Wednesday, 13 October 1999
Dáil Éireann Debate
That Dáil Éireann approves the exercise by the State of the option provided by Article 3 of the fourth Protocol set out in the Treaty of Amsterdam to notify the President of the Council that it wishes to take part in the adoption and application of the following proposed measure:
The purpose of the motion before the House today is to seek approval for Ireland to opt in to the adoption and application of a proposal for a Council regulation concerning the establishment of Eurodac for the comparison of the fingerprints of applicants for asylum and certain other non-nationals. The Treaty of Amsterdam, which came into force on 1 May 1999, has added to the EC Treaty a new title, Title IV, which comprises, inter alia, measures on asylum. This proposed regulation falls within Title IV and it does not, therefore, apply automatically to Ireland or the United Kingdom, but is a measure into which Ireland or the UK may opt under the fourth protocol of the Treaty of Amsterdam.
There are two alternative forms of opting in. The State may either opt into taking part in the adoption and application of the measure from the outset under Article 3 of the fourth protocol or alternatively Ireland may opt into accepting the measure at any time after it has been—
Mr. O'Donoghue: I hope there is a script and I think it is available. There are two alternative forms of opting in. The State may either opt into taking part in the adoption and application of the measure from the outset under Article 3 of the fourth protocol or alternatively Ireland may opt into accepting the measure at any time after it  has been adopted under Article 3(2) of the fourth protocol. A time limit is given for the exercise of the first form of opt in. The State must give notice of the exercise of the option of taking part in the adoption and application of the measure in question within three months of the formal presentation of the proposal. In addition, under Article 29.4.6 of the Constitution, the prior approval of both Houses of the Oireachtas is required before the option can be exercised.
If Ireland does not opt in to the adoption and application of the measure from the outset, while we might participate in relevant meetings, we would not be able to opt in until such time as the negotiations have been concluded and the measures adopted, and our ability to influence the outcome of the discussions would be correspondingly limited. Essentially, this is why the Government, acting on legal advice, decided to exercise the option of opting in to the application of the measure at this time. Moreover, the United Kingdom formally notified the President of the Council on 7 October that it intends to opt in to the adoption of the measure.
The background to the Eurodac draft regulation may be traced back to 1996 when proposals were made during the Italian Presidency, to have an EU-wide mechanism for exchanging fingerprint data. The need for this measure arose from the fact that many applicants for asylum—
Mr. O'Donoghue: I apologise to Members of the House. My understanding was that the speech would be available immediately I began speaking. I apologise and expect the script to be available in the House very shortly.
The background to the Eurodac draft regulation may be traced back to 1996 when proposals were made during the Italian Presidency to have an EU-wide mechanism for exchanging fingerprint data. The need for this measure arose from the fact that many applicants for asylum in the European Union were not properly documented and consequently there was a lack of evidence about their identity which made it difficult to establish whether they had previously lodged an application for asylum. The objective was to establish and maintain a fingerprint system, known as Eurodac, the purpose of which is to assist in determining the member state which is responsible pursuant to the Dublin Convention for examining an application for asylum lodged  in a member state and otherwise to facilitate the implementation of the Dublin Convention.
The draft regulation replaces the draft Eurodac convention and protocol which were respectively frozen when agreed by the Justice and Home Affairs Council in December 1998 and March 1999 pending the entry into force of the Treaty of Amsterdam, when a different legal base would be appropriate. The Dublin Convention, which was signed in 1990 during the Irish Presidency and which came into effect in Ireland on 1 September 1997 gives effect by the countries of the European Union to the generally recognised international principle that persons seeking asylum should do so at the first opportunity available to them.
The Dublin Convention guarantees asylum seekers who arrive in the territory or at the borders of the member states that their applications will be examined fully by one country in accordance with that country's determination procedures. Broadly speaking, the purpose of the Dublin Convention is to lay down criteria for determining which member state is responsible for examining an asylum application. The effective operation of the Dublin Convention depends on the ability to identify asylum seekers and establish their first point of entry into the EU. Problems arise when asylum seekers arrive in a member state without documentation to show who they are or where they come from. As over 80 per cent of asylum seekers currently evade immigration controls and claim to be unaware of how they arrived in Ireland, identification of the appropriate EU country under the Dublin Convention is obviously very difficult at present. Ireland fully supports Eurodac as an essential tool to assist in the implementation of the Dublin Convention and of discouraging abuse of asylum procedures. In practical terms, the Eurodac system will provide a facility to determine whether an asylum seeker or illegal immigrant has claimed asylum in another member state. Without tools such as this the whole asylum process can be brought into disrepute, and persons who should receive protection may lose out.
I stress that genuine asylum seekers have nothing to fear from this measure. It should ensure that their applications are processed speedily and that they will be accorded the necessary protection quickly. I also draw the attention of the House to Article 1(3) of the draft regulation which states: “Without prejudice to the use of data intended for Eurodac by the member state of origin in databases set up under the latter's national law, fingerprints and other personal data may be processed in Eurodac only for the purposes set out in Article 15(1) of the Dublin Convention.”
The following is a brief outline of what is contained in the draft regulation. It provides for the establishment of a central computerised unit within the Commission for comparing finger prints of asylum applicants and certain other non-nationals. It further provides for the fingerprinting of three different groups of people to be transmitted to the Eurodac central unit and processed within the central database yet to be established: (a) applicants for asylum – Articles 4 to 7 – the draft regulation creates an obligation on member states to take the fingerprints of applicants for asylum and transmit them to the Eurodac central unit; (b) persons apprehended in connection with the irregular crossing of an external border – Articles 8 to 10 – the draft regulation creates an obligation on member states to take the fingerprints of persons apprehended in connection with the irregular crossing of an external border of the member state and transmit them to the Eurodac central unit to facilitate the implementation of Article 6 of the Dublin Convention which provides that “when it can be proved that an applicant for asylum has irregularly crossed the border into a member state by land, sea or air, having come from a non-member state of the European Communities the member state thus entered shall be responsible for examining the application for asylum”; (c) persons found illegally present within the territory of a member state – Article 11 – the draft regulation allows member states to use Eurodac if they wish to do so to check whether a person found illegally present in its territory has previously claimed asylum in another member state. This article does not create an obligation or a power in Community legislation for a member state to fingerprint persons found illegally within its territory. A member state can only take the fingerprints of the persons in question if it is permitted to do so under national law. No such provision exists in Irish law.
