Thursday, 22 June 2000
Seanad Eireann Debate
Section 2(1) states: “A person who organises or knowingly facilitates the entry into the State of a person whom he or she knows or has reasonable cause to believe to be an illegal immigrant or a person who intends to seek asylum shall be guilty of an offence . . . ”. The case was made on Second Stage and in the debate in the other House that there are many instances where a person who is a carrier, say a truck driver, may unknowingly carry a passenger who intends to become an illegal immigrant, asylum seeker or seeks refugee status in the county they are entering, including this one.
Nobody should be held guilty for assisting somebody into the State for humanitarian reasons where there is considerable prime facie evidence that the person would quality for refugee status or asylum in this country. There is a moral obligation on any person to assist somebody into the State for genuine reasons, for example, a person may be in flight or subject to persecution in their country. I would take that view if I assisted somebody whose life was in danger in his own country and where I was involved in assisting him into this country to seek asylum.
It is shameful that this country should receive adverse mention in the report published recently by Amnesty International. It is the most respected NGO to monitor human rights practices throughout the world. In the 40 or so years it has reported it has never made an unfavourable mention of this country until now. It expresses its concern about various parts of the Immigration Act, including its failure to recognise the fundamental nature of the right to non-refoulement. It also expresses its concern about the failure in this Bill to make a distinction between professional traffickers and those assisting genuine asylum seekers.
I do not know if the Minister feels any shame about what the Amnesty International report says about this country. I raised the report with him yesterday on Second Stage and invited him to make a detailed response to it, but I am afraid he was very dismissive. I am very concerned about what Amnesty International has to say and for that reason I ask the Minister of State to accept the amendment. When a similar amend ment was put forward on Committee Stage in the Dáil we did not have the benefit of the Amnesty International report.
Dr. Henry: I support Senator Connor's amendment. There is a broad desire here to criminalise people who, for humanitarian or ethical reasons, may help those who enter this country illegally and who afterwards may be proved to be genuine asylum seekers. There is always concern about people in other countries who try to point that their state is not treating all of its citizens or those who enter it well. That could happen here. I have before me a report from Turkey, where an internationally renowned Turkish surgeon has been sentenced to live in censorship for five years after facing charges relating to press statements he made about the ill treatment and detention of human rights defenders. The sentence means that Professor Velie Lok, an orthopaedic surgeon and well known human rights advocate, cannot publicly criticise the Turkish authorities on the issue of torture for five years.
Reports from the World Medical Association state that doctors in Turkey are continually being harassed because they provide medical treatment to victims of state torture. I do not suggest there will be state torture here, or anything like that, but I cannot see where the Bill excludes people from being criminalised who give medical help to those who may be in urgent need of it. The Bill provides that people must act for gain, but suppose there is a payment? The person could then be criminalised. A broad sweep is being taken against those who may act for humanitarian or genuine ethical medical reasons. I am sure this is not intended.
Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): For reasons I will explain, I cannot accept these amendments. I understand the concerns expressed by Senators Connor, Henry and Norris and I accept the principles behind the amendments and what the Senators are trying to achieve, that is, to ensure that those who give assistance for humanitarian or other non-profit oriented purposes are excluded from the scope of the section. The Minister has already given recognition to this important principle in Section 2(2), which provides that the assistance only becomes criminal if it is given for gain. In this way he is ensuring that the activities of bona fide people, who give assistance to non-nationals to come here, are not included within the scope of the Bill.  Senators will see that this approach sets the focus of the Bill firmly on the profit making traffickers and ensures beyond doubt that non-profit making activity is excluded. I know that this House, given its reputation for upholding human rights, would not condone the activities of those who traffic in people, be they asylum seekers or others, and profit as a consequence of such exploitation.
Some confusion may exist about the effect of the trafficking provisions of this Bill. Accordingly, I want to make clear what these provisions will and will not do. They will criminalise the activities of traffickers, including traffickers in asylum seekers, provided such trafficking is done for gain. As the Minister, Deputy O'Donoghue, stated yesterday, the offence is not committed by those who act for humanitarian purposes or because of family links, etc., provided of course that they do not make a profit out of the assistance they have given. I stress that whether an individual gained from assistance given to an asylum seeker will ultimately be a matter for the courts to decide, taking account of all the circumstances of any particular case. Gain in the context of this section obviously means profit. For example, recoupment of legitimate costs such as the price paid for a boat ticket would not constitute a gain or a profit. This is an important aspect of this Bill which effectively ensures that the scope of the offence catches the profiteer and does not affect the bona fide activities of genuine people or genuine organisations. For the purpose of certainty the Minister has also provided in subsection 2(b) that the offence is not committed by a person working for a bona fide organisation which gives assistance to asylum seekers.
Senators Connor and Norris wish to insert the words “other than for humanitarian reasons” obviously to put beyond doubt the exclusion of assistance given for humanitarian reasons. However, subsection (2) already puts the matter beyond doubt by providing that, to come within the scope of the Bill, the assistance must have been given for gain. Assistance given for gain is given for that reason and a person who profits from trafficking activity should not be able to claim that the real purpose behind the assistance was a humanitarian purpose. The two concepts are incompatible – it is one purpose or the other purpose.
The amendment proposed by Senators Connor and Norris would probably render the section and therefore the entire trafficking provisions difficult, if not impossible, to operate because it adds an additional, unclear and unnecessary element of proof. It would mean that a trafficker who had charged some poor unfortunate person £1,000 for his or her services could claim that he or she was motivated by humanitarian considerations and it would be necessary to prove the absence of such intent. This would be particularly difficult as the term “humanitarian assistance” is open to a very broad interpretation and most certainly lacks the  certainty required for criminal law. I know that is not the intention of the Senators and therefore they would not want that to be the net result of the amendment. There is no need to insert such complications.
Subsection (2) says it all and it is the appropriate mechanism for ensuring that humanitarian assistance is not covered by the scope of this offence. It is a mechanism used in the trafficking legislation of many of our European partners. Both the Minister and I are satisfied that it is the right approach, having looked at it in detail in the examination of the amendments submitted.
