Immigration Bill 2002 [Seanad Bill amended by the Dáil] : Report and Final Stages.

Thursday, 3 July 2003

Seanad Eireann Debate
Vol. 173 No. 18

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An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, “That the Bill be received for final consideration,” the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. The only matters, therefore, which may be discussed are the amendments made by the Dáil. For Senators' convenience, I have arranged for the printing and circulation of the amendments. They may speak only once on Report Stage.

Question proposed: “That the Bill be received for final consideration.”

Minister for Justice, Equality and Law Reform (Mr. M. McDowell): Information on Michael McDowell  Zoom on Michael McDowell  I should like to present a summary of the amendments made by Dáil Éireann to this Bill which was initiated in this House in February 2002. In doing so I propose to concentrate on the amendments which I consider to be of most importance. If there are any points of detail not addressed in this opening contribution, I will be glad to facilitate Senators who raise any of these during the debate in my closing contribution should time permit.

The carrier liability provision at sections 2 and 3 of the Bill has been refined to facilitate the payment of the fixed penalties which carriers may pay in order to avoid court proceedings for contravention of section 2 at places other than Garda stations. This change, brought about by amendments Nos. 2 to 5 in the list, has an analogue in road traffic legislation enacted since 1994.

Amendment No. 6, relating to section 4, has two effects. First, it replaces section 4 of the Bill as passed by the Seanad which, Senators will recall, provided for the new offence of employing a non-national without an employment permit as well as restating the corollary offence committed [1705] by non-national employees. That provision was overtaken by an almost identical provision in the Employment Permits Act 2003, promoted by my colleague, the Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Harney. As it is now law, the provision is surplus to this Bill. It also provides a modern law on the powers of gardaí and immigration officers to enter and search premises in the context of breaches of the Aliens Act 1935 and the Aliens Orders made thereunder, and extends the scope of these powers to the enforcement of deportation orders under the Immigration Act 1999.

Search powers under section 7 of the Aliens Act 1935 apply in relation to all breaches of an Aliens Order or an order made thereunder. This includes such matters as illegal entry to the State, breach of conditions of stay, failure to register with the local aliens office and the like. The search powers also applied to the situation where a breach of a deportation order was being investigated, since deportation orders were “orders made under an Aliens Order”, in the terms of the language used in the Aliens Order 1946. However, these orders are now made under the Immigration Act 1999, an Act which does not contain its own search and entry provision. This amendment remedies the position.

The provision in the amendment is modelled on that at section 7 of the Illegal Immigrants (Trafficking) Act 2000 and avoids the archaic and draconian language of the 1935 original. For instance, the power to “interrogate . . . all or any persons found in such place” in the 1935 Act is ameliorated in the Government's proposal to a power to ask a person's name and address. In the same vein, the text in the amendment is informed by the concept of reasonableness, a word that does not feature in the 1935 provision in any context.

In section 5 amendment No. 7 inserts a new section in the Bill which restates the law governing removal of persons refused leave to land and in doing so gives effect to certain of our Schengen obligations in this area. Every state that operates immigration controls at its borders has provisions for the follow-through on those controls, namely, ensuring people who have been refused leave to enter the state are removed – usually back to where they have just arrived from – as soon as possible. Without this, the controls are meaningless. There is broad acceptance that Ireland must have immigration controls. Accordingly, we need to ensure the removal process for those refused leave to land works effectively.

In the context of the Amsterdam treaty and in line with our policy of participation in the Schengen convention to the greatest extent possible consistent with maintaining the common travel area arrangements between us and the United Kingdom, we have opted into Articles 26 and 27 of the convention and thus the various Council directives which supplement those articles. Article 26, in particular, concerns itself with the operation of entry controls, as does the associated [1706] Council Directive 2001/51/EC. The provisions at sections 2 and 3 of the Bill fulfil Ireland's obligations under these two instruments as far as carrier liability is concerned, and this new section will implement our remaining obligations under the instruments. These obligations relate to removal of persons refused leave to enter the State and the role of carriers in facilitating that process.

Let us look briefly at the provisions of the amendment. Subsection (1) is more or less in line with present law. It sets out the persons to whom the arrangements apply. The proposed section will not apply to anyone who last arrived in the State more than three months before coming to notice: the removal of such a person must take place through the deportation process.

Subsection (2) provides a power of arrest and detention for an immigration officer or member of the Garda Síochána in respect of a person refused leave to land. This is also in line with present law but with one important exception set out at paragraph (b) of the subsection. This paragraph excludes persons under 18 years of age from detention, an exclusion which has been a feature of immigration legislation enacted in recent years but which has not until now been a feature of immigration law generally.

Subsection (3) is also modelled on provisions in the Immigration Act 1999 relating to the deportation process. It makes it clear that detention under this provision is for the purposes of removal, which should take place as soon as practicable, and that detention cannot be for a total of more than eight weeks. It sets out, similar to the deportation provisions, the periods not to be included when reckoning the total.