If the proposal from the Commission is ultimately adopted as a regulation it will have direct application in member states. Under Article 11 however the fingerprinting of persons found illegally present in a member state is an optional matter for each member state. Should it be decided to take the fingerprints of illegal immigrants in this situation legislation will be required to give effect to this in Ireland. There are no plans to introduce such legislation here.
The exchange of fingerprints through a central database should considerably improve the effectiveness of the Dublin Convention. It is a straightforward and efficient way of establishing the identity of asylum seekers who often lack adequate identification. In addition to establishing whether an asylum applicant has also applied for asylum in another member state Eurodac will establish whether he or she has made any previous applications for asylum under another name in Ireland. Clearly this will also assist in identifying any abuses of our welfare payments system. This regulation is necessary to allow Ireland, on the one hand, to retain its long and honourable tradition in the asylum area and, on the other, to deal effectively with abuses of the asylum determination process.
In 1998 Ireland received 64 requests for transfer from other member states under the Dublin  Convention, of which 49 were accepted. In the same period Ireland made 167 requests for transfer, of which 141 were accepted. Up to 30 September 1999 Ireland received 47 requests for transfer, of which 39 were accepted. In the same period Ireland made 165 requests for transfer, of which 128 were accepted. It is obviously difficult to establish the appropriate EU country when asylum applicants do not have the documents necessary to identify from where they have come.
The total number of asylum seekers transferred under the Dublin Convention since its ratification at the end of August 1997 is 27. No transfers have taken place under the Dublin Convention to date as a result of a ruling by the High Court in respect of section 5(1)(e) of the Aliens Act, 1953. This power has now been restored by the Immigration Act, 1999, and the regulations necessary to allow deportations to resume in accordance with the procedures set out in the Act will shortly be finalised.
The numbers seeking asylum here continue to rise. The total number of asylum applicants this year has already exceeded the total figure for 1998 with 4,636 applicants to 6 October. The numbers applying during 1999 increased from 234 in January to 453 in June but jumped dramatically to 571 in July, 963 in August, 938 in September and 259 last week alone.
The task force I established to deal with this matter is dealing with new and old applications simultaneously. At the rate of progress in relation to processing cases at first instance, based on application figures up to July this year, it was intended that the task force would have dealt with the entire backlog by July 2000 and from that date would be processing applications within weeks of arrival. However in light of the unexpected increase in the number of applicants, in August and September particularly, and if this level of intake is maintained, the resources available and nature of the operation involved, this timescale for processing applications cannot be achieved without a full review of the resources available for the task. I will be keeping this situation under review and, if necessary, I will seek additional resources to ensure the steady progress in eliminating the backlog, built up principally in the 1990s, is maintained.
There have been a number of important achievements in the asylum area during the past year which emphasise Ireland's continuing commitment to a transparent and fair asylum procedure in accordance with our international obligations. In February the Refugee Legal Service, an independent, comprehensive legal service to assist asylum seekers, was established and operates from the Refugee Applications Centre in Lower Mount Street. A sum of £1 million has been provided in the Estimates for 1999 for the service, which is ring-fenced in terms of funding and resources and will not interfere with the other commitments of the Legal Aid Board. In tandem with the opening of the Refugee Legal Service I have established an independent monitoring committee to ensure a quality refugee legal  service is provided and to investigate complaints from customers of the service.
I also established an interdepartmental working group to review the arrangements for integrating persons granted refugee status or permission to remain in Ireland, including the appropriate institutional structures for the delivery of these important services, which is due to report in the near future.
In February I obtained Government approval for the preparation of amendments to the Refugee Act, 1996, to make it workable. These amendments were brought forward as part of the Immigration Bill which was enacted on 27 July 1999. This clears the way for full implementation of the Refugee Act, 1996. It is hoped to have all sections commenced early in the new year. The House will be aware that detailed regulations are required for many aspects and that the Refugee Applications Commissioner and Refugee Appeals Tribunal must be appointed.
One of these amendments as set out in section 9(a) of the Refugee Act, 1996, as amended, provides that fingerprints may be taken by an officer authorised for the purposes of the Act of asylum seekers over the age of 14 years. Dublin Convention countries are exchanging fingerprint data of individual asylum seekers on a bilateral basis in an effort to bring more certainty into the Dublin Convention process. Because of the unavailability of fingerprint data in the State Ireland is unable to co-operate as fully with its Dublin Convention partners as those states do with each other in detecting duplicate applications EU-wide and ensuring applications are dealt with in whichever state is the proper one, which may be Ireland. My Department is working on the procedural measures necessary to implement this provision and, pending entry into force of Eurodac, it is intended to enter into bilateral agreements initially with some EU member states to exchange fingerprints of asylum applicants. It will also aid the detection of multiple fraudulent applications here.
In February I appointed two additional appeals authorities bringing the total number of appeals authorities to four. Although almost 1,000 appeals have been considered this year to date, more than 1,500 appeals are awaiting to be considered. I am making arrangements to appoint further appeals authorities to create a wider panel to be available to address this demand. My aim continues to be to minimise the time taken from the date of application to completion of the procedure in a refugee determination process which meets the highest EU and international standards.
Regrettably bogus or fraudulent claims are a feature of asylum processing systems throughout Europe. Any reasonable measures taken by member states which have the effect of speeding up the determination process and thereby quickly identifying genuine applicants are to be wel comed. My information is that all other member states have procedures in place for fingerprinting asylum seekers and the Eurodac measure will take this step further by ensuring that the provisions of the Dublin Convention are operated fairly and effectively.
The detailed aspects of the regulation to give effect to Eurodac are still subject to negotiation by member states and the relevant institutions of the Union. It is best that Ireland is in a position to influence the final outcome of these negotiations. Acceptance of this motion in this House and in the Seanad will ensure that we are well placed to do this.
