Friday, 2 July 1999
Seanad Éireann Debate
Minister of State at the Department of the Environment and Local Government (Mr. D. Wallace): The Bill before the House deals with three important areas. Its passing will fulfil a commitment in the Government's programme to bring into effect the Refugee Act, 1996, which has lain on the Statute Book, largely unimplemented and unimplementable, since its enactment. The Bill also sets out in statutory form the principles, powers and procedures governing an important element of general immigration law relating to the deportation process and gives statutory security to the other areas of immigration and residence law governed by the Aliens Act, 1935, and the orders made thereunder.
To put the Bill into context I will set out a brief history of immigration law and practice over the past decade or so. The Aliens Act, 1935, and the principal order currently in operation under it, the Aliens Order, 1946, have provided the legal basis for the operation of entry controls, residence requirements and removal procedures for non-nationals in the State. The 1946 order has been amended over the years, most extensively by the Aliens Order, 1975. During those years, in which Ireland was primarily a country of emigration rather than immigration, that code of law  largely served its purpose. The primary and secondary legislation and the manner of its operation had survived occasional court challenges to various aspects. However, with the improvement in Ireland's economic position in recent years there was a growing perception of a need for more modern provisions that would reflect today's changed environment, socially and legally.
In the related area of asylum and refugee law, Ireland had been a party to the 1951 UN Convention on the Status of Refugees since its accession to the United Nations in the mid-1950s, but there emerged a growing need for a statutory procedure to reflect our international obligations which had been fulfilled on an administrative basis on the few occasions on which the need arose. In 1993, the Minister's predecessor, former Deputy Máire Geoghegan-Quinn, set about this work and prepared the first set of legislative proposals for a refugee Act. On the change of Government in 1995, the new Administration built on those proposals and brought forward the Bill which is now the Refugee Act, 1996.
With the increasing improvement in the Irish economy during the 1990s, there has been an increase in those wishing to come here to seek their fortune. Most of those who have come here have done so by the legal route, which for non-EU nationals means obtaining a work permit and a visa, where necessary, and the contribution which immigrants can make to the diversity of our social fabric is as significant and welcome as the mutual economic benefits to be gained. Alongside this inflow, there has also been a much smaller, but in relative terms, dramatic increase in the number of people entering the State illegally, many of whom on arrival or, more usually, some time after arrival in the State, seek asylum on the basis that they are in fear of persecution in their countries of origin.
There was a 100-fold increase in asylum applications in five years, from 39 in 1992 to 3,883 in 1997. The number of asylum applications being made per annum is not large in absolute terms. However, in comparison with our European neighbours on a per capita basis, it was the fourth highest in the EU in 1997, the latest year for which figures are available. More importantly from a domestic point of view, before the Refugee Act could be implemented, the numbers of applications had outstripped the capacity of the structures envisaged in the Act to deal with them.
This structural difficulty was two-fold. First, under the Act one person, the Refugee Applications Commissioner, must personally consider and make a recommendation on each of 4,000 cases or so per annum, with no power to delegate this function. Second, even if this difficulty was surmounted, all appeals from negative, first instance recommendations would have to be heard orally by the one Refugee Appeal Board  provided for in the Act. The most cases the appeal board could hear in one year, sitting full-time and hearing two cases each working day, would be about 400, so unless there were a 90 per cent acceptance rate at first instance, a rate not achieved by any asylum process in the world, there would be another major bottleneck.
As a result of these difficulties, the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, started on a series of steps in line with his policy of ensuring that every non-national genuinely in need of the protection of this State is identified and recognised as soon as possible after arrival, so that they can immediately start the process of integration into Irish society and take up the rights to which they are entitled under the Geneva Convention on the Status of Refugees. The steps taken involve the following areas: staff resources, a dedicated refugee applications centre, improved administrative procedures and a refugee legal service.
As regards staffing, there are now 122 people dealing with asylum applications, as opposed to 14 when the Minister took office. In October 1988, following the Minister's initiative, a dedicated one-stop shop opened in Mount Street, Dublin, bringing together under one roof the staff of the Department dealing with applications, the Eastern Health Board which deals with the health, housing and social welfare needs of asylum seekers, the offices of the United Nations High Commissioner for Refugees and hearing rooms for the independent appeal authorities.
With the statutory procedures clearly unworkable and the volume of applications showing no sign of abating, the Minister set about creating a new administrative procedure, agreed in consultation with UNHCR, to allow the applications already on hand and new applications to be dealt with in a reasonable timescale, and with the important feature of a legally-aided review hearing before an independent appeal authority for applications rejected at first instance.
Earlier this year, the Minister signed the necessary order to enable the Legal Aid Board to provide full legal services to asylum seekers at all stages of the process. The Refugee Legal Centre, through which the Legal Aid Board provides this service, is also located in the one-stop shop.
Section 11 of the Bill, which proposes to amend the Refugee Act so as to make it workable, represents the Minister's fifth major initiative since taking office in the interests of ensuring that asylum seekers get a fair and expeditious hearing of their applications. The main features of the approach taken in section 11 are as follows: the changes will empower the Refugee Applications Commissioner to delegate functions, including that of making recommendations on asylum applications; the Bill replaces the single five-member Refugee Appeal Board with a multi-member Refugee Appeal Tribunal consisting of  lawyers of at least 10 years' experience, each sitting alone to hear appeals and which reflects to some extent the position under the current administrative arrangements; some technical procedural changes are proposed so as to ensure that the Refugee Applications Commissioner will have responsibility for applications from the time they are made to the point where a final recommendation, after appeal, if any, is made, and to relieve the UNHCR of the burden of over-information. These latter changes are being made at the request of UNHCR which is concerned that if the present requirements in the Act were put into effect, it would be snowed under with more information than its Dublin office would be capable of handling. The changes ensure that the UNHCR will, on request, be able to obtain complete information about any case it wishes.
In line with the other 14 EU member states, and many other countries of potential asylum, provisions are being made for the gathering of fingerprint data from asylum seekers to detect and deter multiple applications in Ireland and other Dublin Convention countries. Modifications are included to the procedure dealing with the applications for asylum which the commissioner considers to be without merit. Finally, as an innovation, the Minister is taking the opportunity to set up a statutory refugee advisory board with representatives of refugee and asylum interests, relevant Departments and the Refugee Applications Commissioner. The UNHCR will have an observer role on the board. The board will provide regular reports every two years which will cover the operation of the Act, information and comment on asylum policy and refugees, proposals for amending legislation, and the practices and procedures of public and private bodies as they affect asylum seekers and refugees.
Once the Bill is passed, work will start on the detailed regulations required under the Refugee Act to flesh out the procedures. The Minister will also put in place with the Civil Service Commissioners the steps necessary for the process of recruiting the refugee applications commissioner and the chair of the refugee appeal tribunal. We can look forward to having our asylum procedures on a statutory footing, in fulfilment of the commitment in the Government's programme, by the end of 1999.
An essential concomitant of any fair and effective system designed to identify and recognise those who are in need of the protection of the State is that there should be a means of removing from the State those who are identified by that system as not being so in need. This is emphasised by the UNHCR, acknowledged by such commentators as Trócaire and the Irish Commission for Justice and Peace and recognised by most commentators on the question of refugee protection.