I accept the principle behind the amendment proposed by Senator Henry. A doctor or other person who gives assistance to an asylum seeker to come to the State because the person is in need of medical assistance should not come within the scope of this Bill, and the Senator wants to be sure of that. Subsection (2) is the assurance that such assistance will not do so as I would expect that the assistance which the amendment seeks to cover is assistance which is given for no financial reward. The Senator would obviously prefer to see the exclusion on medical grounds spelt out in the section. However, not only is that unnecessary, it is also dangerous as it could leave open the possibility that a trafficker who put an injured person in a sealed container at Cherbourg could claim that he or she was assisting the person to get medical assistance in Ireland.
Mr. Connor: I thank the Minister of State for her comprehensive explanation, but nevertheless I remain dissatisfied. The Bill has come in for a great deal of criticism and specific criticism in this particular area in that it is not clear in the way it distinguishes between criminal traffickers and people who for genuinely humanitarian reasons wish to assist asylum seekers. To insert the words “other than for humanitarian reasons” in this section would not create any great problems regarding the burden of proof. For that reason, despite the Minister of States's comprehensive explanation, I remain unconvinced.
This amendment does something to err on the humanitarian side because a little too much of the Bill errs on the other side, and that has been eloquently stated in criticism about us which has been disseminated all over the world. It seems odd that the unfavourable mention to which I refer, which was made in the Amnesty International report published last week, singled out this particular legislation. It made the specific criticism of this Bill that it did not make that distinction. If we inserted this amendment in the Bill, it would help us recover some of the image we have lost.
Dr. Henry: I cannot say I am happy about this because if any money changed hands it could be said it was for gain, even if some medical supplies  were paid for. For instances, we might have somebody who was not in the same financial situation that I am in. I am not happy about it because it may criminalise people. The Minister of State's explanation is that this could result in people being put into trucks to be saved, but this is when people have given medical assistance which is not the same as sending them off somewhere to get medical assistance. I am not happy about it.
Miss M. Wallace: I want to clarify what section 4, in particular subsection (3), provides. Section 4 provides that where a person is convicted of an offence of trafficking the vehicle used may be the subject of a forfeiture order by the court. This order may be in addition to, or instead of, any penalty imposed by the court under section 2. Forfeiture is not mandatory and the question of forfeiture is a matter for the court to decide in the particular circumstances of the case before it.
Subsection (3) provides that where the convicted person is the captain, driver or other person in charge of the vehicle, forfeiture will not be possible unless the owner or, where the owner is a company, a director or manager of that company knew or could with reasonable diligence have discovered that the vehicle was being used for the purpose of the commission of the offence.
The main purpose of the provision is to ensure that operators take prudent measures against such activities and cannot just turn a blind eye to any illegal activity which might be going on. It does not create a need for the operator to foresee the unforeseeable or to do more than could be reasonably expected of him or her. The provisions specifically provide that if the exercise of due diligence could not have discovered the illegal activity, then the forfeiture provisions will not apply in these circumstances. On the other  hand if I were to accept this amendment, it would mean that an owner of a vehicle could turn a blind eye and effectively wash his or her hands of what might be going on.
I assume that the Senators are concerned that this “reasonable diligence” test might create strict liability or at least a high level of liability for the owners. This is not the case. There are two aspects to the provision.
First, it means by implication that the owner is expected to exercise reasonable diligence in the use of his or her vehicle. This means that he or she is expected to exercise the reasonable care that might be expected of a person in the position of the owner. This is a commonly accepted standard of care and is no more than what common sense would suggest should apply. Such reasonable care would have been taken if the owner established a proper system to guard against misuse of his property by traffickers and took reasonable steps to ensure that his or her business was operated in a responsible and bona fide manner. The second aspect of the provision is that if the trafficking is such that the exercise of reasonable vigilance could not have detected it, then the owner is not considered culpable and his or her vehicle cannot be forfeited.
There is a further safeguard for the owners of property in the section including the provisions of section 4(5) which provides that owners or other persons with an interest in the property must be given an opportunity by the court to show cause why a forfeiture order should not be made. This provision does not impose requirements on owners other than the requirements which common sense would say that the responsible owner should in any event put in place.
I am aware that, in other jurisdictions, additional requirements have been placed on owners through carrier liability legislation or through strict liability legislation in respect of stowaways. Such matters are not provided for in this Bill. The Minister is aware that there is a need to examine whether such provisions should be a feature of our law and he is having these matters examined in the context of the proposed Immigration Bill. Any proposals which he will bring forward will be made after appropriate consultation with carriers such as hauliers, shipping and airline companies.
I am also aware that the Irish Road Haulage Association has called for the introduction of a code of practice for its members. The association is to be congratulated on such a proactive and responsible approach to the problem. As the Minister has already said, the introduction of a package of measures concerning carrier responsibility for passengers brought to this country is under consideration. The Minister intends to consult with carriers, including the Irish Road Haulage Association, on his proposals in this respect.
Mr. Connor: I thank the Minister of State for her explanation. I am not overly enthusiastic about this amendment. I am aware, and I made this point about the Tokyo Convention as it applies to aircraft, that the commander of an aircraft has only to concern himself with safety and good order on his aircraft. I cannot speak about similar conventions covering shipping. According to the Tokyo Convention, it is not part of the duty of an airline pilot to interpret immigration law or anything of that nature.
I mentioned the unfortunate cases in European airports where three people died in transit. One flight was from Zurich Airport, another was from Frankfurt to Khartoum and the other I do not recall. Security and immigration officials obviously accompanied those people. There was also the case at Brussels of Semira Adamu, a national of Niger, who died at the airport. The pillow method was used in these cases, so these people were suffocated. The method was used because they resisted their expulsion and that resistance continued on the aircraft. They died accidentally but the methods and means used to enforce the expulsion orders and to restrain them were excessive to the extent that the three people died. We should be aware of that.
If we are legislating for carriers' liability, there should also be another liability to ensure that excessive force is not used by officers of any state if they find themselves taking an unfortunate person back to Iran, or something similar. Our national airline would not be able to complete such a journey. One would have to fly to London and then take an unfortunate Baha'i, for example, who is probably facing persecution in Iran, back to Tehran on a London to Tehran flight. I do not suggest that any person employed by the immigration service of the Government would engage in excessive force, and God forbid that it would ever happen.
However, as regards carrier liability legislation, the liability does not go to the extent of saying that carriers must co-operate with officers carrying out deportation orders which involve the carrier's aircraft or ship taking them to the required destination. Clear guidelines must also be included about the level of force which can be used. It should be borne in mind that, if an excessive or unusual level of force has to be anticipated, that carries implications for the safety of the flight or voyage.