Subsection (4) is also modelled on the deportation provision and concerns the question of detention where court proceedings are taken challenging the removal. Subsection (5) sets out the choice of places, based on the Schengen instruments, to which a refused person may be sent back. The most usual situation, at paragraph (a), is where the person is returned to the place from where he or she last embarked for the State. The remaining paragraphs set out the other possibilities, in line with the international norms.

Subsections (6) and (7) address the logistics of the actual removal in the same way as at present. Similar provisions are in the 1999 Act for removal in deportation cases. Subsections (8) and (9) require co-operation with the removal, also as at present, and make it an offence to hinder the process.

Subsection (10) is a new feature which provides a power to an immigration officer or a member of the Garda Síochána to issue directions to a carrier for the purpose of returning a person brought in by that carrier, where known. This is the case in the majority of refusal of leave to land cases. These new powers are an enhancement of the present powers and the enhancements arise directly from the Schengen instruments. Most importantly among these new features, paragraph [1707] (d) of subsection (10) allows alternative arrangements for the removal to be made where the carrier fails or is unable to comply with a direction. Under paragraph (e) the costs incurred in these alternative arrangements in terms of maintenance, detention or removal may be recovered from the carrier as a simple contract debt through the courts. Under subsections (11) and (12), failure to comply with a direction will be an arrestable offence.

We now come to the additional amendments to the Refugee Act 1996, which I had signalled to this House when last I contributed on this Bill and which had been sketched out by my predecessor on Second Stage in this Chamber. I will address the more significant of these here but will be glad to offer further explanation on the details in my closing contribution, if Senators wish. The explanatory memorandum which my officials prepared in the context of the Committee Stage debate in the Lower House shows, in particular, the bulk of the amendments to the 1996 Act before us today set into a consolidated text of the Act itself. Copies are available this afternoon for the information of Senators.

Amendment No. 8 avails of the opportunity presented by this Bill to bring the statutory definition of “refugee” more closely into line with that in the Geneva Convention, which the Act implements, as regards the exclusion clauses at Article 1F of the convention. The United Nations High Commissioner for Refugees has welcomed this change.

Amendment No. 9 pushes out to 2005 the first year in which the Refugee Advisory Board is to produce its first biennial report. This change arises because of the passage of time since the Bill was introduced.

Amendment No. 12 is to permit more flexible arrangements to be put in place where it is necessary to require asylum-seekers to reside in specific locations and to report their presence on a regular basis. The change allows persons authorised by the Minister to make such requirements and to be reported to, and will facilitate this responsibility being given to the staff of the reception and integration agency, which provides accommodation and caters for the other needs of asylum-seekers.

We do not, as a matter of routine or policy, detain asylum-seekers while their applications are being investigated, but we do expect them to hold themselves available to co-operate in that investigation, and these provisions will ensure that asylum applicants observe that requirement.

Amendment No. 13 extends from ten to 21 days the maximum interval between court appearances in the exceptional cases where it proves necessary to detain an asylum-seeker. A person detained under section 9 of the Refugee Act as it stands must, as soon as practicable, be brought before a District Court judge to have his or her detention reviewed. If the judge is satisfied that any of the grounds set out at section 9(8) [1708] apply to the person, then he or she may commit the person to detention for a period of up to ten days. If the judge is of the view that section 9(8) grounds for detention no longer exist, then the person must be released. A person committed to detention in this way may be committed by a District Court judge for further periods of up to ten days, and each further period of detention is subject to review in the same way.

The existing requirement in section 9(10)(c) of the Act that the person be brought before the courts as soon as the grounds for detention no longer apply, allied to the court review arrangements, are to my mind sufficient safeguards against anyone being detained for longer than is necessary. However, I am concerned to ensure that where the last resort of detention is the appropriate course, it should work in a way that not only secures the protection of the rights of the detainee but also does so with a reasonably efficient use of resources.

I reiterate that there is no policy of mass detention of asylum-seekers either in being or in contemplation. By way of illustration, of the 25,000 or so people who claimed asylum in Ireland since the Refugee Act came into effect in November 2000, only about 30 have been detained under these provisions – a minuscule 0.01%. The provisions of the Refugee Act regarding detention of asylum-seekers are specific and targeted at situations where there is a real risk on public policy grounds that the interests of Irish society and the State can be adversely affected. That is as it should be.

Amendment No. 14 restates the present provisions of the Act regarding fingerprinting of asylum applicants. Fingerprinting is a valuable and non-intrusive technique for ensuring that the process for investigating asylum applications is not abused by people who make claims in multiple identities and in many countries. However, for some time I have been concerned at the growing evidence of “child-swapping” among asylum-seekers as well as the worrying growth in the number of unaccompanied minors arriving in Ireland. The present law forbids the fingerprinting of anyone under 14 years old, which limits the possibilities for investigating both frauds based on inflated child benefit claims and the very much more worrying concern of trade in smuggled children.