Not just in the context of asylum, but in the  broader area of immigration controls generally, the need for an effective deportation procedure is also universally recognised. The courts have identified the duty of the Executive to protect the common good by the exercise of controls on the entry, residence and removal of non-nationals. Mr. Justice Geoghegan's High Court judgment and those of the Supreme Court in the Laurentiu case, for example, cited with approval a passage of Mr. Justice Gannon in the 1986 Osheku High Court case which characterised control of the entry of non-nationals into the State, their departure, activities and duration of their stay within the State as being in the interests of the common good, a fact “recognised universally and from earliest times”. He went on to say that “the integrity of the State, constituted as it is of the collective body of its citizens within the national territory, must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the Constitution.”
The position at present, however, is that in the wake of the Laurentiu case to which I have just referred, there is no statutory means of implementing the deportation element of the State's court identified duty. In that case the courts found that the manner in which the Oireachtas, in the Aliens Act, 1935, conferred power on the Minister to make secondary legislation governing deportation orders was inconsistent with the provisions of the 1937 Constitution.
In the Bill's approach to setting out new procedures, the two watchwords, drawn from the Laurentiu judgment in the High Court are principles and procedures. The principles guiding the deportation process are set out at section 3(3), which sets out who is liable to be deported – not, I should emphasise, lest there be any perception to the contrary, who must be deported – and at section 3(6), which lists the matters to which the Minister must have regard before making a deportation order in each case. The setting out in clear statutory form of these criteria and considerations is designed to ensure that individuals and their legal advisors are in no doubt regarding the circumstances in which the question may arise and the matters which they must address if it arises in relation to them. This is in line with the recommendations in the judgment of Mr. Justice Geoghegan in the Laurentiu case.
The section also spells out the procedures which must be gone through where the question of deportation is under consideration. First, unless a person has already been through a statutory procedure which involves its own notice procedures, he or she must be informed of the fact that deportation is under consideration and of the reasons on which a decision is to be based. There  is an opportunity to make representations and an obligation on the Minister to consider them. These procedures are modelled on the administrative procedures which had for some years been in place in the Department in respect of the deportation process. I might mention that in the Laurentiu case the High and Supreme Courts both found that these procedures were proper in themselves and properly followed in the particular case.
The Bill sets out what is required of the person in compliance with the order in any case where, after the necessary consideration, a deportation order is made. In particular, in section 3(9)(b) there is a three month period of grace for an employee or business-person who is being deported after a stay of five or more years in the State. This applies except where the deportation arises out of criminal proceedings against the person. Only where the person fails to co-operate with the immigration authorities in complying with the order is there a question of detention for the purpose of achieving compliance. If a detained person takes court proceedings to challenge the validity of the order, the court hearing those proceedings can decide whether the person can be released for the duration and, if so, on what conditions, if any.
In section 4 there is an important but very rarely used power to exclude a person from the State – in effect to prevent such a person from ever coming here – for reasons of national security or public policy. This power is designed to prevent notorious war criminals, offenders against human rights or the like from seeking to come here. Its two most recent uses, one dating from the 1970s and the other from the 1980s, related to a Nazi war criminal who had property interests here and to a general in the security forces of the South African apartheid regime who is now, I believe, serving a lengthy prison sentence in South Africa. Such is the seriousness of the exclusion order and the reasons which would give rise to the making of it that the Minister considers it appropriate that there should be parliamentary review of each exercise of the power. For that reason section 12 contains a provision for the laying of each order made under this section before both Houses, with a provision that either House may annul it by motion passed within the specified number of sitting days.
The Bill is, as I have indicated, designed to set out in a clear and open way the principles and procedures in relation to one aspect of immigration law, namely, deportation. I need hardly persuade Senators that there is a need to do the same in respect of all aspects of immigration law, covering pre-entry procedures, entry conditions and procedures, residence requirements and so forth. Work is advancing in the Department on a major Bill to replace, modernise and codify the law on immigration and residence in the State.
 The Aliens Act, 1935, is showing its age. It is no longer adequate to the needs of the modern Ireland. The Minister's plan is to overhaul this Act comprehensively by replacing it with a modern code of immigration law which will provide a solid legislative framework for the development and implementation of fair and sensible immigration policies to meet the changing needs of Irish society. The new legislation will also, of course, guarantee the rights of non-nationals in their dealings with the law. The intention is that this legislation will be ready for publication early next year. In effect, this will be the first ever fundamental review of the State's principal legislative measure on immigration and I have no doubt that it will give rise to an informed and considered debate both inside and outside the House.
The terms of the Laurentiu judgments in the High and Supreme Courts indicate that there is a potential for challenge to other areas of the Aliens Act and the orders made thereunder, based on the similar application of the successful arguments in that case. In order to guard against such a challenge between now and the enactment of these comprehensive proposals, section 2 of the Bill provides that the Aliens Orders made under the 1935 Act are to have effect as if they were Acts of the Oireachtas. This is a stopgap measure necessary to ensure that the State is able to continue to exercise controls on the entry of non-nationals and their residence in the State, pending the introduction of the comprehensive replacement legislation.
The Minister's officials have, in the context of the current Bill, engaged in a round of consultations with many of the non-Governmental organisations which concern themselves with refugee and asylum matters. Many of their concerns have been taken on board in amendments which have been made to the Bill in its progress through the Dáil. Others have been noted for addressing in the context of the comprehensive immigration proposals under development. I expect that many more interests will wish to express their views so that they can be taken into account in that process. The Minister would welcome any contributions which wish to address themselves to the wider immigration issues in order to ensure that the new comprehensive legislation will be as effective as possible in meeting the diverse requirements of today and the future.
It is important that the present Bill be enacted so as to pave the way for the implementation of the Refugee Act, to establish principles and procedures for the exercise by the State of the power to deport non-nationals and preserve certain existing controls in relation to immigration to and residence in the State.
Mr. Connor: I welcome the Minster of State to the House. Although I understand the reason, it is regrettable the Minister is not here because I would like to say much of what I want to say directly to him. That is not to take from the Minister of State, but the Minister who is responsible primarily for this policy is the Minister for Justice, Equality and Law Reform. For that reason, it is regrettable he is not here.
This offensive Bill, which had been bludgeoned through both Houses of the Oireachtas before the summer recess, is a disgrace. This Bill is a total misnomer. “Deportation and weed out the aliens” would be a far more appropriate title. It proceeds from a Minister who has no understanding of the international migratory phenomenon taking place all over the world, who dislikes foreigners and non-nationals and who revels in the secrecy and lack of transparency in the Department he leads. It also proceeds from a Minister who knows that there is a sector of the population who receive their information from the worse elements of the tabloid press and who are often deeply prejudiced against non-nationals. Our Minister always likes to play to that gallery.
Immigration, illegal or otherwise, is not a problem in the constituency that I have contested electorally. I am sure many of my colleagues would agree with me, particularly my colleagues in the other House and no doubt my colleagues on the Labour benches, that during the last general election campaign immigration was a major issue in many areas, particularly in Dublin and other large cities. It was also to some extent an issue in Kerry because of the natural attraction of that county to the people who come to visit this country.