Dr. Henry: I support Senator Connor's concerns about excessive force being used. We know that, in other EU countries, deaths have occurred when people have been put on planes as part of the deportation process. It is something well worth pointing out.
Miss M. Wallace: I assure Senators that the provision does not apply to airline pilots, as  referred to by Senator Connor, but to owners. It does not impose a requirement to know anything about immigration law. It simply provides that the owner is obliged to take reasonable care to ensure that his truck coming across from the Continent, for example, is safe, secure and locked.
I assure Senators Connor and Henry that the points they made will be recorded and assessed when we prepare the Immigration Bill. The Senators' concerns are more to do with that legislation and, if we proceed with legislation in the area of carrier liability, which we are not doing here but which is being examined in the context of the proposed Immigration Bill, their concerns will be taken into account.
The purpose of the amendment is to limit the suggestion that a refusal of asylum could only be challenged by judicial review. The argument is that an asylum seeker could, for example, already be charged with an offence for being in the State illegally, and he would not be in a position, if this section were agreed, to use as part of his defence the fact that he believed his deportation order to be illegal. The State would be in a position to say that he could only challenge the order by judicial review and not by way of defence in a criminal trial.
When the Minister replied to a similar amendment in the other House, he said other procedures existed which, if engaged in by litigants, would be cumbersome. However, this ignores the possibility of raising the invalidity of a deportation order by way of defence in a trial and affects the use of the invalidity of refusal of asylum to challenge the subsequent deportation order. The Minister also said that statute law can interfere with habeas corpus. As I am not a lawyer, I will have to take his advice on this. He suggested that this section is possibly unconstitutional.
Miss M. Wallace: If the question of the validity of a deportation order comes up as a critical matter in a criminal prosecution where, for instance, it might be an argument for the defence against a charge of breach of a requirement of the order under section 3(10) of the Immigration Act, 1999, the proper course is for the defendant to institute judicial review proceedings in the High Court under this section of the Bill and to seek the adjournment of the District Court criminal proceedings pending the outcome of the High Court proceedings. It would not be appropriate for the District Court in criminal proceedings to determine the validity of the deportation order. That is a matter within the jurisdiction of the High Court only. It would not make sense to have such a question determinable in two different courts.
The effect of the amendment would be wider than that. It would permit a free form procedure no matter what the nature of the step in the immigration or asylum process that was being questioned and would thus undo the streamlining effect of the procedural simplification proposed in the section.
Dr. Henry: Everything in this Bill seems to be for our benefit rather than being faithful to our international obligations. Asylum seekers would need to have a very good lawyer to go through all these hoops. I am disappointed the Minister will not accept this amendment.
I did not speak on amendment No. 4 but in a sense this amendment is related. This is probably the most fundamental problem with regard to the Bill. Section 5 deals with the right to a judicial review of a person seeking refugee status or asylum in this country. The Minister, for whatever reason – and I suspect the reason – has decided in the case of refugees to limit the period from three months to 14 days to prepare and present a case for judicial review. That is disgraceful.
We are signatories to various international conventions and instruments which bind us to treat everyone equally before the law. It has been well established in the constitutional test cases in the courts that non-citizens should have the same rights as citizens. Why should we discriminate against people we consider foreigners? These people wish to apply for asylum or refugee status which may, in turn, lead to naturalisation. For the benefit of the Minister, Article 16 of the UN Convention, 1951, states:
. . . a refugee shall have full access to the courts of law in the territory of all contracting states. A refugee shall enjoy in the contracting state in which he or she has initial residence the same treatment as a national in matters pertaining to access to the courts.
 That is a clear statement. I am open to correction but I understand we have incorporated most of the UN Convention, 1951, into domestic law as part of the Refugee Act. That makes it the domestic law of the land.
I always have in my possession a pocket version of the European Convention on Human Rights and feel the need to have it, Deputy O'Donoghue being the Minister for Justice, Equality and Law Reform. The Taoiseach has stated that this country, with only a few other member states, will ratify in domestic law next October the European Convention on Human Rights – a document which proceeds from the Council of Europe. This document is respected worldwide as a wonderful statement of basic human rights and any contracting state to it has a high standard on the observance of human rights.
A human rights commission has been established here and in the North and the British Government has also agreed to incorporate the European Convention on Human Rights in its statutes. I think it was the Minister of State who dealt with the human rights commission Bill in its final Stages in this House and she confirmed that this is the case.
Article 6 of the European Convention on Human Rights consists of a number of sections which deal with the right to a fair trial. With regard to a person seeking a fair trial in a contracting state, section 4 states that a person must have adequate time and facilities for the preparation of his or her defence. Article 16 of the UN Convention, 1951, and Article 6 which will be incorporated into our domestic law, will be in clear contravention of our own laws with regard to refugees and asylum seekers if this amendment is not accepted. The legislation will be unconstitutional because it has been well stated by the courts that non-nationals should have an equal right of hearing, irrespective of whether a person is the biggest rogue in the land or the most upstanding citizen. The courts, to their credit, have clearly reiterated that over the years. I am pleased our Constitution does not state that non-nationals do not have a right of access to our courts. The courts, including the Supreme Court, have since interpreted that non-nationals should have the same hearing as nationals.
This is a fundamental issue and I wonder about the reason behind it. The Minister said frivolous and vexatious cases are being brought before the courts and judicial reviews were not for such purposes. That is not the case because there is a filtering system within the courts. We had an example of this a few weeks ago when a lecturer in Limerick took a case against the appointment of former judge, Mr. Hugh O'Flaherty, to the European Investment Bank. First, he had to go through the procedure which showed he had an arguable case before the hearing for a judicial review could be heard. With that filtering system, the Minister cannot argue that frivolous and vexatious cases are being taken and that court time is being wasted and, in turn, the asylum and refugee  determination system operated by his Department is in knots.
I ask the Minister to respond to these matters in detail. I know she has a written brief. I read most of what she said in the Dáil and found it unconvincing. We must be extremely careful. We appear to be on a route which will result in our infringing conventions and international instruments to which we are party. We will be in violation of the Constitution and domestic law when these instruments are incorporated into law.