Mr. Higgins: (Mayo): During the course of the various debates and numerous discussions we have had in this House on the issue of refugees, I have always made the point that we have not sought to accommodate people who are not genuine refugees within the legally accepted definition of refugee or asylum seeker. What we have always advocated is a framework of open and fair procedures based on a sound legislative footing with an in-built independent appeals mechanism; a regime based on international refugee and human rights law standards. One has to acknowledge that there has been a dramatic surge in the numbers applying for refugee status in recent years, and this has undoubtedly put a strain on the Department of Justice, Equality and Law Reform. The problem however was that there was not a proper system in place because the Government used the excuse of legal challenge to the specification and qualifications for the post of independent commissioner as the reason for not implementing the Refugee Act, 1996.
Admittedly, an ad hoc arrangement was put in place by which retired public servants were hauled back from their retirement to help cope with the processing of the influx of applications. The physical and administrative arrangements looked shoddy and suspect. We had the embarrassing photograph, flashed around the world, of a queue of 2,000 people on Saturday, 11 October 1997, standing in pouring rain for several hours outside the Department of Justice, Equality and Law Reform at St Stephen's Green, in order to renew their identity cards. In spite of the political and public clamour for a proper statutory structure – on the basis that we were the only country within the EU not to have such – the necessary changes had to be dragged from a reluctant Government in grudging instalments.
It was the striking down of a section of the 1935 Aliens Act that finally provided the spur to the Minister to introduce legislation. A Bill, as the Minister has said, entitled the Immigration Bill, 1999, was published, designed to plug the deportation loophole. Despite Opposition objections the Bill was voted through the House on Second Stage and proceeded to committee. After several  hours on Committee Stage, the Government announcement came that it was going to introduce substantial amendments to essentially recast the Bill by introducing long overdue and a much sought after statutory arrangement for dealing with asylum applications.
Time and time again the Opposition, echoing the huge swell of public support, pressed the Government to introduce work permits for asylum seekers pending determination of their applications. Again, the Minister for Justice, Equality and Law Reform doggedly refused to yield, even to the united voices of IBEC and ICTU. Even from the point of view of sheer economic pragmatism, the Minister refused to relent even given the valid argument that there was a skills shortage evident through several sectors of the economy and also that by granting temporary work permits, asylum seekers could disperse throughout the country. The result of the Minister's refusal has been a concentration of asylum seekers in Dublin's inner city leading at times to unfortunate and well publicised outbreaks of racism.
Within the Government, there were two clearly divergent views. The Tánaiste and Progressive Democrats Leader, Deputy Harney, and her party colleague, the Minister of State at the Department of Foreign Affairs, Deputy O'Donnell, stoutly asserted that asylum seekers must be given work permits. The Minister, Deputy O'Donoghue, meanwhile, held the line that granting such permits would open the sluice gates. Thankfully, the Progressive Democrats persuasion won the day.
Mr. Higgins: (Mayo): They always do, I think. If you couple the slovenly approach together with the well publicised deportations, threats to rush through legislation – like the Immigration, Trafficking and Employment Bill, promised in banner headlines – together with the Minister's threat to use redundant army barracks to house refugees, it all adds up to an image of an opulent but unfeeling and intolerant people.
Image is important and this image of the Irish people is totally at variance with the open and receptive attitude and approach of the vast majority. Therefore, I am almost hesitant and reluctant to sign up to the measure before the House today. However, in view of the facts that: it is a right, enshrined in the Amsterdam Treaty; it is the norm in other countries; in order to co-ordinate refugee policy; and to introduce a greater sense of cohesion, Fine Gael will not oppose this measure.
While we acknowledge that the amended Immigration Act has at last put the structure on a statutory footing, nevertheless, there remains a question mark over how the system still operates. In 1997, four asylum seekers were granted refugee status at appeal stage. In 1998, 40 succeeded at appeal stage. In the first five months of this year, 135 appeals were successful. I commend the Refugee Appeals Tribunal for overturning mani festly wrong original decisions. What worries me, however, is why the Department of Justice, Equality and Law Reform got the original decision so wrong in every case.
All one has to do is look, for example, at the refusal by the Department of Justice, Equality and Law Reform to grant asylum to an applicant from Kosovo. The individual in question appealed the decision. His appeal was heard and granted in June of this year. The applicant was a member of the Democratic Party in Kosovo. He was arrested following a demonstration, held and interrogated for seven days. When he was released he was followed into a park by police who beat him badly and left him in a coma. He suffered internal bleeding and had to have major surgery. His father had paid 10,000 deutschmarks to enable him and his brother to flee to Ireland. For five days he travelled, changing from one container lorry to another, until he eventually arrived in this country. He applied for refugee status and his case was thrown out by the Department of Justice, Equality and Law Reform. Yet, when Mr. Peter Finlay, one of the members of the Independent Appeals Authority, heard his case and saw the 24-inch scar on the man's stomach, he had no hesitation in declaring: “I am going to make this man a refugee. I usually reserve judgments, but exceptions have to be made. He has suffered hugely. He is entitled to certainty.”
What I worry about is how the original decision was so very wrong. The facts had not changed, they were presented to the Appeals Authority the same as they had been originally presented to the Minister's departmental officials. They were rejected by the Department only to be summarily, and thankfully, overturned by a discerning and compassionate Mr. Finlay. Supposing, however, that the applicant had not appealed? He would then have been bundled on a plane at Dublin airport, bundled again through two or three continental airports, to be greeted by the Yugoslav police who originally kicked him unconscious in the public park.
Each of the 135 people whose appeals were allowed up to May of this year have similar tales to tell. They were fully entitled to refugee status and met the criteria, but some individual, dealing with the original determination of the case, got it wrong. One must always allow for an element of human error. However, where human error compromises human rights or human life, it is a very serious matter. The system, therefore, should be constantly monitored and examined to ensure that such wrong decisions do not recur.