People at the receiving end of the anti-foreigner, anti-immigration flak were the then Government candidates because of a perceived notion, well fueled by Fianna Fáil and its tabloid informed friends, that Deputy Owen was soft on immigrants and refugees and that she was a puppet on the issues put forward by Deputies De Rossa, Spring, Rabbitte and all the others who want to flood this country with aliens and foreigners. Many of the echoes of Enoch Powell's views during election campaigns in the United Kingdom in the 1960s can be found to a great extent in Ireland, which is a very ugly phenomenon. Many of the sentiments, such as, if you want a nigger for a neighbour, vote Labour, were put abroad. I regret that many Fianna Fáil candidates, particularly in this city, play to that gallery of ugly prejudice for the cheapest and most base of political reasons. I am not convinced that this Bill, notwithstanding the High Court decision, does not bear some influence from that nasty period and that nasty part of a campaign.
The 1951 Geneva Convention relating to the status of refugees and migrants and its 1967 Protocol remains the principal international legal instrument applicable to the protection of asylum  seekers and refugees. It provides for the definition of refugees and establishes a number of principles with a view to protecting people from persecution and refoulement. Ireland has signed the Geneva Convention, but its terms have never been incorporated into our domestic law. This allows the Minister to flout the terms of the Geneva Convention at will.
A number of the provisions of the European Convention on Human Rights are applicable to refugee and asylum seekers. These include article 3, which prohibits torture and inhuman and degrading treatment and punishment, article 5, which deals with the deprivation of liberty, article 8, which provides for respect for personal and family life and article 13, which provides for an effective remedy. Under any of those four articles of the European Convention on Human Rights, I am convinced this country could have been found guilty in the past in relation to the way we dealt with the affairs of refugees, migrants and asylum seekers. The United Nations High Commissioner for Refugees, UNHCR, is responsible for ensuring compliance with international refugee law and the UNHCR has laid down clear procedures and criteria, which should be referred to during status determination procedures.
We are bound under the Amsterdam Treaty, which we signed in 1997, to adopt within five years minimum standards in harmony with our partners in the EU on asylum and refugee procedures, but we have not even taken a first step in the direction of adhering to that treaty obligation, purely because of the Minister's lack of enthusiasm and support.
Access to asylum procedures is a condition sine qua non of international protection with visa requirements and carrier sanctions. It is often the case that poor or non-existent access to status determination at our airports, ports and other points of entry make a mockery of internationally established rights in this country.
A decision on admission or rejection of an application in this country is not taken by a specialised independent authority. While that position will change as a result of the implementation of the Refugee Act, heretofore an independent specialised authority has not been in place to make those decisions. Too often decisions on these matters lay with the Minister, and usually that was contrary to the interests of the applicant. Even in manifestly unfounded cases, as they are called, where clearly the applicant is an illegal immigrant, the situation is unsatisfactory here. The right to a proper interview is not guaranteed and the guidelines we use for returning a person to a safe country of origin are neither clear nor satisfactory. Nor do we seek, when deporting a person to a so-called safe country of origin, a guarantee of access to proper procedures there on his or her return.
 The duration of a stay at a port, airport or another point of entry must be defined by law, as must the duration of detention at any reception centre, pending the outcome of the determination procedures. The usual length of the determination procedure here is a disgrace. It is scandalously long in the average case.
Since this Minister took up office incessant complaints have been made from people seeking entry to this country about the manner in which they are treated and the minimum rights and facilities that are often afforded to them. Women and men are not always accommodated separately, if they wish to be. Facilities to keep families together are not always provided. Interpreters whose presence during the interview procedure is an absolute necessity, are not always available and are rarely available for people forced to prolong their stay because of the backlog, and often the breakdown, in the determination procedures.
I do not know what, if any, special arrangements there are for unaccompanied minors – none, no doubt. Unaccompanied children should always be interviewed in the presence of a properly qualified children's lawyer or a person with some other appropriate qualification.
Another fundamental set of humanitarian conditions should be met during the long determination period. Applicants should be allowed full freedom of association, contact with other people and have the freedom to travel within the country. They should be allowed to work or at least be given the opportunity to do something useful, such as training. There is conflict within Government on this issue. The Minister for Justice, Equality and Law Reform is totally opposed to the notion of allowing people who are waiting a decision on the determination of their status to work and many of these people are in this country for many months. In contrast, the Minister of State, Deputy O'Donnell, has stated publicly that those people should be allowed to work. On behalf of my party, I believe they should be allowed to work. They should be allowed to do something useful, if something useful can be found for them to do. There is nothing as degrading to the human spirit as to be deprived of the opportunity to do something useful, if one wishes it.
I stress that people who arrive here lacking of valid documents or who are suspected of being economic migrants rather than refugees or asylum seekers should not be treated as criminals, as the Minister once tried to do. We remember the banner headlines last year, particularly in the tabloid newspapers, when the Minister floated the idea that he was going to detain these people in army barracks. However, this idea did not come from the tabloid newspapers but from the Minister.
Detainees in these circumstances should be accommodated according to civilised standards, not herded into 19th century army buildings in the Curragh or elsewhere, which reek with damp  and where discomfort and lack of basic facilities are guaranteed for everyone. They should stay in properly equipped rooms, with access to daylight and fresh air and should be provided with appropriate meals. They should also have access to their luggage, which is not always granted. At all times they should be kept informed of the state of the proceedings.
Decisions taken by immigration officers can have crucial consequences for refugees and asylum seekers since these officials have first contact with them. The decisions they make must always be above board and transparent. There is evidence that applicants, admittedly sometimes because of communications difficulties, have not been afforded their legal rights and have been subjected to unjustified return, in breach of international and domestic law. Many asylum seekers are not able to clearly, formally or intelligently state their case to enter the country legally. Since they may have been persecuted by the authorities in their country of origin to whom they must apply for travel documentation, one can clearly see the extraordinary difficulties which they face. Therefore, it is absolutely essential that the officials who come into first contact with these people are fully aware of all the national and international legal instruments which apply. They must be properly trained and have adequate knowledge of all the elements which should be taken into account when dealing with such people.
It is regrettable that this country has built a reputation of being unwelcoming to non-nationals, although they may come from countries which it is easy for us to identify with culturally. Ireland sent more of its children to foreign shores than any other country in Europe. If 45 million Americans claim they are Irish or of Irish lineage, that is because of the huge flow of emigration to the United States in the last century and in this century, until recently. When I was a Deputy, in 1989 I visited New York and Washington, as part of a parliamentary delegation to lobby members of the House of Representatives and Senators to enact laws that would give green cards and work permits to the tens of thousands of young Irish emigrants who were forced to leave this country from the mid 1980s. This flow continued until at least the early 1990s. Many of them found themselves in positions where they were exploited, especially young girls. I come from a constituency, as does Senator Dan Kiely, where there was a huge flow of emigration to the United States, the United Kingdom and other places in those years.
The difficulty with the United States being a multicultural, multinational society is that if it makes a special case for one ethnic group, it must be seen to be even-handed and make it for others who are also trying to enter the country. We used the Irish-American lobby in Congress to ensure  that laws which were essentially discriminatory towards other races were enacted – the Morrison and Donnelly visas could be interpreted as being discriminatory towards people from Korea, China etc., who were not afforded the same rights of entry. Yet we are so mean about the entry of people who would like to stay or work here.
For example, during the Kosovo refugee crisis, the Minister adopted the meanest possible attitude to the number of people who were allowed to come here. Thankfully, the crisis has abated and most of the refugees are in a position to return home now or soon. However, if it was not for the public statements made by the Minister of State, Deputy O'Donnell, on our lack of generosity in receiving people, a decision would not have been made on the paltry number which the Minister eventually allowed to enter the country.