The changes brought about in this replacement section permit the fingerprinting of applicants under 14 years of age, but with two important safeguards: it can only be carried out in the presence of a parent, a person in loco parentis or a person appointed by the health board to make the asylum claim on the child's behalf; and the decision to fingerprint must be approved by either a person designated by the Minister or a senior garda. These safeguards ensure that the child's rights are secured. The present rules about destruction of fingerprints after a certain period of time are reproduced without change in this new section 9A.

In general terms, I do not accede to the prop[1709] osition, which is the philosophy of this section and other provisions of our law, that fingerprints should be destroyed after a certain period on civil liberties grounds. I have never been convinced of that argument. If my rights have been infringed by my prints being put in a drawer somewhere, they are not really restored by the knowledge that they have been destroyed after some period of time, although I acknowledge others may hold a different view.

The principal change of substance in amendment No. 15 is in the replacement for section 11(3) of the Refugee Act. This will have two effects. It will put on a statutory footing the right of the UNHCR representative to attend any interview under the section, which has happened hitherto only on an informal basis; and it will relieve the Refugee Applications Commissioner of the need to wait in every case for seven working days to elapse after the interview before a recommendation on the application can be made.

Matters which might have been raised in representations made during that period can instead be raised on appeal where a negative recommendation is made. The provision as worded does not prevent the commissioner from considering matters raised by representations made in the interval between the conduct of an interview and the making of the recommendation. In fact, representations made after the interview are made in only very few cases. However, I see little merit in delaying the progress of every case for almost two weeks in circumstances where the provision is little used and where the right of appeal in any event more than satisfies the requirements of fair procedure.

Amendment No. 17 inserts three new and important sections into the Refugee Act. The first of these, new section 11A, sets out the circumstances where, by contrast to the more normal shared burden of establishing whether an applicant is a refugee or not, that burden is to rest on the applicant alone. In particular, where an applicant comes from a country like, say, Poland which is generally regarded as safe and not a generator of refugees, this section will give rise to a presumption, rebuttable by the applicant, that he or she is not a refugee. It does not say that in such circumstances that person is never a refugee, but it puts the onus on that person to show it. I will come shortly to the process for designating countries as safe countries of origin.

The second new section, 11B, inserted by amendment No. 17, sets out a range of matters to which regard is to be had when assessing the credibility of an applicant. These are largely a matter of common sense and serve to put beyond doubt what factors are relevant in assessing credibility, a matter so often critical to the success or otherwise of an asylum claim. The new section 11C puts on a statutory footing the requirement of the applicant to co-operate in the investigation of the claim and, in that context, to give all information at the earliest opportunity to the investigators.

[1710]We now come to what I regard as the core provisions of my proposals for reform of the Refugee Act, which are at amendments Nos. 18 and 19, with consequential matters dealt with at Nos. 15, 16, 20, 22 and 23. Between them, they offer a complete replacement for the current provisions in the Refugee Act 1996, for the foreshortened investigation of certain applications. The replacement scheme provides for the prioritisation of applications at first instance by reference to a range of criteria and the acceleration of the appeals process for negative recommendations at first instance, which have certain characteristics.

In overview, the current provisions of the 1996 Act imply a foreshortened first instance investigation process for an application which comes within one of the categories set out in the current section 12(4) of the 1996 Act, with a recommendation under that section by the Refugee Applications Commissioner that the applicant should not be declared a refugee.

Such a recommendation, that the application is “manifestly unfounded”, in the expression used in the present Act, can be appealed to the Refugee Appeals Tribunal, but the appeal must be made within ten working days of the recommendation rather than the normal 15 working days, and the appeal will be determined on the papers with no oral hearing. The tribunal under the current section 16(2) may either affirm the commissioner's recommendation that an application is manifestly unfounded or set it aside and refer the application back to the commissioner for investigation.

A difficulty with the current provisions is that it is often not possible to determine whether an application comes within one of the categories set out in the current section 12(4) until it has been fully investigated. The power on appeal to remit such a case for a second full investigation can lead to duplication of work for the commissioner and possibly for the tribunal if the matter is appealed after a negative recommendation following that second investigation. Far from being an accelerated procedure, it can end up in some cases being protracted and unnecessarily so. What was thought of as a fast-track process for manifestly unfounded claims turned out to be a loop which added considerably to the length of many cases.

The proposals in these amendments are designed to replace these provisions with arrangements that have a number of significant features. They provide for the priority investigation of selected classes of applications at first instance, and those classes are at paragraphs (a) to (n) of the new section 12(1) in amendment No. 18. There is a power for the Minister to designate the classes for priority treatment in the new section 12(1).

Selection for priority treatment at first instance does not carry any implication as to the soundness or otherwise of the basis for the application. One may compare, for instance, paragraph (g), providing for prioritisation of applications which are likely to be well-founded, with paragraph (i) [1711] which provides likewise for applications which on the face of it show no basis for the contention that the applicant is a refugee. Both these are classes of cases which should, if possible, receive priority treatment over the normal run of cases.

