say a word to the immigration officials the gardaí can come and break his door and seize evidence.
How many points of entry will there be? The Bill refers to presentation to an immigration officer? Could a garda or another officer of the State perform the function of an immigration officer if one were not available, so that Irish or European citizens who land in a remote place could approach a garda and make their landing known to him or her, instead of having to travel to Cork, Galway or some larger centre?
Section 7, as passed by the Seanad, proposes to allow the Minister to prescribe ports to be approved ports for non-nationals arriving in the State from places or specified places outside the State for the purposes of the Aliens Order 1946. There are roughly 20 prescribed in the First Schedule to the order. When I commence that section and bring in my own regulations they will be revoked.
Section 7 only applies to non-nationals and not to Irish citizens. We are still left with our Progressive Democrats skipper coming from Calais to Dún Laoghaire. He must find an immigration officer no matter what hour of the night he arrives. If there is a similar requirement under the aliens legislation we need to tighten up that aspect. It might be useful if the Minister considered the issue for Report Stage.
I will consider the issue for Report Stage but I do not think I am wrong in what I told the committee.
I move amendment No. 7:
In page 4, subsection (1)(c), line 34, after “visa” where it secondly occurs to insert “unless the non-national has a reasonable excuse for failure to comply with this paragraph, proof of which shall lie on the defendant”.
Perhaps there are genuine cases where documents have been lost. Obviously if a non-national asylum seeker is fleeing persecution, some documents may not be fully valid or lost, and a reasonable explanation could be made for lost documents. I am suggesting in section 2(1)(c) that there should be a certain degree of flexibility in relation to the production of valid passports or equivalent documents which establish a person’s identity and nationality. This would allow for the flexibility which is not currently provided under the section.
It is a question of practicality. This imposes a liability on carriers. The liability will not be imposed unreasonably on carriers where it is established someone dropped his or her passport overboard. The State acts reasonably, not unreasonably. If I were to do the opposite and say that when a passenger claims to have dropped a passport overboard the section shall not apply, the section would become meaningless. I would prefer to leave the matter to the good sense of the prosecuting authorities rather than make exceptions that sometimes there will be extreme hardship cases which would make it unreasonable. Under subsection (6) it is a defence for a person charged with an offence consisting of a contravensionist paragraph (c) of subsection (1) to show that the non-national concerned had with him or her the relevant document before embarking on the vehicle concerned, or that he or she did not know and had no reasonable grounds for suspecting the document was invalid.
That is as far as we can go. The law must be enforced. If we put the onus on the defendant to prove whether a non-national has a reasonable excuse, how will Ryanair or Aer Lingus, in respect of a flight from Paris, be in a position to prove things unless they can lay their hands on the witness and keep him or her in Ireland until such time as the person is prosecuted? This would not work very well. It would be almost impossible in a carrier liability case if the onus of proof was on the defendant in a prosecution which would have to produce the witness to show he or she had a reasonable excuse.
I included in the amendment the words "a reasonable excuse for failure to comply". I understand what the Minister is saying. It comes back to the point that anyone seeking asylum is not likely to have a valid passport or equivalent documentation. However, if they do not have it, they certainly should have an opportunity to explain why they do not have it. Nothing in the section allows for anything other than having the proper documentation in place. On the one hand, documentation could be lost and, on the other, it might not be available in the first instance. There could be a reasonable excuse that would give some level of flexibility which is not available under the section. It is part and parcel of imposing responsibility on carriers. This is coming very close to making carriers and immigration officers responsible. How will the carrier know exactly what is a valid passport?
One could ask how will carriers know what is a reasonable excuse?
Is it not the same thing?
The Deputy is imposing on the carrier a liability to prove to a court that the person had a reasonable excuse.
I am saying that the Minister is imposing far too much on carriers. Carriers will have to be experts in false passports and equivalent documents because it is their responsibility. If they do not ensure it is a valid passport, not what appears to be a valid passport——
That is not so. It is a defence to show that the carrier did not know and had no reasonable grounds for suspecting the document was invalid. All they need say is that they did not know it was a false passport, there was nothing in it which leapt out at them to say it was false and they took it to be genuine.
That is giving total carte blanche. All someone has to do is produce an invalid passport and if he has no training——
It must be a reasonable effort. It cannot be something scrawled on the back of a beer mat.
How will we suddenly transform a carrier? Carriers include thousands of people. These could be private vehicles such as motor cyclists, car drivers, bus drivers, coach drivers, skipper of a ship and so on. These people will now be responsible. Their primary responsibility is to ensure it is a valid passport or equivalent document, a valid Irish transit visa or valid Irish visa. It is grounds for defence if one had no reasonable grounds. Does this impose on a carrier an onus to inform himself or herself what constitutes a valid passport? It appears it does. If one is to have reasonable grounds, one must take some steps to ensure he or she could form a reasonable opinion of what constitutes a valid passport.
The answer to the Deputy's question is that all the legislation will require is that a carrier demands production of documentation from an intending passenger and that the intending passenger produces a document which reasonably appears to be in the mind of a carrier a valid document with a valid visa or whatever. That is not a very exacting test. It does not impose strict liability, nor does it impose unrealistic constraints on carriers. The Irish immigration service will provide training in respect of forgeries and the like, which it is already doing.
The Bill simply states that one must check the documentation of people one carries into Ireland. It also stipulates that, even though they may be carrying high-quality forgeries, one commits no offence if one checks their documents and if something which reasonably appears to be the real thing is produced to one. That is not an exacting or draconian requirement.
There are the words "reasonable grounds".