Unfortunately, the trend and pattern continues. Last week, I was visited by Angolan, Joao Nkutua Azowa, who has had to flee from Angola because of the very real threat to his life. As is so often the case when a country obtains its independence, the various liberation armies – having ousted the occupier – then indulge themselves in a bloody civil war. It is a case in Angola of the MPLA and UNITA factions being involved in a bloody con flict. Joao Azowa is a member of the Bakongo tribe. In 1991 he was appointed as the person in charge of the Church of the Salvation Army Safeguard, which is an evangelical, philanthropic and charitable organisation. The role of the church is clear, it is to help the poor, the destitute and those who are the victims of the internal strike. His organisation was suspected of having UNITA allegiances. On 20 March 1997 he received an early morning visit from three MPLA officers. He was interrogated, blindfolded and beaten. Several days later, on 25 March, his home was attacked by gunfire. His daughter was shot dead. Joao was arrested and imprisoned. A friend organised his escape from prison. Having made his way to Dublin, he applied for asylum and has been refused. His application is currently awaiting determination at appeal stage. It is obvious from this man's well documented case that he should have been given asylum in the first instance rather than having to wait, wonder and worry what the final outcome would be.
The House will be aware that a European Council meeting entirely devoted to Justice and Home Affairs will meet in Tampere in Finland on Friday and Saturday of this week. One supports the call by Amnesty International to the Ministers to affirm that the harmonisation of asylum and immigration matters at EU level does not undermine international refugee and human rights law standards. One also urges that a clear distinction should be made between asylum and immigration matters in order to ensure that immigration control is not achieved at the expense of human rights.
The signals emerging are, however, quite ominous. There is a growing indication that the issue of re-admission agreements will be among the principal items dealt with at the summit. Essentially, these re-admission agreements will allow the EU to strike deals with certain countries to return speedily any of their nationals seeking asylum within an EU state after it can be established that the individuals in question are not at risk of immediate torture and death. One has to be worried by the indication and the stipulation that the prospect of torture or death has to be immediate. I share the concerns of human rights groups that this fast-track approach to processing asylum applications will lead inevitably to many asylum seekers being denied the protection from persecution to which they are entitled under international law.
The European Council for Refugees and Exiles has justifiably expressed the fear that the EU could view regimes with poor human rights records as safe third countries for failed asylum seekers. One understands that the high level working group on asylum and migration has recently prepared action plans which cater for the possibility of re-admission agreements being concluded with five countries, Afghanistan, Morocco, Somalia, Sri Lanka and Iraq. I am sure the House will agree that even a cursory glance at some of  the aforementioned countries and their human rights record speaks for itself in terms of the likely safety for deported refugees. I ask the Minister to, therefore, treat seriously the observations of Amnesty International on the issues under discussion to be decided at Tampere.
While one welcomes the harmonisation of policy on asylum issues, it seems, however, that what is happening is the adoption of only minimum standards which will result in the lowest common denominator of protection for refugees. Surely what should be aimed for is full compliance with international standards so that maximum protection is afforded to individuals in need of it. The precedence that EU asylum provisions will take over national legislation of member states requires that measures in the field of asylum respect fully the international obligations of member states under international refugee law and international human rights law. Again one would ask the Heads of State and Government Ministers to reaffirm their commitment to the 1951 UN convention on the status of refugees. The member states must commit themselves collectively to fair and satisfactory procedures for determining refugee status in order to identify those in genuine need of international protection. There must be a uniform system of fair hearings in a reasonable time, independent and expert decision-making bodies, individualised and thorough examination of claims, including individual interviews, availability of legal assistance and a right to appeal.
One appreciates that in emergencies, which crop up from time to time, temporary protection has to be used by States for certain categories of people who do not have immediate recourse to individual refugee status determination procedures. There is, however, anxiety that such temporary protection status can be ended by the host country much more easily than full refugee status. One shares the call by Amnesty International for members of Governments to affirm that any regime of temporary protection must always be based on the principle that international protection is a human rights obligation under international human rights law and refugee law and that such a regime should not deprive individuals of accessing a refugee determination procedure to exercise their legitimate rights to an individual examination of their asylum claims. Again, one accepts that such a temporary protection regime should be used only in exceptional circumstances.
I am not opposing the measure before the House, but we are at a critical juncture in determining at international level, particularly at EU level, where we will go in relation to refugee policy. What must be of paramount importance in determining the collective EU attitude is the issue of fundamental human rights. Rather than aim for a minimalist approach, we should be opting for the maximum common denominator approach. At the EU meeting I ask the Minister to ensure Ireland sends across this clear signal. The Minister has a role, an obligation and a clear  duty to set the highest standard at international level rather than adopt a minimalist approach.
Mr. Howlin: Under Article 2 of the European Union Treaty, the member states set themselves the objective of maintaining and developing the Union as an area of freedom, security and justice in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. The European Council is empowered to adopt what are known as flanking measures with respect to asylum relating to criteria and mechanisms for determining which member state is responsible for considering and determining any particular asylum application that might be presented to it.
The Dublin Convention of 1990 sets out the criteria for determining the appropriate member state. It has been made clear by the Minister, in his contribution, that the sole purpose for taking and comparing fingerprints, which is envisaged under the proposal the House is being asked to adopt, the Eurodac proposal, is to assist Ireland and the other member states in complying with its obligations under the Dublin Convention. The regulation before us is justified by the Commission and by the Minister on the basis that it is consistent with the aim of facilitating the application of the Dublin Convention in light of the fact that many applicants for asylum are not properly documented. As the Minister said, some 80 per cent declare themselves to be unsure of how they got into this country in the first instance and there is a lack of evidence of identity, which we accept would make it difficult to establish whether an applicant had previously lodged an application for asylum in another member state of the Union or to determine how he or she entered the European Union in the first instance. The purpose, therefore, is to ensure that an individual who applies for asylum in one state has not already had an application refused in another member state, that an individual who illegally crosses an external frontier from one state from outside the union has any asylum application dealt with in that state and that a person found illegally in the territory of one member state has his asylum application dealt with in the first state in which such an application was made.