Neither does selection for priority treatment mean anything less than an examination of the merits of each case. This point is worth stressing because it is an important departure from the implication of, if not necessarily the practice under, the current section 12. The Minister has the power to designate for priority investigation applications relating to safe countries of origin, and to designate those safe countries of origin having regard to the criteria set out at new section 12(4) and following consultation with the Minister for Foreign Affairs.

The Minister can at amendment No. 16 prescribe different procedures for the investigation of different classes of cases. In every case the investigation is of the merits of the claim. Following investigation of the merits of the application, whether as a matter of priority or in the normal course, the commissioner produces a report setting out the findings of the investigation and recommending whether the applicant should be declared a refugee. If the report of the investigation contains a negative recommendation and also includes a finding of any of the types set out in new section 13(6), any appeal made in that case will be dealt with in an accelerated way with the following characteristics.

The time for making an appeal will, as for manifestly unfounded cases under the current section 12 of the 1996 Act, be ten working days instead of the normal 15 working days, and the appeal will be on the papers only and there will not be an oral hearing. This is similar to the current provisions of the 1996 Act for manifestly unfounded cases.

The findings in the new section 13(6) are broadly comparable with, though not necessarily equivalent to, certain of the “manifestly unfounded” criteria in the current section 12(4) of the 1996 Act. The Minister may under the new section 13(7) direct that certain classes of cases be dealt with under a special procedure with the following features.

Applicants whose cases are to be dealt with under this procedure are to be notified at the start of the investigation that their cases are being dealt with in this way, and if following investigation the commissioner makes a negative recommendation and the application has one of the characteristics set out in the new section 13(6), any appeal against the recommendation must be made within four working days from the recommendation as against ten working days for other such cases, and the appeal will be dealt with on the papers without an oral hearing.

The Refugee Appeals Tribunal's power to remit certain cases will no longer exist because it will not be necessary, and the tribunal may not set aside the commissioner's negative recom[1712] mendation unless it is satisfied that the applicant is a refugee. This measure is to be found in the new section 6(16A) in amendment No. 23. The tribunal will as a matter of priority deal with appeals having one of the characteristics set out in the new section 13(6).

The prioritisation of cases will have to be done in a careful and balanced way. To designate everything as a priority would mean that nothing would be a priority. We have to be careful not to place an intolerable burden on the commissioner. However, proper application of this provision will result in more streamlined and effective management of the caseload of the Refugee Applications Commissioner and the Refugee Appeals Tribunal, and that is something which will benefit both institutions and those in need of asylum from persecution.

The power to designate safe third countries, to which I have already referred briefly, is a significant addition to asylum law. Its purpose is to address the increasing number of asylum claims from countries generally considered safe and from where the overwhelming majority of asylum claims are found to be without foundation. Such claims are an unnecessary burden on the asylum determination process and delay the recognition of those genuinely in need of protection. The safe country of origin concept is well recognised internationally and is a feature of asylum systems in many European Union member states. That a person comes from a designated safe country manifestly does not mean that he or she could not possibly be a refugee but it will lead to the following legal consequences.

An applicant from a safe country of origin will, by virtue of the new section 11A, be presumed not to be in need of protection, a presumption which he or she can rebut. It will be a factor which may be taken into account by the Minister in deciding whether to prioritise cases under new section 12. In the case of a negative recommendation at first instance under the new section 13, it may result in his or her case being treated in an accelerated manner under that section.

If a person claims that the Canadian Government is persecuting him or her, it may possibly be true and no one can deny it, but it is more likely to be untrue in light of experience because we do not believe that the Canadian Government persecutes people. In such circumstances, the applicant would take on the onus of establishing this fact. If the Minister was of the opinion that such applications were being made simply to gain a foothold in Ireland with a view to disappearing into the woodwork and never processing the claims, he or she could direct that they be prioritised and the appeal would be speeded up.

I emphasise that a person who comes from a safe country is not to be denied access to the asylum procedures, and it is only after the investigation of the claim results in a negative decision that it will be subject to the accelerated appeals procedure provided for in later amendments. This is only right. If a person does not need protection, [1713] he or she should be dealt with fairly and swiftly but should not be allowed to delay unduly the claims of genuine applicants.

Section 13(6), to which I have referred briefly already, is in effect the replacement for the “manifestly unfounded” categories in section 12(4) of the Act as it stands. The findings set out at the new section 13(6) are broadly comparable with, though not necessarily equivalent to, certain of the “manifestly unfounded” criteria under the existing law. They cannot be treated as equivalents in particular because these findings would apply only after negative recommendations have been made following investigation of claims to establish whether applicants are refugees, and do not necessarily go to the core of the negative recommendation. The broad correlations or comparisons are set out on page nine of the explanatory memorandum prepared by the Department.