We oppose this Bill. It is totally inappropriate and is not only being introduced because of the High Court case which found sections of the Aliens Act, 1935, to be repugnant to the Constitution in relation to the Minister's power to deport people. The Minister is taking the opportunity to give greater powers to the courts to make the shores of this country an unwelcome place for non-nationals who wish to enter.
Mr. D. Kiely: I welcome the Minister of State to the House and I am delighted at the introduction of this Bill. I am sorry the Minister of Justice, Equality and Law Reform, Deputy O'Donoghue, is not here but he is in a more important place handling business which will be central to the future of this country for centuries to come. I compliment him, the Taoiseach and others involved in the serious negotiations taking place.
Mr. D. Kiely: He said this country does not welcome any asylum seekers or refugees and we treat them like animals, put them in damp accommodation and do not feed them or look after them. For a while, I thought I was living in a completely different country.
Mr. D. Kiely: County Kerry was the first county to accept them, and we did so with open arms. We would do the same again for any country. It is ridiculous to say we do not want these problems. Every health board is ensuring there is proper accommodation for asylum seekers and refugees. I do not know what newspapers Senator Connor has been reading or from where he is getting his ideas. He said the Minister is out of touch. The Minister has increased staffing in his Department from about six people to 122 in the past two years. It is ridiculous to say nothing is being done and the problem is not being addressed.
I have been involved in the issue of immigration longer than anyone in this House. I was chairman of the Fianna Fáil immigration committee for many years and I did more than anyone for the illegal immigrants in the United States of whom Senator Connor spoke. I was an immigrant for 14 years and had first hand knowledge of the problem. I knew what I was doing when I set up the first immigration committee in the United States, comprising the immigration reform movement, Catholic charities and the Government. I was responsible for obtaining the first funding to form a lobby in Washington DC. It is nonsense to say we have turned our backs on those looking for political asylum. It is unfair of the Senator, in the Minister's absence, to say he is not doing anything. Everything is being put in place to facilitate these people and much more will be done. This legislation is part of that process and further legislation will be introduced before the end of the year. There was no asylum or refugee problem in this country until recently, because it was always the other way around, with Irish people looking for work in other countries.
Mr. D. Kiely: However, they went there legally. When I first emigrated to the United States I had to be properly claimed by an aunt, uncle or cousin. A bond had to be lodged to ensure they would look after me until I found work and accommodation. I received no hand-outs. I had to find and pay for an apartment, get a job and pay my way. That is how things were done and should be done.
Mr. Norris: Why not give them the right to work? The Senator has put his finger on a very important point. Well done to him. He is supporting, on behalf of the Government, the right to work for asylum seekers.
Mr. D. Kiely: The position has now reversed in this country, owing to the Government's performance in creating a booming economy. The  Government can take all the credit for the economic growth of this country.
Mr. D. Kiely: Many people now regard us as a soft touch and think they will be housed if they come here. The laws must be tightened up and put in a proper perspective. However, it is totally untrue to say that these people are unwelcome. It is very unfair of the Opposition to suggest that, to say what it did about accommodation and how these people are being treated in this country. It is unfair of the Opposition to put that spin on it. They are total lies—
A problem has arisen as a result of the recent High Court case. The Minister has no power to deport people. These matters must be put in a proper perspective. We do not want a large criminal element to enter the country. People must be properly assessed and monitored. I am delighted this issue is being addressed.
The Minister introduced this Bill in the Dáil on 3 February 1999. It is an interim measure, intended to maintain the validity of immigration controls and restore the power to deport. That is very important. The Bill also provides for the practices and procedures regarding the power of the Minister to make deportation orders. These include the giving of notices to potential deportees, indicating the reason on which a decision is based and the right to make representations.
The Minister has tabled a very important, comprehensive and detailed Committee Stage amendment No. 75a, on which I will speak later, for the purpose of making the Refugee Act, 1996, workable. The structure and procedures provided for in the Refugee Act are incapable of coping with the level asylum applications now being received by the State.
There are many new features in the Bill. I welcome the way in which the Minister is going about his business, in setting up a new board comprising six men and six women, establishing a right to appeal and so on. That is very important.
I commend what the Minister said about staffing. When he took office two years ago, 14 people – I made the mistake of saying six earlier – were working in the office and there are now 122 people there. The Minister has introduced extra staffing resources, a proper refugee application centre, improved administration procedures and a refugees' legal service. Those are important parts of the structure that must be put in place. I  welcome what the Minister is doing in that regard and the swift manner in which he has handled this important issue.
I welcome the Bill and I compliment the Minister on the way he has behaved in regard to this and the other problems in the Department of Justice, Equality and Law Reform. It must be put on the record that Deputy O'Donoghue is the best Minister for Justice, Equality and Law Reform ever. He has introduced more legislation to this House in the past two years than any other Minister has during my time as a Senator.
Mr. Norris: Although I sit on this side of the House, I am not a member of the Opposition; I am an Independent Member and I take an independent view of this Bill. Certain aspects of it are to be welcomed but other aspects worry me.
I am glad to hear Senator Dan Kiely commit himself to the right of asylum seekers to get employment. He has said that quite clearly on the record of the House and it is a welcome development. There is no argument about this. One cannot argue that asylum seekers are not working and earning their stay in the country and, at the same time, specifically and clearly deny them the right to work. We all know that is outrageous.
I have a general welcome for the ideas behind the Bill, particularly the introduction of the refugee advisory board and the refugee appeals tribunal. However, the Bill can be improved during its passage through the House. Certain parts of it worry me.
I received a briefing on this matter from Amnesty International, which has been concerned about this issue for a very long period. It is significant that it gives a guarded welcome to the Bill, within certain parameters. It headed its briefing material with a paragraph from its report, Refugees: Human Rights Have No Borders:
In each state the body responsible for deciding asylum claims must be independent and specialised, with the sole and exclusive responsibility for dealing with such claims. The decision makers must have expertise in international human rights and refugee law. Their status and tenure should encourage the strongest possible guarantees of their competence, impartiality and independence.
I am worried that the Bill is phrased in such a way that members of the board, that is, those who will be administering the Bill, may not always have the highest competence and the best background – they may have, but it is not required under the legislation, as I read it.
It is important that the asylum process is placed, for the first time, on a statutory basis. The implementation in full of the Refugee Act, 1996, is important. However, there is a problem with the way in which this is being done. Asylum and immigration are two quite distinct legal regimes.  It is, therefore, inappropriate to introduce amendments to the Refugee Act, 1996, via the Immigration Bill, because they are separate and distinct legal entities.
All proposals in this legislation should be clearly and specifically human rights proofed, so to speak, to ensure they are in compliance with international standards. Throughout the Bill, there is a disconcerting and worrying failure to refer to human rights in the proposed amendments. Those with responsibility for interpreting the definition of “refugee” will need to have a knowledge and awareness of modern developments in human rights law. As a general principle, all those in positions of authority within the refugee protection process must have knowledge and experience of refugee and human rights law and practice. Refugee protection requires specific legal expertise and it cannot be assumed that those who merely have an interest in refugee law will necessarily have the expertise required to administer this legislation.