This is the first example of an area which has been transferred from the third pillar of the Union, which is the Justice and Home Affairs Ministers meeting at intergovernmental level, to the auspices of the EC. The new Title IV of the EC Treaty, which deals with the Schengen ACQUIS, is not applicable to the United Kingdom and Ireland unless we opt in. Both countries announced their intention to be fully associated with Community activities in the field of asylum matters at a Council meeting on 12 March last. It is a requirement that every exercise of our right to opt in be approved formally by Dáil Éireann.
 I have given deep consideration to the Eurodac proposals, the essence of which requires the fingerprinting of asylum seekers. I understand that such fingerprints will be stored for ten years and then erased. That was the information given to me by the Minister yesterday. They will be erased earlier if the applicant becomes a citizen. If refugee status is granted, I understand the fingerprints will be blocked meaning that the data will be kept for statistical or comparative purposes only. I ask the Minister to confirm that is the case.
Under paragraph 3 of the regulations, the processing of fingerprints and other data by Eurodac may only be for the purposes set out in the Dublin Convention. However, as the Minister reiterated in his contribution this morning, member states may store and use the prints for any purpose authorised by its own national law. The Minister mentioned Article 1(3) of the draft regulation which states: “Without prejudice to the use of data intended for Eurodac by the Member State of origin in databases set up under the latter's national law, fingerprints and other personal data may be processed in Eurodac only for the purposes set out in Article 15(1) of the Dublin Convention”. While it is clear that under the convention the fingerprints may only be used for the purposes of the convention, it seems that it does not rule out the possibility of domestic law utilising such fingerprinting for other domestic purposes. I want the Minister's intention to be clear on this matter. Should the data collected be used for the investigation of national domestic crime and is it envisaged that such legislation will be contemplated by the current Administration?
I ask the Minister to clarify his reference to Article 11 which states that the draft regulation allows member states to use Eurodac if they wish to do so to check whether a person found illegally present in its territory has previously claimed asylum in another member state. The Minister stressed that this article does not create an obligation or a power in Community legislation for a member state to fingerprint persons found illegally present within its territory. A member state can only take the fingerprints of the persons in question if it is permitted to do so under national law. The Minister informed the House that no such provision currently exists in Irish law. Having read Article 11 again, it seems that it creates for member states a facility to check whether a person found illegally present in a territory had previously claimed asylum. How is this to be done if there is no data record? Paragraph 2 sets out the procedure for checking. Under Article 11, how can the cross-referencing be checked to see if such a person had applied, been refused or been processed in another member state if the domestic power does not exist and it is not envisaged will be created, to take a fingerprint? I ask the Minister to address that confusion.
Yesterday on the Order of Business I asked where stands the immigration trafficking Bill. We  often read headlines in the newspapers about dramatic legislation on this issue which is either promised or threatened by the Minister. Many readers probably think the legislation is already enacted. It is listed for Second Stage, but where is it? Will we see it in this session and will the fears and concerns expressed that legitimate supporters of persecuted individuals would come within its remit be taken on board by the Minister?
What happened to the right to work? I understand the Minister's heart was not in the Government decision. I know the tender view of the Minister of State at the Department of Foreign Affairs and of the Tánaiste – I am not normally on the record as ascribing that characteristic to the Progressive Democrats – about giving a right to work to asylum seekers partly prevailed against the strong line taken in committee and publicly by the Minister for Justice, Equality and Law Reform when he used his famous phrase that he would not “add to the pool factor”. I have said publicly that it is wrong for capable asylum seekers to be debarred from working pending the determination of their legal status. I know of specific cases of people who could make a contribution to this economy but who are debarred from doing so, yet employers are crying out for their skills and labour. It seems a bizarre mismatch that able, competent people are looking for a job when there is work available, particularly in my home town. We cannot match the two because the Minister believes we might attract in further labour. I hope we will progress further on this matter and I hope the Minister addresses that in his concluding remarks.
We must set all the individual measures in relation to a comprehensive immigration policy in a coherent framework. What we have seen over the past year is a piecemeal and reactionary response to issues as they arise. When part of the Aliens Act, 1935, was knocked down by the courts, the Minister brought in what he characterised then as emergency legislation to plug a loophole.
However, that emergency legislation which was needed to separate this issue from others coming before the House became fogbound when the Minister decided to graft on further legislation. So the emergency had somehow subsided and the Minister informed the House that the regulations under the Immigration Act, 1999, have yet to be drafted. Presumably, there is still an emergency although the solution conceived and drafted by the Minister is yet to have legal effect.
In terms of a framework of comprehensive immigration policy, surely this State must realise that we are a prosperous, mainstream European country. We have very low unemployment, less than 6 per cent, although we have considerable long-term unemployment. There is a skills shortage in a number of areas. In this context it is logical to have a coherent immigration policy based on acceptable domestic and international guide lines and the rule of law and human rights. We do not have that. Asylum seekers or immigrants who want to live and work in Ireland, for whatever reason, cannot consult the criteria by which their application will be judged. The Minister promised an overarching framework but meanwhile we have the piecemeal approach which is a confusing mismatch of different policies, some advocated as liberal and others as conservative or draconian.
I hope a comprehensive policy statement and immigration Bill will be drafted soon. I will not instance individual cases. As they have contacted Deputy Higgins and probably many other Deputies, a number of asylum seekers have contacted me. I have brought all of those cases to the Minister's attention. What characterises all of them is the grave difficulty these people have in understanding how and when their applications will be processed and the uncertainty of their status. I welcome the improvements initiated by the Minister in processing applications. However, more needs to be done and I hope debates like this will spur the Minister on to providing whatever resources are needed to provide a reasonable timeframe within which applications for asylum can be humanely processed. The appeals mechanism also needs to be strengthened and expanded as it is in everybody's interests to bring these matters to finality.
I will return to the core of this debate. The contents of the Eurodac proposals cause me some disquiet for the reasons I have given. Normally in our jurisprudence, the only people who can be fingerprinted are people who are suspects in a criminal investigation or people who are convicted of a criminal act. It sends a dangerous signal if, uniquely among Irish citizenry or people in our national territory, asylum seekers are subject to fingerprinting because in the psyche of many people, to be fingerprinted is to be criminalised. There would be an outcry if any other group in society was singled out for fingerprinting. I am sure a cogent case could be made for fingerprinting many groups, if one was of that disposition. Therefore, I have the gravest misgivings about supporting the proposal to fingerprint asylum seekers and allowing it to be passed by this House.