The question whether a finding listed in this subsection is to be included in the report only arises where, at the conclusion of the investigation, the commissioner's recommendation is negative. Thus, for example, the fact that an applicant did not apply as soon as reasonably practicable after arriving in the State and had no reasonable cause for applying late, as at paragraph (c), would not be relevant if the commissioner's investigation of the claim led to a positive recommendation that the applicant was a refugee and would not affect that positive recommendation. Findings of the type listed in the subsection form a basis for accelerating the hearing of the appeal only where a negative recommendation has been made by the commissioner. They are not necessarily a basis for a negative recommendation per se.Subsection (7) of the new section 13 enables the Minister to specify classes of applications to be dealt with at first instance by the commissioner under the special provisions of the new subsections (8) and (9). What is in mind here is that for a category of cases specified in a direction under this subsection there will be a special team of the staff of the Refugee Applications Commissioner dedicated to dealing with applications coming within this category within a matter of days of the application being made.

Selecting the category by reference to a safe country of origin or a small number of safe countries of origin will mean that the commissioner's interviewing and decision-making staff can be expert in the background information on those countries and, with the economies of scale that this brings, can address the protection issues of the applications in the selected category quickly and directly. If, on the other hand, we were to proceed on the basis that there was no prioritisation and no specialisation, it would mean that, on a random basis, officers considering applications would have to mug up on the facts of every country without taking the elementary step of concentrating those types of application in the hands of one person or a team of persons who [1714] would develop a specialised knowledge of their subject.

Other practical features of such a system will be the ready availability of legal advice to applicants, and, where necessary, the ready availability of interpreters to service the needs of both consultations and interviews under the Act. Applicants in this stream will be notified early in the investigation, under subsection (8) of the new section, that if the investigation results in a negative recommendation and that negative recommendation includes a finding of the type listed at subsection (6), they will have four working days within which to appeal, as opposed to ten in respect of other recommendations with such findings. Any appeal will be dealt with as a matter of priority and without an oral hearing.

For this system to operate fairly and with a fast turnaround time, it is likely that the applicants selected for this high priority process will be accommodated in specific locations within the direct provision system, and required under section 9(5) of the Act to reside there and report at regular intervals to an immigration officer at that location; this arrangement will facilitate the hand-delivery of letters and notices to applicants and their legal advisers and thus help to ensure expeditious processing of the applications.

Overall, this is a fair and balanced approach to the types of rejected cases envisaged in subsection (6), namely, flimsy claims; claims where the applicant lied or suppressed the truth in a gross fashion; failed claims made in order to prolong or postpone deportation; failed claims where the applicant had already applied for asylum elsewhere; and claims made by persons who live in safe countries. As with all other cases, I emphasise every such case will be examined on its merits at first instance, and if the examination shows that the applicant is not a refugee, in these special instances we will demonstrate, by disposing of the appeal in an accelerated way, that we are serious about not letting our asylum process be abused.

I have also taken this opportunity to facilitate greater flexibility for the Refugee Applications Commissioner in deploying RAC resources to reduce the burden of paperwork by making certain technical changes, including the transfer of provisions from current section 11 to the new section 13. They do not impinge on the substance of the commissioner's investigative process or the fairness of the procedures as far as the applicant is concerned.

Amendment No. 25, as well as repeating for drafting reasons the provision already approved by the Seanad regarding consent to the identification of asylum seekers in publications, adds a new provision to section 19 of the 1996 Act which will facilitate the publication, suitably anonymised, of selected decisions of the Refugee Appeals Tribunal. That is a matter Senator Tuffy and I debated when the Bill was last before this House.

Amendment No. 26 replaces section 22 of the Refugee Act, the section that enables the imple[1715] mentation of the Dublin Convention. The replacement provision will not only facilitate the operation of the Dublin Convention and the agreement extending its operation to Norway and Iceland but also any future agreements which Ireland may enter into with other safe countries of transit – possible other examples might be Switzerland and Canada – for the return of asylum seekers where the two countries agree to accept asylum seekers who have arrived from the other country. This is an important process. It is a safe third countries process. It will also enable the necessary domestic law provisions to be put in place to cater for the coming into effect next September of the Council regulation which is to replace the Dublin Convention.

All of these instruments have in common the principle whereby those fleeing from persecution in their own countries are expected to seek protection in the first country that can offer a safe haven – a principle known as the safe first country principle, the first country being the country of origin and the second country being that where refuge is being sought. Leading academic commentators, both at home and abroad, on human rights and refugee law acknowledge that the right to seek asylum does not imply a right to seek it where one pleases. It follows that the right is satisfied if the individual in need of protection has the opportunity to obtain protection wherever it is that the individual finds himself or herself, and it is a matter for the individual to seek to avail of that opportunity. Provisions on safe third countries are, to my mind, an essential feature of any asylum system. They bring an element of order and rationality internationally to the question of providing protection for those who need it; they pose no threat to the genuine refugee and act to reduce the prevalence of multiple asylum claims and related abuses of national asylum systems.