The refugee advisory board is welcome. It could, for example, carry out regular series of human rights audits in the asylum process, as well as assessments of the impact of the proposed changes in the new legislation. However, there is a clear failure to give specific and substantial powers to the advisory board to monitor and investigate the effectiveness of the process. The absence of those appropriate powers and a direction to monitor is worrying.
The composition of the board will be crucial in assuring that it is effective. There are many difficulties. The first report will not appear until 2003. Reporting every two years on a situation which has been developing rapidly is inadequate. The legislation is weighted toward the Government side. The question of interest in or knowledge of asylum should be amended so that it reads “interest in and knowledge of asylum”. It is impossible to have one without the other. I propose that it should produce the first report after one year. There should be a specific obligation to involve the human rights community, including refugees and asylum seekers, on the basis that those affected by the legislation will have a direct and clear interest in its operation and would have first hand experience. They could contribute to the proper working of the legislation. Appointees must have a knowledge of refugee, asylum and human rights law and there should be substantially increased powers for the commissioner.
On the refugee appeals tribunal, every asylum seeker requires an independent assessment of the original decision made on his or her claim. This person responsible must, in addition to the formal qualifications identified in the amendments, have expertise in and experience of refugee, asylum and human rights law. They should undergo periodic training to guarantee they are aware of new trends or developments. It is essential that the tribunal is composed of individuals with the requi site degree of expertise. We should add to that the phrase “and knowledge and experience of refugee, asylum and human rights law”.
On the refugee applications commissioner, it is essential that we have as commissioner someone who has a clear and proven commitment to refugee protection. That person should have substantial knowledge and expertise in international refugee and human rights law. Is there a reason such requirements apply to the advisory board but not to the commissioner? It may be an oversight but, if so, it can rectified at this stage of the debate.
The European Union minimum guarantee for asylum procedures states that asylum applications will be examined by an authority fully qualified in the field of asylum and refugee matters. As the Bill stands this is not necessarily the case, although it is not precluded by the legislation.
The problems in this section are that there is no provision that the person should have a substantial and proven knowledge of refugee and human rights law; no provision that the person have experience of asylum law and practice; no provision for the commissioner and staff to be fully qualified and display essential expertise in refugee and asylum law. There is a failure to refer to consultation with non-Government experts and no reference to documentation centres or information on countries of origin.
Further amendments are required. We would suggest the inclusion of provisions that the person shall have knowledge and experience of refugee, asylum and human rights law and practice; that the functions of the commissioner shall be to ensure that the refugee protection process operates fairly and effectively; that the commissioner may from time to time issue directives dealing with the performance of functions and directives and such directives shall include standards of best practice, interpretative guidance, procedures and standards of work, guidelines for dealing with refugee women and children and other vulnerable groups, guidelines for credibility assessments and that the commissioner shall ensure the fair and effective operation of the process with reference to international standards and best practice.
In one of those subsections, I mentioned directives for dealing with women and children and other vulnerable groups. This was teased out at a committee. Women felt there were special needs. I raised the question of those coming in under the sexual orientation clause and they certainly need special awareness. I can provide the Minister with instances known to me where people who sought to operate the sexual orientation clause were not treated in an appropriate way. I am not suggesting that this is a deliberately discriminatory practice. It is a lack of imagination, sensitivity and professional guidance skills.
Interpretation and translation are vital. How can someone explain themselves if they do not  have skills in the language in which they are being interrogated? We raised this when the original Bill was presented. I remember it clearly. Nevertheless, the Government is still using the phrase “where possible”. What happens when it is not possible to have a translator? How are the answers interpreted? It is vital that this clause be deleted from the provisions of the legislation.
Far too much depends on assurances about practice which lack the necessary legal guarantees. The Minister must be aware that vulnerable groups rely on legality and the rule of law to protect them against arbitrariness. We had a question in the House recently which illustrates the arbitrariness with which some officials apply to immigration legislation already.
The detention of asylum seekers should be a last resort which should be avoided where possible. There should be a presumption against detention for asylum seekers. Amnesty International stated clearly that it believes the current provisions would not withstand a proper human rights audit. There should be specific statutory provisions for unaccompanied minors.
While the Bill is welcome, there are areas where it needs to be substantially amended. The Irish Missionary Union has submitted that there should be a representative of the UNHCR on the board and ten members of civil society representing human rights lawyers, the Irish Law Society, the refugee community, the Red Cross, NGO refugee providers and so on.
I have some questions about the Bill. In section 2 it states that every order made before the passing of the Act under section 5 of the Act of 1935, other that the orders or provisions of orders specified in the Schedule to the Act, shall have statutory effect as if it were an Act of the Oireachtas. That may be a standard phrase but it worries me that something should have powers “as if” it were an Act of the Oireachtas. The Oireachtas rightly guards its powers jealously. This may not have any sinister connotations but it should be clarified.
Following that, subsection (2) states that if subsection (1) would, but for this subsection, conflict with the constitutional rights of any person, the operation of that subsection shall be subject to such limitations as is necessary to ensure that it does not so conflict but shall be otherwise of full force and effect. This is a grey area. The Bill is saying that we might be walking over people's constitutional rights but, if we are, we are seeking to amend it in advance. This rings a warning bell in my mind.
Section 3 deals with deportation orders. In paragraph (g) there is a reference to a person to whom leave to land in the State has been refused. By whom? An immigration officer? On Wednesday, I raised the case of a person who was arbitrarily denied landing rights in this State. We  need to be clear about who is doing this. It is a serious power to have.
Section 3(4) details the reasons the Minister can employ in determining whether to make a deportation order. He shall have regard to a whole series of questions and criteria which are mostly admirable – age is included – but wide powers are granted by the section. If I take this with the rest of the Bill, the Minister would have the power to override popular sentiment and perhaps the view of the courts and admit someone like General Pinochet. This is a power on which I should like further information.
Section 4 states that the Minister may, if he or she considers it in the interest of national security or public policy, exclude any non-national. Does the Minister have to give a reason for making such a decision? The Minister should have to explain that this person has to be excluded since he or she is a danger because . . . . We should seek reasons.
Section 5 states that if a member of the Garda Síochána, with reasonable cause, suspects that somebody has failed to comply with any provision of the order, he or she may arrest him or her without warrant and detain him or her in a prescribed place. Again, this is a matter which really needs monitoring and is why we need the monitoring powers. In Belgium, for example, people have died in such circumstances. I do not think we want deaths in custody.
The section further states that if and for so long as the immigration officer or, as the case may be, the member of the Garda Síochána concerned has reasonable grounds for believing that the person is not under age, they can do certain things. Again, this gives very wide powers under a vague heading.
I wish to raise two other issues. Section 11 states that the Minister may remove from office any person who has committed stated misbehaviour. I wonder about the type of stated misbehaviour because presumably what one is thinking of is something criminal, such as fraud or something like that. Would it not be better to have “is subject to criminal proceedings”?
The section also states that a person should be informed that they are entitled to consult a solicitor. They are actually entitled to free legal aid and we should inform them of that. It is not an abstract provision, that one can consult a solicitor if one can pay for it. They are entitled to free legal aid.
All these interviews should be videoed and I would emphasise that point. It is very important because it also protects the immigration officer. I raised this issue during the week where there was a dispute between a person interviewed and the immigration officers conducting the interview. The Minister stood behind his own troops – that is natural. I took the side of the person who was being interviewed but there was no video  recording of it. We are really left with a position where it is a toss up as to who one believes.