I hope the Minister will answer the questions I put to him and allay my fears. On balance, the Labour Party, subject to the Minister's response, will not oppose his proposal. However, we do so following careful consideration and with the greatest reluctance.
Caoimhghín Ó Caoláin: This proposal will give effect to the further criminalisation of asylum seekers in this State. I am very concerned at the proposition in this motion. The Minister said the purpose of the proposal for Ireland's approval of the adoption of and involvement in the Eurodac system is to facilitate the comparison of fingerprints of applicants for asylum and certain other aliens. How will this comparison be carried out?  What methodology will apply where the fingerprinting of asylum seekers will facilitate a comparison even though there was no fingerprinting process previously? There is an anomaly in the very notion. It is, in effect, a further measure that exacerbates an already uncomfortable climate for many people who come to our shores seeking asylum, the greater number of them deserving of a welcome and an opportunity.
Far from the answer sought by Deputy Howlin to his question to the Minister regarding other domestic uses of this proposed fingerprinting process, is the Minister's statement that, “In addition to establishing whether an asylum applicant has also applied for asylum in another member state, Eurodac will establish whether she or he has made any previous applications for asylum under another name in Ireland”. He then adds the telling line, “Clearly this will also assist in identifying any abuses of our welfare payments system”. This is but a glimpse of the intent of the Government and of the international community represented in Eurodac who will apply it in a myriad of ways. It represents a fundamental infringement of a basic human right.
As a public representative and elected Member of this House, I must ask if this is a measure we would wish to see applied to our young emigrants overseas, in Britain, the United States and other destinations where young Irish people continue to go year after year, either out of economic necessity or seeking work experience. They are not all going with visas and green cards in their pockets – the greater number of them are exiting these shores and entering other countries in exactly the same way as the group at which this measure is targeted. They are illegal immigrants in many other jurisdictions. This is a serious problem.
At this juncture, given the tenor of the contributions by the members of the two main Opposition parties, despite their declared reservations, it is clear that this measure will be passed. I have yet to be convinced. I am seriously and genuinely concerned. I work at the coalface of the asylum issue in my constituency and have had the experience of working with people who are seeking a new beginning on our shores, people who are fleeing persecution and oppression in other lands. I have no option but to appeal to the Minister at this late juncture to withdraw this proposal. I have no prospect of success in that appeal but it is my responsibility to make it on behalf of those who have worked on the asylum issue and the people who are seeking a fair, open and warm hearing from the Irish people.
The continuing agony of those who remain in a limbo land in this country should be recognised by the House. There must be a speeding up of the processing system and that should not be taken to suggest an approach that says “no” first and then must be persuaded to change. On the contrary, there should be a humane and understanding regime that reflects the dignity and fears of those  who are seeking asylum. It is a matter of weeks to the millennium. The Government has – this is not a disrespectful remark directed at the Minister in a personal way, far from it – an undoubted confidence deficit within the broad community which views with favour this opportunity for these people. It has a great deal of catching up to do in establishing its bona fides as a caring Government, open to the needs and hopes of people who have sought its help.
I hope that now, in the last weeks before the turn of the millennium, there might be a gesture in this regard from the Government which would reflect the wishes of a significant body of informed opinion. A grand gesture of accepting those who are currently within our shores could be made by Ireland which would truly reflect the Christian spirit that the millennium is ostensibly meant to represent. I urge the Minister to seriously consider my appeal this morning in that regard, even if he is unlikely to take note of my appeal vis-à-vis the proposal before the House.
Mr. Higgins: (Dublin West): I strenuously oppose this proposal by the Government. This is an extraordinarily sinister development. It is the first time we have encountered a proposal with such sinister implications. It is a formula for forcibly fingerprinting people who are in a vulnerable position and for transmitting that personal information to the police forces, immigration authorities and God knows who else in every country in the EU. It is a measure that would befit a totalitarian regime such as existed in Stalinist Russia or Nazi Germany, not a country the majority of whose people will stand and defend democratic rights and personal freedoms. It is the type of measure that has featured in futuristic movies since the publication of George Orwell's classic “1984”.
It has extremely serious implications for people in a vulnerable position. We are aware that this Government takes no account of the vulnerability of the many people who come to Ireland seeking refuge. The Minister for Justice, Equality and Law Reform and the Minister of State told the Dáil on more than one occasion two years ago that 90 per cent of applicants for refugee status were bogus. This was before their cases were heard. We cannot expect, therefore, any real sympathy from the Government for people who are forced to flee their homes and seek refuge elsewhere.
There are alarming developments in attitudes in some countries towards asylum seekers and refugees and the measure before House will have a direct impact on them. People will be aware of the results of the recent election in Austria in which the so-called Freedom Party under Jorg Haider made substantial gains. It is a distinct possibility that the Freedom Party and its leader will be in government either alone or in coalition – hopefully neither – in Austria within the next few years. That party has an extremely racist approach to people seeking refuge. It is an openly hate filled, anti-immigrant policy.
The effect of this measure before the House is that information relating to people applying for refuge in this country can be transmitted to a state with such a Government or police force. Under the hateful Dublin Convention, therefore, this country will insist on sending somebody back to, for example, Austria where Haider and his party are in power. The person's fingerprints will already have been transmitted. One can see what a dangerous position that is for the vulnerable refugee or refugees. They could face being sent back to regimes where they would face certain death.
The Minister should consider the comments to the Dáil a few months ago of one of the Government supporters, the former Minister, Deputy O'Malley. He spoke about the treatment of people seeking refuge and asylum in Shannon Airport in years past who were bundled immediately back onto aeroplanes on which they had arrived and were sent back to the country from which they were seeking refuge. Deputy O'Malley said he had no doubt that some of those people were executed. That is the reality.
This is not a theoretical debate, we are talking about real people, real lives and a real threat to the lives of the most vulnerable people in Europe. By introducing this measure and, no doubt, later introducing legislation to forcibly fingerprint people in this position, the Minister is leaving such people open to that type of danger. That is the reality.