Mr. Quinn: I am impressed at Senator Connor's ability to explain why this will be bad law unless we do something about it. I know the Minister and Minister of State are anxious to introduce laws that will hold up in court. Senator Connor made the point that the Bill appears to be in contravention of Article 6 of the European Convention on Human Rights. We have not ratified that article yet but it is our intention to do so in the future. We are obliged to ratify it under the agreement.
It is not possible to support laws which treat non-nationals differently from nationals. The period in which a judicial review can be taken by non-nationals has been shortened from three months to 14 days. I argued during the Second Stage debate yesterday that one of the ways we could handle the immigrant situation was by making sure we made quick and precise decisions. I was not all that worried with the change to 14 days in the first instance. I then had to take another look at what has happened in the past year.
We have operated a policy of dispersal around the country of those seeking asylum. Many of them are located in isolated areas and practically all of them have no financial resources easily available to them. I believe we are being unjust and impractical in springing this change upon them. It is unequal to the constitutional rights they will have when we ratify the European Convention. I know the Minister of State wants to introduce good law – I want that too. I heard what the Minister had to say in the other House but I believe that we have an opportunity to make a change in this Bill. I urge the Minister to consider accepting this amendment.
Dr. Henry: I support what Senators Connor and Quinn have said about the dispersal of refugees throughout the country. They spend a few days in Dublin and are then sent to another location and often they are moved again. In those circumstances such people would have no time to become involved with free legal aid or a solicitor who will take their case. Surely we are, as Senator Connor said, grossly discriminating against non-nationals. I thought our current law provided a period of six months within which a judicial review could be sought. I would be very unhappy if the Minister of State could not accept this amendment.
Miss M. Wallace: I am not sure Senators fully understand what we are doing in practice as distinct from theory. An item in this morning's newspapers will, perhaps, help explain the position. A local resident took a case to court yesterday to prevent a concert being held at Punchestown Racecourse this weekend. There would have been no point telling that resident he had three months or six months within which to take his case because the concert is being held this weekend. The Minister outlined a similar scenario in the Dáil relating to a football match.
Senators appear to be suggesting that although a person is being deported we should allow him to remain for three months as he may like to seek a judicial review. The court needs to look at cases in a shorter timeframe. The purpose of the Government proposal is to provide a judicial review procedure which is tailored to the particular requirement of the matters at issue in the areas of immigration and asylum. An important aspect of the specific adaptation to those requirements is the incorporation of realistic time limits which are related to those applying to the decisions, orders and other steps listed at section 5(1)(a) to (n).
Senator Connor raised many questions. In circumstances where an order if unchallenged would be executed within 14 days, the law should nonetheless allow a period of three months within which a challenge can legitimately be brought. It does not make sense to say, “Let's wait for three months before we proceed because this individual may decide to take a case.” What Senators are asking the House to accept is that, notwithstanding that there are time limits of two and three weeks built into the legislation governing the various steps covered under section 5(1), the law should in effect say: “Don't mind those time limits at all, you have loads of time within which you can take a case to the High Court challenging the validity of the decision or order.” The logic of such a provision is that there should be a three month gap between each step in the asylum process in which the staff of the Department or the new staff of the Refugee Applications Commissioner and the Refugee Appeal Tribunal give the applicant the full entitlement of time to question the validity of the process so far in the High Court. Each step would produce a three month delay.
If we are to follow the logic of this amendment in another of the contexts covered by the amendment, any person refused leave to land in the State would nonetheless have to be allowed to remain for three months in case they wished to challenge the validity of the refusal. Each step in the deportation process would have to be followed by a long interval to give the potential deportee the opportunity to avail of the period provided by law for the taking of judicial review  proceedings. I am sure Senators will agree that is no way to operate. Acceptance of this amendment would result in an open door through the backdoor. We would, in effect, be saying, “Come on in. If you are refused leave of entry you can stay for three months to think about it.” The primary time requirement in the Rules of the Superior Courts is not three months but a requirement to act promptly. That is the first requirement set out in the Rules of Court in order 84, rule 21, paragraph 1. The three month limit or, as Senator Henry pointed out, six months in some cases—
Miss M. Wallace: Yes. In many cases, as I have explained in the football example and the Punchestown concert this weekend, it is more theoretical than real. It does not really matter if it is two or six months, it must be done this week. The requirement of promptness of action overrides in practice any time limits which the rules may set or which may be set in the Bill. If I, as a person involved in an administrative procedure with some organ of the State, am not happy with a step in the procedure and I am not happy that that step was carried out properly in accordance with the law or principle, the onus is on me to act promptly and before any subsequent step is taken on foot of that procedure with which I take issue. If not, the court would throw me out if I allowed time to go by and other steps were taken before I queried something that happened some time before.
The Government proposes to set a limit of 14 days for a judicial review in these types of cases to reflect the real world. The limit which the amendment seeks to insert is fine in general circumstances, which order 84 of the Rules of Court must cater for, but in immigration and asylum cases, to which section 5 is designed to apply, they are patently out of kilter with reality. There is no point in incorporating a theoretical, unreal or unworkable time limit into the section. To do so would only cause confusion because of the obvious conflict between that limit and those set in the various provisions listed already in subsection 1. The High Court also has a provision to extend that 14 day period if it feels it appropriate in an individual case.
Mr. Connor: I thank the Minister of State for her lengthy explanation. She has done a good job of attempting to convince us, but we cannot escape the reality, which is that the Minister wishes to limit the right of refugees and asylum seekers to seek a judicial review as against the right of other people. If a non-national is found guilty of an offence after going through all the procedures necessary and seeks a judicial review in relation to a matter which has nothing to do with his or her status in the State, he or she has  three months to act, but the Minister has singled out refugees and asylum seekers because he does not like them. Let us face it. He wants to make them unwelcome and uncomfortable in the country; that is what this measure amounts to. It is clear discrimination.
The argument was made that in planning law one is restricted to two months, but the three month rule proceeds from the courts themselves. It is an insult to the courts to say that the amount of time to be allowed for a judicial review in asylum cases is to be 14 days. That has to be in contravention of Article 6 of the European Convention of Human Rights, which guarantees that people have adequate access and time to prepare their defence.