If it appears to be done in crayon, one may say that the carrier had no reasonable grounds to believe that this had been issued in an Irish Embassy. However, if it appears to be an Irish visa on a fair inspection, then that is the end of the matter.
The point I am making is simply this. We are transferring responsibility for checking documents from immigration officials to individuals who have never done it or been responsible for it before. Now these people are liable to be punished. The penalty is a fine, in the first instance, on summary conviction and the person could end up in prison.
If one gets on a flight at Dublin Airport to Paris, Toronto or anywhere outside Ireland, one is subjected to this procedure. They look at one's passport to see if one has the right to go to the destination. It happens every day as a matter of course.
That is a commercial activity and people are trained to undertake it. However, a driver crossing the Irish Sea in a ferry is not trained to do so. My earlier amendment about private cars or motorcycles was ruled out. The drivers of such vehicles are equally responsible and they too must have reasonable grounds for believing that any documentation is valid, if this was to arise in that respect. It is a catch-all clause.
My point was that we are shifting the onus of responsibility from people who are employed for a particular purpose to people who are not, and there are heavy penalties which accrue if one does not adequately and properly fulfil those obligations in a reasonable fashion. What constitutes "reasonable grounds" for knowing that a passport, visa or other document is valid? There is a problem of credibility in working this particular aspect of the legislation effectively.
I thought you were making a good argument for the legislation until the last few words.
The Deputy is accusing me of having a catch-all clause and I am accusing him of trying to palm off on me a catch nothing clause. The fact is that we must have a system which works.
If one is flying out of Ireland, at present airline staff check one's documentation as a matter of course to see if they will incur carrier liability penalties in other states. That goes on all day, every day. If one gets on the ferry from Rosslare to Roscoff, one's documents are checked to see whether they are in order. If one produces an Irish passport, for instance, they will decide one is entitled to travel within the EU. If one produces a Brazilian passport in Roscoff, for instance, they would look at it to see if it contains a visa, if one is required to get into France. That is the kind of thing the staff of Irish Ferries must do at present and all we are doing is requiring that at the other end of the journey they behave similarly in respect of the Irish State, that they check that somebody brandishing a Brazilian passport in Cherbourg, Roscoff or wherever, has a valid visa to get into Ireland. This is not an unreasonable provision. It is perfectly normal.
I will not proceed any further on it.
I move amendment No. 11:
In page 5, between lines 16 and 17, to insert the following subsection:
"(8) Where it is established that a person who carries on the trade of passenger carriage for reward is guilty of an offence under this section that person shall be liable on summary conviction to a fine of €5,000 and on conviction on indictment to a fine of €10,000.".
The amendment is self-explanatory. It provides that where a person who is a carrier is guilty of an offence the fines should be substantial. The €3,000 fine is too small and should be increased.
We are dealing here with the jurisdiction of the District Court. Whereas I fully agree with the Deputy that the exact definition of what is a minor penalty is not easily ascertained, there is no ruler which one can take out of a cupboard with which to gauge that a particular penalty is or is not a minor matter. There is a general acceptance that a €3,000 fine is towards the serious end of the potential jurisdiction of the District Court. It is what I would generally offer in other legislation as the maximum penalty that the District Court might safely impose in any case.
Under Schengen, it might be argued that we must apply proportionate and dissuasive penalties and the like and this is a dissuasive penalty. For a carrier, €3,000 is a lot of money. There are very few flights to Ireland where the profit margin would be €3,000.
I agree that the profit on those flights might not be €3,000, but one will find that the person concerned will be somebody else, for instance, a lorry driver or the pilot of a small plane, who has received money to carry the person who should not be travelling in the first place. If one considers the number of relatively small private planes in Ireland capable of carrying up to ten people and the kind of finance which apparently changes hands for illegal immigrants, it would be quite easy to call it a cargo which would be worth a great deal more than €3,000 and it might be worth taking the chance. I feel that the fine is too low. Is there any provision whereby it could be referred to a higher court if a heavier fine was to be imposed?
There is the Illegal Immigrants (Trafficking) Act 2000 which deals with intentional behaviour of that kind. For instance, a person, smuggler or trafficker would be liable to be prosecuted on indictment under that Act if he or she was detected and very serious penalties are available under that law.
This is meant to be a run-of-the-mill law dealing with failure to check people out. This is not meant to deal with people who are knowingly engaged in the trafficking of illegal immigrants. That is not what this law is about. This is a different thing.
I move amendment No. 13:
In page 5, between lines 23 and 24, to insert the following subsection:
"(10) This section shall not apply to an alleged contravention by a person who arrives in the State having a well-founded fear of persecution in his or her country of nationality, or (in the case of a Stateless person) habitual residence.".
We have discussed the principle of this in passing, with the various amendments. Essentially what is happening is that we are transferring liability for anybody coming to this country from immigration officers to carriers. That is a very broad term. We have seen from some of the amendments discussed just how difficult it is to apply the new regulations that are being imposed and how difficult it will be for carriers to adhere to the regulations.
The second point of the argument is that we find ourselves in breach of the 1951 Geneva Convention on this matter in that the Bill erects cast-iron obstacles in the way of people landing on these shores who wish to apply for asylum. It makes no distinction between the categories of people arriving. From the application of this section there will be no opportunity for genuine refugees from persecution to apply for asylum.
We will stop at this point and come back to that issue because of Standing Order 31. It is the intention to continue consideration of the Bill at 9.30 a.m. tomorrow until the Order of Business and then again at 7 p.m. tomorrow. Is that agreed? Agreed.