There is an increasing tendency among Governments and some right-wing political parties in Europe to scapegoat people seeking refuge, to blame them for many problems for which they are not responsible and to create in Europe an intolerant fortress in line with their desire to create a European army and economic unit that can exploit at will the raw materials and resources of the countries from which many refugees are forced to flee. However, when the victims of the regimes with which they so willingly deal arrive on these shores the reception they get is one of utter intolerance.
From the first day it took office this Government's attitude towards asylum seekers has been disgraceful. People are crying out for work and employers are crying out for workers. The Government grudgingly said some refugee applicants would be allowed to work but there has not been any extension or proper implementation of that since. That bespeaks the attitude of this Government. If this measure is put into effect for those seeking refuge here, I wonder how long it will be before this or a Government in the not too distant future will come into this House looking for the same right in regard to certain categories of Irish citizens residing in this State. We have a comparable position with the infamous multi- agency vehicle checkpoints introduced recently by the Government. Citizens can be ordered out of their cars by the Garda and cross-checked by social welfare inspectors, a measure that arouses great anger among ordinary people. I hope their anger will result in this practice being discontinued. Will we see similar measures for certain categories of people but this time taking fingerprints?
This country exported millions of its people. In the eighties it sent tens of thousands of its youth, many from the Minister's constituency, across the seas. Politicians went on bended knee to the United States administration asking it to treat our illegal emigrants well and give them dignity and status. Have the right wing politicians who dominate this House any memory of, gratitude for or understanding from that experience for people in such vulnerable positions as the applicants for asylum are at present? I oppose the motion.
Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): I thank Deputies for their contributions. The Treaty of Amsterdam requires the Council to adopt minimum standards in the field of asylum in relation to procedures, reception conditions and to the refugee definition within five years. Ireland is in agreement in principle with the concept of a single European asylum system which should be based on the provisions of the Treaty of Amsterdam and its related protocols. As the Fourth Protocol provides that Ireland and the UK shall not take part in the adoption of measures pursuant to Title IV of the Treaty, Ireland is committed to effective co-operation in the justice and home affairs areas and while the various protocols attached to the treaty will obviously influence our position Ireland's approach will be a positive one within those confines. My priority is to ensure that persons genuinely in need of international protection will receive it.
Any proposals from Europe towards a minimum standard in the field of asylum seekers will be a further step towards strengthening our asylum procedures in Ireland. Before Ireland can exercise its opt in right to any EU harmonised system of asylum pursuant to Title IV of the Treaty of Amsterdam approval will have to be sought by way of motion to be moved in both Houses of the Oireachtas in accordance with Article 29.4.6 of the Constitution. Eurodac is a further step towards strengthening the purposes of the Dublin Convention by providing an effective tool to determine the members state which is responsible pursuant to the Dublin Convention for examining an application for asylum lodged in the member state.
We owe it to genuine refugees who are entitled to and deserving of protection to ensure that applications are dealt with quickly and fairly and that they are not identified simply as part of a large and well organised effort to evade immigration controls.
 I have outlined already some of the more recent important achievements in the asylum area over the past year. I have also put other measures in place since I came into office to ensure that our asylum procedures are fair, reasonable, transparent and in accordance with our international obligations and humanitarian tradition in this area. The one stop shop set up in Mount Street at present houses officials processing asylum applications, the independent appeals authorities, the refugee legal service and the Eastern Health Board's refugee unit and medical screening and additional staffing which I am keeping under review.
Some of the issues raised by Deputies demand a response. Not least of these is the right of asylum seekers to work. Unfortunately, the measure agreed by the Government has been misinterpreted by people in this country and deliberately misrepresented by international traffickers. The position as regards the right of asylum seekers to work in this country is as follows. The applicant must make an application for asylum prior to 26 July, 1999, be awaiting a final determination of his or her application and has been complying with his or her obligations as an asylum seeker. My understanding is that, to date, there have been some permits granted but very few. I want to make it abundantly clear in case there is any doubt about it, people who come to this country as asylum seekers do not have an automatic right to work. Such a right does not exist. It has been stated that is the position but it is not. The terms on foot of which asylum seekers are entitled to work have been clearly set out. I accept they are restrictive. There has been a considerable increase in the number of asylum seekers here in recent years and never has there been a higher increase than in the months of July, August and September this year. It must be recalled that six years ago it would be unusual to have 100 applicants. In the first week of this month alone there were in the region of 259 applicants. They are the facts. That is the difficulty I have in identifying genuine refugees.
Mr. O'Donoghue: My understanding is that the number of work permits granted is 11 and that there were 39 applications. That is the latest figure available to me. International traffickers are misrepresenting the position and getting unfortunate people to believe that if they come to this country they will have a right to work immediately. That is not something that exists without restrictions in any country I am aware of but this is the impression that is being created. That is not correct.
There were two initiatives last July. The other was the leave to remain to parents of Irish born children. That is something everyone will welcome. In recent times the British Government has announced that it is moving to direct provision.  There is little doubt but that announcement led people to move to this country to seek asylum. That is a fact. I emphatically reject the point raised by a number of speakers with regard to treating people unfairly. We have in place one of the most fair, open and honest systems for asylum seekers that exists anywhere in Europe. Every person's application is considered on its merits. Deputy Higgins instanced a case or two where a person's application was allowed on appeal but—
Mr. O'Donoghue: —the job of the appeals authorities is to make absolutely certain that if a genuine applicant slips through the net, he or she will get refugee status on appeal. I want to make it perfectly clear that there is a fundamental difference between a refugee and an illegal immigrant. A refugee is entitled to the protection of the State in accordance with the 1951 convention, and Ireland adheres to its humanitarian and international obligations in that respect. Unfortunately, an illegal immigrant is in a different category. An illegal immigrant is not entitled to stay; an illegal immigrant is obliged to leave. I accept fully that many such people may be quite unfortunate, and it would be wrong of me not to say that, but it would be equally wrong of me to tear up immigration law.