Who is more vulnerable or needs more time than refugees who may not understand English? They may have no friends here and may not understand the Irish legal system; they may have difficulty getting an advocate or an interpreter. They need time more than any other person appearing before a court and we should give applicants for refugee and asylum status more time than is normal because of the particular circumstances that often apply in their cases regarding their lack of understanding of our language and culture.
They are often frightened of approaching the courts, but this is often the case with many ordinary citizens also. It is almost a horror to those who have had no experience of legal proceedings to have to go to court. What then does it mean to poor refugees or asylum seekers? If they are rejected by the courts and they seek a judicial review as a last resort, they need to have the wherewithal to put that together. It is not easy. Arguments have to be put together and presented to the court for that filtering system to ensure there is an arguable case before any hearing takes place. That is the procedure.
We are not convinced by the Minister of State's reasons for reducing this period from three months to 14 days. I am not blaming the Minister of State. This proceeds from the antipathy of the Minister for Justice, Equality and Law Reform towards asylum seekers and refugees, which has often been expressed here. It is not so much what he may say; it is often the nuances he uses or the look on his face. I have dealt with all the immigration—
Acting Chairman (Mr. Mooney): I advise the Senator that while I do not wish to interfere in the debate, when he strays into the area of personal remarks about any individual in his absence he is bordering—
Mr. Connor: The Minister is not so precious that he is above criticism. He is pretty good himself at giving it and if he were here he would be very robust in dealing with our arguments. He would go into areas quite extraneous to the matter under debate if he felt he needed to do so to defend himself. He is very good at that. I am absolutely convinced that this proceeds from the Minister's antipathy to asylum seekers and refugees.
Acting Chairman: The Senator's points are well made and, as I said, the Chair does not wish to intervene at all in the debate and is only here to oversee the proceedings, but robust debate is one thing and personal invective or references to anyone's personal traits should not have any place in a debating chamber.
Mr. Connor: I want it clearly on the record that there is no personal invective meant by me. I have been the subject of invective in the House. I was called a bigot and that was surely a personal reference to me.
Acting Chairman: That is not the point I am making. It is important to point out that the reference was to the body language and personal characteristics of an individual and not the merits or otherwise of the opinions held. I know Senator Connor did not wish for a moment to stray into that area, but it is important to have that on the record. I would be the first to rush to the barricades to defend the right of anyone to express any opinion in this House, conventional or otherwise, but that is not the type of language that is appropriate for this debate or in this House. Senator Connor and I are colleagues and friends.
Mr. Connor: It is very regrettable that Senator Maurice Hayes, a venerable Member, had to spring to his own defence in response to a rather unwarranted attack on what he said about the Minister yesterday on Second Stage.
Mr. J. Cregan: It is regrettable that we have had a personal attack on the Minister in his absence. Yesterday he made a detailed speech on Second Stage and listened to Opposition comments for hours before responding fully to every query that was raised. It is time to say stop, as the Minister is being accused of lacking sympathy for those entering the country and other matters. If we look at his record in this area – and it is only one area he deals with – we can see he has put huge resources into the processing of asylum applications.
We have to look at the Minister's responsibilities to the citizens. When a person has gone through the due process, made an application for asylum, had that application turned down, has perhaps appealed that decision and has had the appeal turned down, they have the benefit of a judicial review which they must carry out within 14 days. Those on the Opposition benches are saying they should have three months. Either we are serious about deporting people who have gone through the system and who cannot be accommodated as asylum seekers or we are not. The Minister is being told he should deport people and he has a responsibility—
Mr. J. Cregan: If the person in question has gone through the system and is found not to be a genuine asylum seeker, then the Minister is right to deport them – that is his responsibility. He would be failing in his duties if he did not do that. The Minister of State, Deputy Mary Wallace, has made the position in regard to the 14 day period very clear.
We have heard all sorts of points about people being sent to isolated areas but I do not know any isolated area. One can drive from one end of the country to the other in a day. A period of 14 days is ample time for a decision to be taken.
Dr. Henry: I know the Acting Chairman did not, but I was in the House when the Minister talked about a glut of refugees. Senator Ryan and I objected and said we did not believe that was wise language to use.
Dr. Henry: I certainly will, but I go back to the point that this legislation is a method of policing people so that they do not come here rather than assisting in trying to find out who is lawfully and rightly in need of asylum here. People have been dispersed around the country, they have language difficulties and have come from areas in which, perhaps, they have been subjected to barbaric treatment. A 14 day period is a very short time in which to allow people to make an appeal. That is why I support this amendment. Everyone else may feel they can get their wits together very quickly but the people I have met deserve a little longer.
Miss M. Wallace: At this stage a person will have gone through the appeals process and the details in regard to their reason for entering the country without formal authority to do so. They will have been given legal aid, interpretation facilities and housing and financial support while their case is going through. Having gone through everything, they will reach the deportation stage. Senators need to address the fact that everything possible will have been done for the individual along the way in terms of legal and other supports and now they are to be deported.
Senator John Cregan hit the nail on the head when he said that at this stage we have to decide whether we are serious about deportation. When people reach the deportation stage, we cannot ignore the fact they have gone through all the loops and hoops.
Miss M. Wallace: The person will have been here for some time, a matter about which the people we represent are complaining. People ask us why the process is so slow and why it takes so long. In another debate on another day, we would be criticised about that. The process is slow but what the Senators are saying is that we should make it slower and longer, even though the individual should not have come here in the first place or did not have authorisation to enter the country. We need laws which stand up. The people we represent will not thank us for having a deportation law which is unworkable.
Take, for instance, the deportation process under the Immigration Act, 1999. That Act sets out a detailed step by step process for dealing with persons who are liable for deportation – a  process which culminates either in the making of a deportation order or in permission to remain in the State being given or renewed. The steps need to be mentioned at this stage because it is important that we know the person has gone through these steps before the point of deportation.
The person is first questioned, formally notified that a deportation order is under consideration, told the reasons it is being considered and invited to make representations as to why a deportation should not be made. Once the time for making representations is up the Minister considers all aspects of the case, including a list of considerations set out in section 3(6) of that Act and taking into account whatever representations have been made. If the Minister decides the person should leave the State the deportation order is made. The person is notified of the order and told to report on a specified date to the authorities so their departure can be arranged. The process is generous. The public is complaining that we do not seem to be able to make it work. We are trying to make it work but for some reason Senators are trying to make it more unworkable. We have to address that.