The Bill states that an authorised officer or an immigration officer may, for the purposes of this Act, take or cause to be taken the fingerprints of an applicant above the age of 14 years in certain specified circumstances. Those circumstances should be specified clearly as this is a very frightening procedure for people who have emerged from a dictatorship, for example. If they land here seeking asylum and the first thing that happens is that they are fingerprinted it would be very distressing. It should not be automatic and should be done only in circumstances in which it is really required. It must not be allowed to become routine. We cannot get into a position where people who arrive are immediately subjected to a unrecorded interview during which they may not have access to an interpreter and are immediately fingerprinted. They may then be arrested if they have false documents. Obviously such people may have false documents if they are genuinely fleeing. A very nasty possible scenario is building up. These are all matters of considerable concern.
Unfortunately, I may not be able to press my amendments but I will table some and will rely on colleagues to support them. I give a guarded welcome to the Bill. It is an important advance but there is much wrong with it. There is much which can, with goodwill, be improved in this legislation as it goes through the House if the Government side is prepared to be flexible and to listen to the voices of those agencies which have traditionally involved themselves in this area and the voices of those who have had experience in this country.
Mr. Costello: Senator Norris gave a guarded welcome to the Bill but I am afraid I will not be as generous because I am very opposed to it. I am opposed to it because of its basic ethos. It is draconian legislation and is totally against non-nationals. There is an air of suspicion and penalisation about every aspect of the Bill and its entire tenor is unacceptable. Each section from section 2, which strikes down the Aliens Act, through section 3 on deportation orders, section 4 on exclusion orders, section 5 on arrest, detention and removal of non-nationals, section 6 on the service of notice, section 7 on regulations, section 8 on obstruction, section 9 on penalties and section 10 on the increase of certain penalties under the 1935 Act, to section 11, the amendment of the Refugee Act, 1996, are anti non-nationals.
With a Bill of this tenor, I am afraid we are not too big a step away from racism. I am very disappointed that the Department and the Minister for Justice, Equality and Law Reform should come forward with this inadequate measure with regard to what we would regard as fundamental human rights. We should be ashamed of our selves given the millions of Irish people who have gone to the far ends of the earth and who were non-nationals and illegal aliens in many of the countries to which they went. So much for our traditions. Many of our songs reflect that sense of persecution, alienation and of being unwanted when many from this nation fled persecution and hunger at home. It is only in the past decade that we have had economic refugees and asylum seekers. Many will remember the influence used, the representations made and the lobbying which took place in the US. Senator Dan Kiely will recall the good work he did for Irish nationals in New York and throughout the United States. Members will remember the Morrison visas and the lobbying of the House of Representatives and the US President to gain acceptance of Irish illegal immigrants.
As we approach the millennium, we have come up with legislation which effectively enshrines hostility towards non-nationals coming from other jurisdictions for whatever reason. We will put them through hoops and place as many hurdles as possible before them. We will make it as difficult as possible for them to get refugee status. This is not an Ireland of the welcomes. The Minister and the Department have reserved for themselves an almost total right and responsibility to make decisions on who will and will not be allowed to remain in this country.
The preamble to the Bill refers to making provision in relation to the control of non-nationals and to amend the Aliens Act. Can we not dilute the words “control of non-nationals” and say the “regulation of non-nationals”? This Bill is a control mechanism and does not reflect a democratic jurisdiction. We should be ashamed of the manner in which we have approached this issue. I would have thought the Minister would have had plenty of time since the Refugee Act was passed in 1996 to get it right and to develop proper procedures and principles to deal with applications and appeals.
I am disappointed that the Bill is being forced through in the last two weeks of this session. The guillotine was imposed in the Dáil yesterday and 75 amendments had to be guillotined because the Minister was not prepared to tease out or amend the legislation in a fundamental way. It is no way to deal with such a fundamental matter. I hope the Leader of the House, as he indicated this morning, will not impose the guillotine next week when we table amendments to seek to have this fundamentally flawed legislation amended.
In 1996 when in Opposition the Minister said that Ireland has remained in the middle ages with regard to the granting of asylum and refugee status to people exiled from their countries of origin out of fear of persecution or discrimination of one form or another.
We must also face the fact that the smug idea  that the Irish are incapable of racist bias has been shored up by hugely prohibitive red tape in the process of applications for refugee status here. Persons displaced from their countries of origin have often become subjects of an ever more obstructive and debilitating syndrome while awaiting in a haze of indecision as the powers that be decide whether or not to grant refugee status.
These sound like the words of a very humane gentleman who would make an excellent Minister for Justice and who would bring all his concerns and humanity to dealing with a complex social and human matter. Unfortunately, the opposite is true. The Minister has already introduced illegal trafficking legislation which has the same tenor of control as this Bill. In it he shows his hostility and fear of refugees or asylum seekers and limits the number of refugees entering the country as much as possible.
I find the tenor of the approach unacceptable. The Bill arose because the Minister had no choice as he was working under the Aliens Act, 1935, which was in defiance of the Refugee Act which has not been implemented. The Aliens Act allowed the Minister and the Department of Justice, Equality and Law Reform to be judge and jury. The Department processed applications, spelled out the orders and heard the appeals. Was this not a wonderful way to do business?
Mr. Costello: We introduced the Refugee Act, 1996. Why was this not implemented? The current Government has been in office for two years. We would welcome an amendment to the Refugee Act if this was done in the right way and not in the negative and hostile way outlined in the Bill before us.
Under the Aliens Act people entering the country were put back on planes by ministerial order and never got a chance to submit an application or go near the human rights commissioner. In the old days there was no appeals process. Not very long ago I remember dealing with an asylum seeker from China who had been in Tiananmen Square and who was going to join his sister in London. He thought there was no water between Ireland and Britain and arrived in Dublin. He was very quickly arrested and kept in a cell in Fitzgibbon Street Garda station, one of two cells  which are specifically for the detention of illegal aliens. He was kept there for some time and was released following the work of his solicitor. He spent over six months in Mountjoy Jail and was then deported. That was the sad result of what happened to a person fleeing persecution. We all know what happened in Tiananmen Square. We do not want to return to those days when there were no proper application or appeal procedures.
The amendments put forward by the Minister are a fudge, ostensibly indicating that he is accepting the basic principles while in fact responsibility in relation to the deportation of non-nationals is being reserved by the Minister and the Department without recourse to any proper investigation. The Minister can decide what constitutes the common good and what is conducive to it. On the basis of the Minister looking into his heart he can decide that the presence of a non-national may not be conducive to the common good. The Minister can be the sole arbiter and deport such a person. How can such legislation be acceptable? I believe this legislation will be struck down unless the Minister and the Department are prepared to accept amendments. Leave to land can also be refused by the Minister.
We also have a provision covering immigration officials or the Garda who believe a deportation order has been served. Not so long ago we found there was considerable confusion over a deportation order being served when a garda believed one existed but in fact there was none, with the result that somebody was about to be put on a plane. These are powers which can be abused and which should be severely curtailed and subjected to monitoring. There must be in-built protection, otherwise there will be trouble with the legislation. The fact that everybody is entitled to legal advice and the protection of the law in putting and appealing their case should be made very clear, but is not included in the Bill.