Mr. O'Donoghue: That is not something which I can do. Deputy Joe Higgins attempted to compare this little island on the periphery of Europe with an open economy subject to the vagaries of economic movements around Europe and the world with what is the economic engine of the world, the United States of America. That is neither a valid nor a fair comparison. I have also heard comparisons made with Ireland in the latter part of the 20th century with the vast continent of Australia in the 19th century. That is not a valid comparison. Deputy Joe Higgins appeared to be under the impression that if an Irish person seeks asylum in the United States, for example, he or she will not be fingerprinted. I know of no country where a person seeking asylum does not have his or her fingerprints taken. That is the position. That there was not fingerprinting in this jurisdiction previously related more to the fact that we did not have a whole host of asylum seekers in the jurisdiction. It is a recent phenomenon. We have to balance our obligations to genuine refugees with our obligations to our citizens. That balance has to be reached. I cannot accept that just because an individual arrives on these shores, he or she should have precisely the same entitlements as a citizen of this country. That is not something which exists in any other jurisdiction  and I cannot understand why I am being asked continuously in this House and in committees of the House to introduce such a system.
With regard to the policies, in Deputy Howlin's words, being piecemeal, itty-bitty or reactionary, none of those statements is true. Deputy Howlin and Deputy Jim Higgins were in an Administration which presided over chaos in this area.
Mr. O'Donoghue: Thousands of applications were backed up and people did not know if their applications would ever be heard. If it had continued, the chaos could only have got worse. When I entered into this position—
Mr. O'Donoghue: —a couple of people were trying to handle thousands of applications. I opened a new office and a one stop shop. I provided legal aid, interpreters and the staff to deal with the applicants. None of that was done before. The roots of much of this problem lie with the maladministration of the rainbow coalition Government in this area during its period of office.
In regard to legislation, the rainbow coalition Government demanded again and again that the Refugee Act of 1996 be implemented and I supported it here in this House. The Act was passed but the rainbow coalition Government did not implement it, and it had until June of 1997 to do so. I wonder why that was the case. It was for reasons of pragmatism. The provisions in that legislation were no longer reflective of the problem which existed and could not deal with it. That was the reason. I have said I was committed to implementing the Refugee Act of 1996 and that Act will be implemented shortly. The regulations in relation to the Immigration Act should be prepared within a matter of days. There was a problem with drafting but they will be prepared and it is true that, arising out of that, there will be deportations. That gives me no pleasure but I have to be honest and say the issue of deportations exists in every jurisdiction which has immigration law. That is the position.
I understand people have doubts about the issue of fingerprinting. I have said how it exists in other jurisdictions. I have explained how the Eurodac regulation will provide for the comparison of fingerprints taken here with fingerprints taken in another member state or a signatory country. The reason for that is to ensure that if an individual has made an application in another member state, it can be identified quickly and the  individual concerned returned to the state in question. This is not all one way traffic. If, for example, a person arrives in this jurisdiction first and then travels on to another EU state, the individual can be returned here.
With regard to internal matters – fingerprinting for internal purposes within the State – that is something which is law in accordance with the recent Immigration Act. While one cannot and must not confuse these fingerprints with fingerprints taken from suspected criminals, it is legitimate for those fingerprints to be utilised to ensure there are not multiple claims by one individual because that can lead to social welfare abuse. I am sure everybody will accept that if that can be prevented, it should be. This Utopian belief that one can have open borders and allow everybody to work and have no controls might have existed in George Orwell's mind, in one of his greater flights of fancy—
Mr. O'Donoghue: No. There is evidence to the effect that some people – I do not want to tar everybody with this, it would be wrong of me to do so – are involved in multiple claims for social welfare. In the future we will have fingerprints of all people who apply for asylum in this country and it will be possible to prevent multiple claims. That applies only to a minority but it is something about which I and my officials are concerned.
Mr. O'Donoghue: With regard to the possibility of people being sent back to a country from which they can be forwarded to a country where they are fleeing persecution or even death, the non-refoulement rule is clearly set out and we may not, in accordance with the law of this country or the convention, send an individual back to a jurisdiction from where that individual could be sent on to a third country and possibly face persecution or death. They are part of the current rules and, therefore, I again reject Deputy Joe Higgins's comments in that regard.
Mr. O'Donoghue: I also want to deal with the issue of what Deputy Ó Caoláin, if I am quoting him correctly, described as a fundamental  infringement of an individual's human rights. There is no question of us interfering with any individual's fundamental human rights. Every individual, irrespective of the status he or she is found to have in accordance with our immigration law, will be treated with the greatest dignity and respect. That is, obviously, what must be expected of us as human beings. However, that does not mean, in turn, that the rules can be left unenforced.
I have read commentaries, some of which were quite personal – which does not worry me – in regard to this matter in various newspapers in recent years. However, those who are critical of our immigration laws fail to recognise that, while immigration law is an unpleasant business at the best of times, it is a necessary one, unfortunately. That has been recognised in every country in the European Union, and beyond, over a prolonged period.
Caoimhghín Ó Caoláin: Will the Minister respond to my appeal for the Cabinet to even consider making a special gesture, in the light of the upcoming millennium, to those who are here, some for a very protracted period of time, and whose limbo status continues to create great difficulties for them in their daily lives? Will he consider their position as a grand gesture and an international statement from this State?
Mr. O'Donoghue: Ireland has made many international statements over the years in terms of its humanitarian obligations, many of which have been quite tangible, to say the least. I reiterate our position – we adhere to the Geneva Convention and the implementation of the Refugee Act, 1996. No individual coming to these shores who requires protection and who is a refugee will be denied it. All the existing procedures are geared towards assisting such an individual, to the best of our ability.
The position in regard to applicants for asylum outside of that is that we are endeavouring to ensure their applications are dealt with expeditiously. We are reaching the stage I promised, which is that we would deal with each application within a period of six months. I intend to fulfil that commitment. If that requires further resources in the light of the amount of applications now in hand, I will not be slow to put those resources in place.
I will monitor the situation quite closely. However, I must not send out the wrong signal. It is quite clear to me, this Administration and the officials working with me in this area that international traffickers are misrepresenting the law in this country to unfortunate people.
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