Mr. Peter Finlay is quoted as saying that the idea that a High Court case could be prepared in 14 days is lamentable. The issues and facts in any case are very clear by the time a decision is given. Every decision is supported with reasons and the law applicable is reasonably self-contained. I see no reason that a competent barrister could not master such a brief within 14 days – there are examples of where this occurs – especially where in the asylum process legal aid and interpretation facilities have been available at every stage of the process.
Senator Connor probably did not realise what he was saying about the Minister. Yesterday I listened to the debate in the House in my office and I heard the Minister being very welcoming. He used the word “welcome” often in his speech.
Miss M. Wallace: What the Minister was being accused of today was racism. I do not think it was the Senator's intention to do that – I hope it was not. The Minister has a tough job and he has taken very seriously his obligations to all those who come to our shores, even those who do so illegally, and we have to bear that in mind. Many of the people we welcome have come here illegally but they are given all the opportunities to defend their case. We have to be fair to a Minister who has a tough job in this regard and who faces the public who are asking all of us – I am sure Senators are not immune – why we are not in a position to have effective deportation when it gets to that point. We have to be sensible and practical, and the process has to work when a person has been through all the hoops and loops.
Mr. Norris: Reducing the period of leave to apply for a judicial review to 14 days is quite outrageous, particularly in view of the Department's policy of dispersing refugees around the country. This makes it difficult for people as they are often emotionally distressed and living in rural areas on limited means. People in direct contact with the situation are strongly of the belief that such a restriction on time is unjust and impractical. The real concern is that it is motivated by a desire to get rid of people as speedily as possible.
If people are to receive justice they should have reasonable access to it. However, starving them of that right by restricting the time in this niggardly manner seems to be an attempt to deprive them of reasonable access to the courts to seek a judicial review.
Mr. J. Cregan: On Second Stage I stated that the more the processing of applications could be speeded up the more effective and streamlined the system would become. If we wish to encourage the Minister to speed up the system and get people through it faster, it would be totally contradictory to suggest he should stop at the other end of the process.
The people we are talking about are not refugees because the Government does not deport refugees. It has brought in thousands of refugees who have been made feel welcome and have been well treated and looked after. We are talking about asylum seekers who have gone through the system on two occasions, who are being given an opportunity to go through it a third time, but we are saying the Minister should not deport such people. We have to make up our minds whether everyone who comes into the country should be allowed stay or whether we are prepared to make the distinction between refugees, illegal immigrants and asylum seekers.
It is fair and proper that the Minister should carry out his responsibilities by giving people a chance. However, what if they come through the system and are deemed not to have grounds for being granted refugee status? If we can speed up the system at that end, surely we will speed up the processing of applications. That can only be good for the system.
Mr. Norris: In respect of the idea of people being labelled as deportees and having forfeited their right to be considered as asylum seekers or refugees, that is not the case until the final appeal is exhausted. In the period in which a judicial review is being sought, they still have an ambiguous status.
I had the privilege of working with the Minister of State on the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights when she showed herself to be acutely intelligent and to have decent, strong human feelings.
Ireland and other European countries are essentially involved in the construction of fortress Europe. However, over the past few years there have been over 2,000 deaths during the deport ation process. On Second Stage Senator Connor referred to a notorious case of a woman from the former Belgian Congo who was literally sat on and squashed to death by Belgian police on an aeroplane. Not many people realise that over 2,000 people have been killed by different European police forces or have committed suicide because they were so desperate not to be returned to the countries from which they emigrated.
These cases put into context the question of why people leave a country with a beautiful climate and environment but a savage political situation. Why would people leave their families and the culture they know to come to Ireland or other European countries, very often by dangerous and difficult means, and then be so distressed that many of them are killed by police or commit suicide? This does not suggest it is something entered into lightly for frivolous notions of enhancing their lifestyles. Many more of these people are desperate than we are prepared to admit. They may not fit the narrow categories we have defined for refugees but in any human sense, many of them qualify as such.
Mr. Connor: I concur with Senator Norris's comments, particularly those concerning the Minister of State. Senator John Cregan said there is a necessity to speed up the process when someone has been through the court system and had an application for refugee status rejected. There is another mechanism open to such people and that is the right to seek a judicial review of the decision.
Mr. Connor: The Senator is trying to suggest that people are no longer refugees once the process is out of the way and the courts have rejected the application, but before people have exercised their right to a judicial review. The law states, and the Constitution has been interpreted as stating, that a non-citizen has an equal right of access to the law. Thankfully this has been stated many times by the courts. All we are seeking is that an asylum seeker or refugee would have the same right of access to the courts and to exhaust every avenue open to him or her as any other person involved in any other kind of offence or application.
I remain convinced there is only one reason for the Government's approach and that is to restrict and delimit the right of asylum seekers or refugees because the Minister wishes to do so. He wants to make these people feel uncomfortable and unwelcome so they will be got rid of as quickly as possible. This follows the line taken by the Minister's constituency colleague, Deputy Healy-Rae. I regret that no one in Government, particularly the Minister for Justice, Equality and Law Reform, spoke out against the sentiments expressed by Deputy Healy-Rae when he said a mechanism should be put in place to show these  people the road. Within hours of that statement the Minister said he intended to bring in new draconian laws.
Acting Chairman: I am reluctant to say so but the Senator is sailing close to the wind. The Senator is aware it is a breach of all conventions of debate in this House to refer to people outside the House.
Ó Fearghail, Seán.
Question declared carried.
Amendment declared lost.
Mr. Connor: I move amendment No. 6:
In page 7, lines 47 to 50, and in page 8, lines 1 to 10, to delete subsection (3).
Miss M. Wallace: The amendment is opposed because it would remove the provisions which confine appeal to the Supreme Court to appeals on a point of law. Subsection (3), which the amendment proposes to delete, confines the right of appeal from the High Court to the Supreme Court in judicial reviews of immigration and asylum matters to cases where the High Court certifies that its decision involves a point of law of exceptional public importance and that an appeal to the Supreme Court would be desirable in the public interest. The provision applies to decisions of the High Court to grant or refuse leave to apply for judicial review, which would arise at the earliest stages of the judicial review process, and also to the decisions of the High Court on the merits or otherwise of the judicial review application.