The differences between the current section 22 and the proposal in this amendment are set out in some detail in the explanatory material which my officials have supplied to Members of the House and, in particular, in the consolidated text of the Refugee Act and its footnotes on pages 38 to 41 of the appendix. Most of those differences are merely technical changes to allow for the additional instruments to be implemented under the section. I do not propose to go into them. Instead I will concentrate on the more important innovations in the new section.

The first new feature is at subsection (2)(a), in combination with subsection (4)(a). These provide that the decision at first instance whether to send back an asylum applicant may be taken by the Minister, the Refugee Applications Commissioner or an immigration officer, as may be specified in an order under the section. Under the Act as originally passed in 1996, those decisions were taken by an authorised officer of the Minister; since the 1999 amendments came into effect in November 2000, they are dealt with by the Refugee Applications Commissioner. This pro[1716] posed change will cater for the possibility that for applications made at a point of entry into the State, the first instance transfer decision could be made by, say, an immigration officer, while for applications made inland, the responsibility could be left either with the commissioner, if it came to her attention, or by staff in the Department of Justice, Equality and Law Reform should it come to the Department's attention. This will offer more flexibility in devising procedures to deal with different streams of applications.

The new subsection (2)(c) provides for the possibility of an appeal against the transfer of an application being non-suspensive, in other words, a decision to transfer an application to a convention country or a safe third country can have immediate effect, even in cases where an appeal has been made, on the basis that sending the person there will not put him or her at risk of persecution and the country will be processing the person's claim for asylum, in the case of convention countries, or consistent with analogous terms of any future agreement that might be negotiated with a safe third country. This means that if we have such an agreement with, say, Switzerland and if somebody gets off a Zurich flight into Dublin, an immigration officer will be in a position to say we have an agreement with Switzerland and the person must go back to Switzerland. If the person says he or she wants to appeal against that decision, the officer will say he or she will have to appeal against it from Switzerland. He or she cannot appeal against it in Ireland. That is what a non-suspensive appeal means. It does not mean one cannot make an appeal; it just means he or she cannot put his or her foot in the door and keep it there in circumstances where we are equally satisfied that the foot would be just as safe if the door was shut against the person and he or she stood outside.

Where an order provides such non-suspensive effect for appeals in these cases, it will be without prejudice to the outcome of an appeal in any particular case. Thus, if an appeal resulted in a determination that the application should be processed in Ireland, the applicant would be taken back into the State for that purpose.

Paragraph (d) of subsection (2) provides for a power of detention not exceeding 48 hours for a person who arrives in the State directly from a convention country or safe third country pending a decision on the matters set out at paragraph (a) of subsection (2), those matters being whether the application should be examined in the State or transferred to a convention country or a safe third country. The purpose of this provision is to allow for the temporary detention of an asylum applicant, usually at a port of entry, while the question of transfer to another convention country or to a safe third country is being explored with that country. In other words, if a person arrives on the Zurich flight, we cannot just send that person back to Zurich if the Swiss authorities, if they were part of this agreement, were not sure if the said person actually was on the Zurich flight in [1717] the first place. There has to be a period for negotiation and a co-relative period of detention to enable that administrative process to take place. At present, such inquiries can take a number of weeks.

The “Dublin Regulation” provides for the possibility of individual member states agreeing to put in place, as between themselves, arrangements for the rapid exchange of information, in particular fingerprint data and responses to requests for taking back applications. We would envisage that where such arrangements are in place there would be a fast-track process whereby the two countries would communicate by fax with each other and a quick decision would be made about a person, which would enable them to be sent back to the safe third country. Such agreements have also been entered into by certain states that are parties to the Dublin Convention, for example, Denmark and its neighbours. Prompt return of an asylum applicant to the appropriate state where the claim should be determined can be achieved when rapid response arrangements are in place. If they are not in place, the whole system breaks down in a kind of bureaucratic nightmare. Any appeal can be determined after the return and the person can be detained for a short period in order to facilitate the return.

An important feature of the present section 22, which is not being reproduced in the new provision, is the present subsection (5). That subsection requires the prior agreement by a convention country to accept back an asylum application before the State may transfer it. The Dublin Convention contains provisions which fix a convention country with responsibility for dealing with an asylum claim if it fails to respond to a request for information or a request to take back the application within certain time periods. This provision prevents Ireland from availing of those provisions in the event of default by another convention country, in other words, if we get no response, we can put somebody back on the plane, which means people do not have the option of making the convention non-operative by the simple expedient of failing to respond to requests made under its auspices. For applications coming in the other direction, the State itself is nonetheless fixed with responsibility in any case where it is in default. This unique anomaly among Dublin Convention signatories serves no useful purpose and I do not propose to perpetuate it in the new legislation.

Amendment No. 27, the last of the Refugee Act amendments in this Bill, addresses the question of how the new and amended provisions of the Refugee Act are to apply to applications on hand at the time that the amendments commence. Having considered the matter carefully, I am satisfied that the crucial point for applications on hand at that time is whether or not the investigative interview under section 11 has taken place. If the interview took place before these changes come into effect, then the Act will continue to [1718] apply to those applications as if the changes had not been made. In other words, if the interview has started the person will be dealt with under the old Act.