I understand that some time ago the Minister declared that current procedures for dealing with applications were accepted by UNHCR as a model for other countries. I do not think anything could be further from the truth and I think the Minister was misleading in saying so. I see the officials are shaking their heads, but the media reported that the Minister had put forward a model and that UNHCR was happy with it. I do not know if the officials are signalling that Irish procedures were never held up as a model or that the Minister never said they were a model. I would like clarification on the matter. I certainly do not see the current procedures as a model for any country.
We are bound by the basic, fundamental conventions, namely, the UN International Convention on Civil and Political Rights and the EU Convention on Human Rights. I do not believe we are acknowledging or adhering to these conventions and the responsibilities they contain. We  are obliged to abide by them and I would be very interested to find out whether an examination has been carried out to see if we are in accord with the basic human and civil rights outlined in them.
The matter boils down to what our response should be. Should our response be positive or negative? The Bill is all about a negative response. Why can we not have a positive response? Does our history not teach us to have a positive response? Is this not what all our tradition is about? Does the experience of the Irish diaspora not tell us we should have a positive response? Does pure pragmatic economics not require us to look more favourably at the situation given the shortage of labour we are experiencing?
I wish to make two final points. Firstly, those waiting to have their application processed and their children should be entitled to primary, secondary and third level education. This is not happening at present. While access to primary and secondary education is allowed, people are being denied access to third level education. My second point concerns the right to work. Surely we should avoid the situation whereby a national myth can arise which says that asylum seekers are spongers, are here “on the make”, are getting everything from the State and are giving nothing back. Many asylum seekers are very well qualified, have tremendous skills and have a tremendous amount to give the country and economy. It is only right, proper, fair and humane that they are given the opportunity to work and to support themselves and their families while they are awaiting processing of their applications.
Mr. Dardis: I welcome the Minister of State to the House. I reject Senator Costello's suggestion that the Government, or any Government in the history of the State, would be racist or anti non-national. I also reject the proposition that this legislation is of that nature; evidently it is not. Given the consultations with the United Nations High Commissioner for Refugees, the NGOs and others, the Bill is measured and balanced and it is a positive response to particular circumstances. To suggest otherwise is wrong.
It is imperative that legislation of this nature should be introduced as a result of the Laurentiu case. There is no alternative. Does the Senator suggest that the borders should be open to criminals, terrorists and people on the run from democratic jurisdictions elsewhere? If the legislation is not passed, that will be the consequence.
 I do not think any Member of the Oireachtas would suggest there is no need for regulation. There must be regulation. There may be a debate as to the nature and strength of the regulation, and where the balance should lie, but that should take place on Committee Stage. I do not think any democratic party would say that a democratic State should not be in a position to regulate the entry of people into the State or to protect itself from people who wish to use it as a refuge, not from persecution or threat to themselves, but from prosecution for crime. If we do not regulate the entry of people into the State, that will be the consequence.
I will discuss later the related issue of the right to work. I believe that refugees or asylum seekers should have a right to work, particularly in the present economic circumstances. Even if those circumstances were not such, they should have a right to work from a human rights' perspective. However, this issue is not within the scope of the Bill.
The Senator is correct about the Irish experience. Of all countries we should understand what it is like to have to leave home as a result of economic necessity, political persecution or famine to seek a start in another land. This is a central part of the Irish experience. As a result, more than most, we should understand what is at stake and try to ensure that people are protected. The Minister of State put it accurately in his speech when he said that we should identify and recognise those who are in need of the protection of the State, but there also must be a means of removing from the State those who are identified by the system as not being so in need. This is an accurate and precise summary of what is required in the legislation and I believe the legislation fulfils that test.
It is not correct to say that the UNHCR, Trócaire or the Irish Commission for Justice and Peace did not have an input into the legislation. The Bill was amended significantly following its publication and prior to our receiving it. These amendments are to be welcomed as they improve the Bill. It is grossly excessive to represent the Bill as being racist and anti non-national. That suggestion must be rejected because no Government would introduce legislation of that nature.
A refugee appeals tribunal will be established to consider and decide on appeals. Therefore. there will be an appeals system. The legislation proposes that the tribunal shall be independent in the performance of its functions. This is a significant test of the balance and humaneness of the legislation. This country subscribes to international conventions on human rights and to its other international treaty obligations. Our record in respect of highlighting persecution and infringements of human rights in other parts of the world has been good. We have had debates on East Timor and Sierra Leone among others.  Our concern is evident. However, I do not claim that such concern is the custody of any one party, it transcends party divisions.
Matters were handled wrongly in the past. Decisions were made subsequent to the Laurentiu case over which no one could stand. I refer to the Aliens Act, 1935. However, the Laurentiu case struck down the power of the Minister to make secondary legislation governing deportation orders because this was inconsistent with the 1937 Constitution. Therefore, a constitutional imperative is imposed on us and if we leave a vacuum it will be filled by people whom no democratic state would wish to have cross its borders. There must be a provision whereby people of this nature can be deported. We must be clear about the difference between asylum seekers, refugees and people of that nature. They are not the same and it is wrong to lump them into one group. As democratic politicians, we have a responsibility to protect the State in which we live and the Government is to be commended for its determination to do so.
With regard to the right to work, I have a very clear view which I have stated in the House as acting Leader in the absence of Senator Cassidy. Asylum seekers or refugees should be able to work in this country. From the point of view of their personal dignity, even from the selfish point of view of the State, it is desirable that people should not have to depend on the support of the State when they are willing to secure employment and when employment is freely available. It seems extraordinary that fruit growers in County Wexford wish to bring in people from the former Soviet Union to pick the soft fruit crop and that the State, through FÁS, is going to Cologne to encourage workers to come here, while people who are well qualified to work in the country are not allowed to do so. This matter needs to be resolved. However, the Minister for Justice, Equality and Law Reform does not have the legislative authority in this matter, although he would have an input. I expect the Tánaiste and Minister for Enterprise, Trade and Employment will bring forward legislation to regulate this matter.
Those of us who met a group outside the Dáil recently from the Pilgrim House community in Wexford would have to be impressed by their sincerity, the level of their qualifications, their absolute desire not to rely on the State for their livelihood, their desire to participate fully in the economic life of this country and to take the consequences of that participation and the inherent insecurity of taking up employment. They deserve that break.
However that is not the issue in this Bill. There is urgency about passing this legislation as the Government needs to fill the gap left by the court decision. The State currently has no means to remove non-nationals, irrespective of their  illegality or the desirability of their presence here. The State must have a right to control the entry, stay and removal of non-nationals. That is recognised by the courts. The Bill contains a provision to safeguard the aliens orders made under the Aliens Act, 1935, against the challenge on this basis. It is a stop gap measure pending the introduction of comprehensive legislation to replace the 1935 Act and the Minister has said that on several occasions.
For all these reasons the legislation is required, balanced and reasonable. I would be prepared to vote against the Bill if I felt it was a basic infringement of human or other rights because I regard them as a central part of the liberal politics to which I subscribe. However, having examined the Bill and heard the Minister's speech, I believe it fulfils the test and on that basis, I am prepared to support it.
The debate has covered a wide range, touching on many facets of the questions of the immigration and residence of non-nationals in the State, and also addressing the issues of asylum and refugees. While the debate has perhaps strayed beyond the strict ambit of the Bill, it was proper to review not only the proposals in the Bil, but also the policy and legislative context in which they have evolved and in which, once enacted, they will operate.