To look closely at the words used in the subsection and their precise application to the cases in  question, let us look at the situation of a person liable to be deported who goes to the High Court claiming that the procedure leading to the deportation order was flawed in some respect. In order to get past first base, the potential deportee has to show the High Court there are substantial grounds for this assertion. As the application is not ex parte, the Minister is in a position to put counter arguments and factual clarifications before the court. The court, having heard both sides on the preliminary issue, should have a good basis for its decision, whichever way that goes. If the court decides there is substantial ground for arguing that the deportation procedure was flawed, the Minister, if he is not happy with that decision, can seek leave to appeal to the Supreme Court.
The subsection states that, in those circumstances, in order to be given leave to make such an appeal, the Minister must persuade the court that its decision involved a point of law of exceptional public importance and that it is desirable in the public interest that the appeal be heard. Similarly, if the High Court has refused the application for leave to seek judicial review, it will be for the applicant to demonstrate to the court that these two conditions were met in order to be allowed to appeal. In circumstances where the High Court has had the opportunity of hearing both sides of the issue, that is a perfectly reasonable restriction on the right to appeal.
Let us consider the subsection as it will apply following substantive consideration of the judicial review. The High Court will have arrived at a decision following full exposition of the facts of the deportation process, as applied to the particular case, including all the documentation. It will have heard both sides of any dispute on the facts of the case and detailed legal arguments on the issue of whether there was a flaw in the procedure, as applied to the person in question. If, after all that, the Minister or the person in question is dissatisfied with the High Court's decision, then it is not unreasonable that it should be for the Minister or the person seeking to appeal that decision to the Supreme Court to show the High Court that there is a point of law of exceptional public importance and that an appeal would be in the public interest.
The constitutional position is clear. Under Article 34.4.3, the Supreme Court's appellate jurisdiction from the High Court is “with such exceptions and subject to such regulations as may be prescribed by law”. This subsection is just such an exception or regulation. Protection under Article 34.4.4 for appeals involving constitutional issues is effected in paragraph (b) of the section. Where the High Court is asked to give a certificate of the type set out in subsection (3)(a) and refuses that request, the refusal is itself appeal able to the Supreme Court because such a refusal has not been excluded specifically in the provision. Article 34.4.4, accordingly, applies in the normal way.
In all, I am of the view that the appeal provision in subsection (3) is of a piece with the general intent of this provision to ensure, consistent with the interest of justice, that the pursuit of court proceedings will not unnecessarily delay the processing of cases in the immigration and asylum areas and that the general interests of the public will be served by its retention in this section.
Mr. Norris: This amendment was tabled in my name and that of Senator Connor. It is an important issue. The Minister of State has just rehashed the Second Stage speech of the Minister for Justice, Equality and Law Reform. She is right that this kind of limitation is possible on legal grounds and that it is envisaged under the Constitution – I am not saying anything other than that. However, it is not required or necessary and it represents a further restriction of the rights of the asylum seeker.
The Minister is saying that only technical grounds apply and that there must be demonstrable flaws in the procedure. It is seen entirely from the Minister's point of view, as is evident from the speech of the Minister for Justice, Equality and Law Reform and the reply of the Minister of State, and there is no attempt to imaginatively encompass the plight of the individual before the court. The House would want to play a role in trying to ensure the rights of the individual are protected and safeguarded.
Several times the Minister used the phrase “an exceptional point of public importance”, which imposes a very high level test. The point must be exceptional, that is, quite unusual or remarkable, which is very restrictive. What about an ordinary point of public importance? We are talking about degrees of importance and saying it must be exceptional. We are also saying it must be of exceptional public importance, but what about the importance to the individual? There may well be points of extraordinary and exceptional importance to an individual which may not constitute a fundamental or exceptional point of constitutional law. The point may be extremely important for the individual and even be of moderate public importance, but we are imposing a test of exceptional public importance. The law should enshrine the interests not just of the Minister and the Department, or even the exceptional interest of the public, but attempt to encompass the rights of the individual making the application. For that reason we should press the amendment as far as possible.
 Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Section 5 agreed to.
Sections 6 to 8, inclusive, agreed to.
Question proposed: “That section 9 stand part of the Bill.”
Dr. Henry: The proposed subsection (4A) will be quite difficult to put into practice for those being transported around the country. I hope the greatest possible aid is given to all refugees – or whatever phrase one wants to use – to help them keep the information coming forward to the commission. All too easily they could run into trouble. I have been involved with some people in Dublin and I have found it difficult to keep track of them because they have been moved quite frequently. They must continue to send in information and I hope the difficulty this will pose for some people will be taken into account.
Question put and agreed to.
Dr. Henry: I move amendment No. 7:
In page 10, paragraph (a), between lines 32 and 33, to insert the following new subparagraph:
“(ii)by the insertion of the following subsection before subsection (2):
‘(1B)A person detained under subsection (1A) shall not be detained for a period of longer than 48 hours save by order of a court.'.”.
This is important because the Bill does not provide a time limit in this regard. As far as I can see a court order is not necessary and I think it is extremely important that people can only be detained for 48 hours unless there is an order from a court.
Miss M. Wallace: The amendment is opposed. Section 5 of the Immigration Act, 1999, already contains detailed provisions in relation to the detention of persons who are the subject of a deportation order, including the non-detention of minors in these cases. The section states that a person shall not be detained for a period or periods exceeding eight weeks in aggregate.
The amendment proposes a step on those  endeavouring to execute a deportation order which can be of no constructive purpose. An order signed by the Minister is valid on its face and, of course, can only be made after the process set out in section 3 of the Immigration Act has been gone through. If the correctness of the procedures leading to the making of the order are to be questioned, the subject of the order has the right to institute judicial review proceedings. Section 5(5) of the Immigration Act provides for a court review of detention where a deportation order is under challenge. Section 5 of the Bill before the House provides a specific statutory basis for judicial review in immigration and asylum cases tailored to the needs of those cases.
In relation to detention in prison or a Garda station, there are well enshrined processes for obtaining legal assistance on demand, for example, the 1987 custody regulations in relation to Garda stations, and there is ample opportunity to invoke the jurisdiction of the High Court to initiate habeas corpus proceedings on an application for judicial review. There is little point in providing an alternative process which would simply serve to impose an unnecessary procedural hindrance to the execution of the deportation order lawfully made which has not been complied with by the deportee. Furthermore, the provision would be incapable of advancing the interests of the deportee in any meaningful way. A visit to a court, as envisaged by the amendment, could not stop the deportation, which could only be done by the High Court by way of judicial review proceedings.