This means that the existing Act will continue to apply to cases on hand where, at the commencement the Commissioner is in the process of deciding what recommendation to make after the interview; the Commissioner has given a negative recommendation and the time for appeal has not yet expired; the applicant has appealed the recommendation and the case is before the tribunal; the case is being re-investigated by the Commissioner following remittal by the tribunal under the existing section 12 “manifestly unfounded” process; the Minister is about to make his decision under section 17, whether or not to grant a declaration that the applicant is a refugee.

In all of these cases, the applicant had necessarily been interviewed before commencement of this new Bill. If the applicant has not yet been interviewed at the time of commencement, then the Refugee Act, as amended by this Bill, will apply, and subsection (2) of this section ensures fairness by requiring that every applicant who is to be affected by the changes will be given a statement describing the changes and pointing out how the rules under which their application has been dealt with have been altered. That has to be given to the applicant before he or she can be interviewed under the new rules.

The purpose of this amendment is to place in statute form the duty of public bodies to share information in their possession for the purposes of the Refugee Act 1996 or of the administration of the law relating to the entry, presence in the State and removal from the State of non-nationals, and for the purpose of the operation of the Social Welfare Acts. There is currently no such statutory requirement on public bodies. However, on the basis of common law, as affirmed by the courts in Desmond v. Glackin ([1993] 3 IR 67), it can be asserted that, in the absence of a clear statutory bar on disclosure of information between Government bodies, such bodies are permitted and indeed expected to share all relevant information. Having regard, however, to the variety of statutory provisions in this matter, among them data protection legislation and social welfare legislation, and the duties of confidentiality arising under those, I regard it as prudent to make a provision putting the matter beyond doubt as regards non-nationals in the State.

The remaining amendments on the list deal primarily with drafting or merely technical matters. I am aware that I have gone on at some length, but it is necessary, I think, to put on the record what has happened in the other House since it did not happen in this House.

The Bill approved by the Senators contains important measures designed to give the State more effective immigration control processes and, in the area of asylum law, amendments [1719] designed to make the process of establishing who is and who is not a refugee more efficient. Before the Bill had left this House, I had given clear indications of my intention to ask the other House to include further amendments motivated by these two concerns. There has been criticism that I should allow one Bill to go ahead and start off again with another Bill. This is a fluid situation. There are developments internationally and in Europe. There are developments on asylum law on an international basis. It is not practical for me to bring in a succession of Bills. To some extent I am dealing with a moving target. I do not use that phrase dismissively. The situation is not static. Since my officials initiated the 2002 Bill, before the last election, many new things have developed, including draft legislative proposals being placed before the European Union Justice and Home Affairs Council. We, therefore, have to anticipate these developments. I say this because we enjoy a common travel area with the United Kingdom. As a consequence, if we fall behind or diverge from the international norms, or exclude ourselves from access to important legislative tools, we will become the place of last resort, because our laws will be the most inadequate.

We have to keep pace with international developments. Whereas I would love to spend many months considering every single section and paragraph of this Bill, and stand here in this House, if time and Senators' patience permitted, on this occasion, bearing in mind the requirements of the legislative calendar, if we were not to attempt to deal with these issues now, it would simply not be possible to persuade the Members of either House to give me sufficient time to re-address the issue with separate proceedings and separate Bills in the foreseeable future. It would be at least 18 months, probably, before I could get the train to leave the station and go to the other end of the line with further legislative changes.

Some people may be critical of Bills mutating as they go through the legislative process. That is provided for in the regulations and rules of both Houses. I am not ashamed of taking advantage of that, because what I am trying to do is have a safe, effective and fair law. In the context of moving targets, I have to keep up with the pace of events. I hope Members of this House and the other House share my view that Ireland must be at the forefront of having an effective law.

I want to emphasise one other point, which I have always made when I speak on these issues and I reiterate it here today, lest it be said that by not doing so I am contributing to a general climate of misunderstanding. The great majority of non-Irish people whom we encounter in our day-to-day lives, 80% or more, have nothing to do with the asylum process and are here as of right, as people invited to take part in the Irish economy. As anybody involved in trade and industry knows, they are playing a huge and valuable role in making this State prosperous. They [1720] have contributed hugely to that. Therefore, I deprecate the tendency to regard everyone who appears to be foreign or speaks with a foreign accent as part of an amorphous mass of refugees or asylum seekers. This is simply not the case. The notion that everyone who is, in effect, different is somehow a product of the asylum seeking process reflects a thought pattern which one frequently detects in public discourse and, unfortunately, sometimes even in media comment.