I have taken note of all the points raised by Senators and will endeavour to respond to some of the more significant. Senator Connor made a personal, intemperate and unfounded attack on the politics and motivation of the Minister, Deputy O'Donoghue which was disgraceful and displayed his ignorance of the content of the Bill. He spoke of Ireland flouting international obligations without any regard to the procedures which have been put in place by the Minister to help those in need of the State's protection, procedures agreed with the UNHCR.
Mr. D. Wallace: These procedures include interpreter facilities at every stage when they are needed and an independent review mechanism for those rejected at first instance. Clearly, the Senator has neither read the Bill nor listened to my opening comments.
Simply stated, my policy is to ensure that  every non-national who is, genuinely, in need of the protection of this State is identified and recognised as such as soon as possible after arrival here, so that they can immediately start the process of integration into Irish society and take up the rights to which they are entitled under the Convention.
Mr. D. Wallace: That represents the policy of this Government and should also be the basis for the policy of every party in this House. It is also the policy of the Minister's Department. I utterly repudiate the unwarranted slur made by some Senators on the integrity and motives of the staff of the Department dealing with the difficult and sometimes harrowing task of eliciting the personal stories of asylum seekers. It cannot be tolerated that the rights of those genuinely in need of the protection of this State should be hindered in any way—
Mr. D. Wallace: It cannot be tolerated that the rights of those genuinely in need of the protection of this State should be hindered in any way by volumes of speculative or ill-founded claims for asylum made on the basis of a perception that if the application is unsuccessful, the applicant will be allowed to stay anyway. The last Government, this Government and the United Nations High Commissioner for Refugees have spoken out against such spurious claims.
The difficulties facing the Minister and the Department of Justice have to be recognised. A clear, fair and efficient adjudication pro cedure, with all the necessary attendant safeguards, will by definition admit not only those whose application is well-founded but also let in on a temporary basis many whose applications will be eventually adjudicated not to be well-founded. The inevitable and necessary consequence, if the system is to work properly, is that such applicants will be sent out of Ireland to some other country, i.e. deported or expelled. The nettle has to be grasped that deportation of some applicants (assuming that there are adequate safeguards in the system) is an inescapable part of a fair and efficient process, and provides an essential protection for genuine cases.
This Bill ensures adequate safeguards in the system, not just for failed asylum seekers but for other non-nationals liable for deportation. It behoves us all to grasp the nettle that deportations will in some cases be necessary and that at present Ireland is without that “inescapable part of a fair and efficient process”. That is the reason we need this Bill to be passed soon.
Senators accused the Minister of being racist. That is disgraceful. Senators alluded to the need to avoid the dangers of racism and xenophobia, matters which also come within the Minister's area of responsibility. The Minister's record in this area since entering Government speaks for itself. He has followed on the initiatives developed within the Department during the European Year against Racism in 1997 by establishing, in July 1998, the national consultative committee on racism and inter-culturalism This partnership of Departments and agencies and non-governmental organisations has the job of promoting an integrated approach to dealing with racism. Its structure reflects the Minister's view that to deal successfully with problems of racism and xenophobia we must tackle them in a co-operative and community based way. It is no harm to restate the abhorrence shared on this side of the House for the evils of racism and the narrow mindedness of xenophobia.
There is particular concern that the utterances of some groups on immigration and asylum matters are, at the very least, unhelpful in both content and tone. Undoubtedly, the concept of Ireland as a country of net immigration, after such a long history of the opposite, represents a welcome challenge to Irish society, a challenge that we should be delighted to take on. However, naive, inflammatory or ill informed comments of the type we have seen from groups on all sides of the public debate, do nothing to create the climate of common sense needed for our society to be able to assimilate newcomers and at the same time respect the social and cultural diversity which they bring.
Letters in circulation, such as those commented on in recent newspaper reports, are wrong and dangerous, and it is right they should be criticised  as such. However, it is equally wrong and dangerous to criticise as racist things which patently are not. That only serves to undermine the credibility of the critic and make it less effective when used against something that merits it.
I agree with Senators who stressed the need for measures to integrate persons who are recognised as refugees or are allowed to remain in the State having been in the asylum process. The Minister has set up an interdepartmental committee to examine integration measures. We look forward to the results of this committee's work because of the importance of integration, which will be to the mutual benefit of refugees and society.
With regard to asylum seekers entering the labour market, it is a matter of public record that the Government is considering this issue at present. When it has considered all aspects, it will announce the decision in the normal way. As is usual in these circumstances, collective Cabinet responsibility will be observed whatever way the decision goes.
Senator Norris raised a question about the provisions of section 2. The Senator is correct in his assumption that this is a standard wording taken from previous precedents. It has been devised in consultation with the Attorney General who advises that this is the proper means of achieving the protection required while awaiting the Minister's new immigration and residence legislation which is being prepared.
Senator Costello is mistaken when he characterises this Bill as anti non-national and as trampling on the rights of non-nationals. Every country must have deportation procedures to protect society. At present, we have none. This Bill puts in place a deportation procedure which, for the first time in Irish law, gives a statutory basis for the respect of human rights of those who are liable to be deported.
Senator Costello quoted the Minister from a speech given when in Opposition. It suits the Senator to ignore the major steps the Minister took immediately on coming into office to correct the shambles left by the previous Government. The number of staff dealing with asylum claims has increased from 14 in 1997 to 122, new offices with a one-stop-shop for asylum seekers have been provided, legal aid has been provided by the Legal Aid Board for asylum seekers, new procedures with an independent review mechanism for asylum applications have been put in place and we are now implementing the Refugee Act.
Mr. D. Wallace: The procedures in operation at present have been arrived at in consultation with the UNHCR and include a robustly independent review mechanism. The procedures are operating in a spirit of co-operation with the UNHCR, which has regular formal and informal contact with officials running the process and free access to case files as it requires. The UNHCR is on record as saying that it provides a balanced administrative procedure pending the implementation of the Refugee Act.
A number of statements were made by various contributors to the debate which suggest that significant elements of my opening remarks were not fully appreciated. In view of that, it is worth repeating the essential points. The Minister was castigated for his supposed unwillingness to make the Refugee Act operational. This accusation flies in the face of the facts. In this Bill the Minister is making amendments to the Refugee Act which will provide sufficient statutory structures to allow for proper consideration within a reasonable timescale, both at first instance and on appeal, to 5,000 asylum applications a year instead of the 500 the Act would be hard pressed to handle.
Senator Costello knows it is not a question of administrative convenience or anti-refugee sentiment that has dictated the position with regard to the non-commencement of the Refugee Act. It is the impossibility for any one person as commissioner to consider fairly and in a reasonable time the 5,000 applications being made each year. It comes ill from a member of a party in the last Government to criticise me or this Government for failure to implement the Act when his Government failed to do so for the 13 months it was in office after the passing of the Act.
Mr. D. Wallace: Senators Norris and Costello referred to the powers of immigration officers relating to the entry of non-nationals. It may be of interest to them that in the context of the major immigration and residence legislation being developed at present, the Minister is examining what form of review mechanism might be included in the Bill to deal with decisions to refuse leave to land. Tá
| Kett, Tony.
Cosgrave, Liam T.
|Last Updated: 20/05/2011 17:17:11||Page of 9|