The proposal in the amendment would only waste more time, impose a huge burden on Garda time, soak up court resources, consume departmental resources and be a drain on the Exchequer in the form of barristers' fees, all for no productive purpose. It would not advance the interests of the deportee one iota, beyond the perfectly adequate protection under the Constitution and otherwise in our laws in the form of habeas corpus and judicial review remedies.
Dr. Henry: Forgive me, but my poor brain cannot take in all that Civil Service speak so quickly. It began to remind me of “Yes Minister”. I presume it means my amendment is unnecessary, and the Minister could have told me that which, I regret to say, is about as much as I understood.
I do not like seeing something so open-ended. I presume I will be able to find in the Minister of State's explanation the reason it does not matter. Could people be detained for seven or 14 days? I suppose they could. Has the Minister of State anything further to say?
Miss M. Wallace: It is possible. We are talking about the point at which the person is about to  be deported. We spoke about this in the other House. In many cases it will involve the person being detained in a Garda station overnight while an airline ticket is purchased and the passport is being sorted out – that is what travelling is about. Unless there is a huge difficulty with the documentation or in purchasing an airline ticket, which there should not be, most people should not be detained longer than overnight. It is about making the necessary travel arrangements.
Dr. Henry: I understand what the Minister means, but there can be difficulties in deporting people.
Miss M.Wallace: A person in prison in New York who is to be deported to Ireland, and who explains that they have their passport and that the airline ticket could be purchased, could be put on an airplane tonight. If the person does not speak English, interpretative facilities are provided. The difficulty arises if the person is awkward, totally unhelpful and obstructive, does not use an interpreter, explain where their passport is or say from which country their details may be obtained. However, in such a case the fault would lie with that person. If a person says where the documentation which is necessary to travel is obtainable, it should not be difficult. A delay would occur if the individual failed to communicate or be helpful in terms of documentation, or destroyed their passport. However, if there is normal communication, the person should only be in the Garda station overnight. That is the norm. It is a matter for the applicant. I can do no more.
Dr. Henry: I take the Minister of State's point. If one is in New York one will be sent back as fast as one can go because of the availability of flights, but has the Minister of State ever tried to book tickets to Lagos in Nigeria? There are many Nigerians living here. Perhaps the Minister of State has more influence, but many weeks could go by before someone is eventually sent back. It may even be necessary to send someone with them. I just wish that if they have to be detained for a period longer than 48 hours they will be detained somewhere other than in a police station, and it should not be a prison.
Miss M. Wallace: If people co-operate they will not be detained.
Dr. Henry: Suppose they are co-operative and the authorities are having trouble in getting them on a flight-—
Miss M. Wallace: If they are co-operative they will have no trouble.
Dr. Henry: If there are no seats available they will have to stay in the detention centre even though they are co-operative.
Miss M. Wallace: If they are co-operative they will not be detained. A seat will be obtained on a flight and they will be facilitated.
Dr. Henry: If they are co-operative they will not be detained.
Miss M. Wallace: They will not be detained once the travel arrangements are sorted out.
Dr. Henry: If they are co-operative.
Miss M. Wallace: Yes.
Amendment, by leave, withdrawn.
Question proposed: “That section 10 stand part of the Bill.”
Dr. Henry: I wonder how useful it is to include the new subsection (1)(c) in the Bill given that many people are in possession of or have destroyed forged identity documents in getting here. It is only a comment.
Acting Chairman: I am not sure if it is the acoustics of the House but the Senator will forgive me for saying that it is sometimes difficult to pick up everything she says.
Dr. Henry: I am sorry.
Acting Chairman: I did not quite catch her last question. I am not sure if the Minister of State did either.
Miss M. Wallace: It was just a comment.
Acting Chairman: Forgive me. I wonder whether it is a problem of acoustics rather than of the Senator.
Dr. Henry: I think there is a problem and I will give the explanation. As they are blanked off, our voices do not reverberate off the windows. The sound is being absorbed by the blinds. The microphones are not the problem. I have raised this matter, to which I have given some thought, with the Captain of the Guard.
Question put and agreed to.
Sections 11 to 13, inclusive, agreed to.
Title agreed to.
 Bill reported without amendment and received for final consideration.
Question proposed: “That the Bill do now pass.”
Mr. J. Cregan: I thank the Minister of State for the manner in which she dealt with the amendments to the Bill. The Senators who tabled them have genuine concerns and a deep interest in the subject matter under discussion. I thank all sides of the House for their co-operation. We went off the rails slightly at one stage but we managed to get back on an even keel and finished the debate diplomatically.
Mr. Connor: I thank the Minister of State for the courteous way in which she dealt with Committee and Report Stages and for her comprehensive explanations on all the points raised, which we are convinced are valid. While it will now go to the President for signature, I remain convinced that this is not a good Bill. I have to take account of what the Irish Refugee Council, Amnesty International and the first chairman of the Refugee Appeals Tribunal, Mr. Peter Finlay, had to say about it. Everybody has had their say and the Bill has been passed by both Houses. I thank the Minister of State and her officials for the courteous and comprehensive way in which they dealt with the amendments.
Dr. Henry: In a good loud voice, I congratulate the Minister of State on bringing the Bill before the House. I am sure she will understand that we have received representations from the Irish Refugee Council and other agencies which deal with refugees. They have expressed serious concerns about the Bill. Because this country is a popular destination, we have to be very careful. It should be remembered that the Bill will be in place for a long time. We may not be so popular in the future and may come to regret what has been included in the Bill. I would like to have seen some of the amendments accepted.
Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): I thank the Acting Chairman, Senators, the staff of the Houses of the Oireachtas and the Department and all those involved in passing this important Bill which seeks to protect from abuse individuals who are genuinely seeking support by criminalising the activities of traffickers. I accept what Senator Henry and others have said that there is a need to ensure their safety. To this end the Bill provides for stiff penalties. It will be remembered that last weekend 58 young lives were lost in the United Kingdom. This is a stark reminder of the dangers faced.
 I thank Senators for tabling amendments and their positive comments in what was a strong debate.
Question put and agreed to.
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