Non-nationals in Ireland are welcome. The people have extended a warm hand of welcome to tens of thousands of non-nationals who come to our shores and work in our economy. I deprecate anybody who somehow conflates this entirely predictable pattern of international migration with the abuse of the asylum process which occurs in some cases. The great majority of foreigners are welcome, here as of right and not in any sense abusing either our hospitality or legal system. On the contrary, they are making a valuable contribution, in many cases one which Irish people are insufficiently skilled or unwilling to make.

I emphasise to Senators that this legislation will not turn the country into fortress Ireland. The great majority of foreigners have no connection with its provisions. Its intention is to make our asylum and immigration law coherent and workable and ensure State resources are not misdirected by having a weak and ineffectual law.

Having an effective asylum law is a question of political and social morality. Annual expenditure on asylum seeking is estimated to be €340 million. It would be wrong of me to convey to the House other than the plain, unvarnished truth that the great majority on whom these sums of money are being spent are found in the end of a fair process not to be entitled to asylum protection. These funds could be spent in many other areas, including overseas development assistance or assistance to people living here, whether foreign or Irish, who need it.

Anybody who approaches this legislation from the moral high ground that anything which is restrictive of the right to abuse our asylum law is somehow draconian, repressive, ungiving and mean-minded should think again. If one considers the enormous amount of resources involved and bears in mind that it is the duty of the Minister for Justice, Equality and Law Reform and the Houses of the Oireachtas to have in place a workable law which distinguishes between those who are entitled and those who are not and deals efficiently with that distinction in order that it has factual consequences, the moral choice is to do what I am proposing in this House and have proposed in the other House, that is, to have a workable, up-to-date, modern, common sense system which separates the wheat from the chaff, if I may use that phrase, distinguishes between the abusive and genuine application, brings the genuine applicant to the top of the queue and carefully and fairly rejects the non-genuine applicant. That is all I am doing.

[1721]We have a moral duty to have our law as workable as possible. Some of those who have criticised the measures I have taken have ascended a moral pulpit which is rather rickety. When we are talking about resources of this nature, we should bear in mind that we are making moral choices consequent on the obligations which abuse of the asylum system has imposed upon us. Nobody can escape this and anybody who seeks to do so is making a mistake.

This legislation has nothing to do with inclusivity, multiculturalism or having a broad and inclusive view of society but everything to do with having a law which works and has the respect of the people. Nothing is more conducive to negative stereotypes and potentially racist undercurrents in our society than the apparent failure by the State to have a law which makes the distinctions proposed in the Bill. Nothing is more likely to engender dislike, smouldering resentment and all the tinder on which racism could easily be ignited than to fail to take measures such as those proposed.

I thank Senators for the patience they have shown in allowing me to explain the amendments made in the other House.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  The Minister has been on his feet explaining the amendments for more than 50 minutes. If so much time is required to explain their contents to the House, something is seriously wrong with the Minister's approach. There are 30 amendments running to 32 pages. This is not the first time the Minister has tried to ram through legislation as quickly as this. The practice of putting legislation through the back door in this manner is unacceptable. I remind the Minister that this is a democracy, for which we should have respect, and in a democracy a free debate must take place before any legislative change is enacted. It should also be given sufficient time, which the Minister has not done in this case.

The Minister's approach to dealing with the Bill is appalling. I accept this is important legislation and agree with many of the proposals in the amendments but let us have respect for them and give them the necessary time. To come to this or the other House with amendments of such importance and treat them in such a shoddy fashion is unacceptable in the Oireachtas.

I am disappointed the Minister chose to deal with legislation of this nature in such a fashion. I remind him, as others have done in the Dáil, that during his election campaign he compared the Taoiseach with the former Romanian dictator, Nicolai Ceaucescu, who would have been proud of the Minister's legislative prowess.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I have never made any such comparison.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  The explanatory memorandum was left on a table – I do not know when – to be picked up by Senators as they entered the [1722] Chamber. What benefit is it to us to receive such an important document when entering the House? It would have been helpful if we had been given it in time to study it. If the Minister believes he is fulfilling his obligations by providing us with information as we come through the door, he is not doing justice to himself or Members of the House. As I said, it is a shoddy way to deal with important legislation of this kind and shows a lack of respect for democracy.

I will deal briefly with a couple of the amendments. Amendment No. 26, a comprehensive proposal which runs to five pages, proposes to introduce a new section to allow the Garda Síochána or immigration officers to arrest and detain non-nationals who have been here illegally for more than three months.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  They must have been here for less than three months.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  If this severe proposal is enacted, the Minister will ethnically cleanse the country. The conferral of powers to carry out such functions on immigration officers must be questioned. Surely this is work for the Garda. Will the Minister explain the reason they are being conferred on immigration officers?

Section 5(3)(a) allows for people to be detained for a period of up to eight weeks prior to their removal from the State. The detention of innocent civilians without trial for such a period is contrary to any basic human rights and the Constitution. I ask the Minister to address this. It is excessive and could surely be reduced to a maximum of two weeks.

We are dealing with this Stage in a shabby manner. The debate should take the format of the Second Stage of a new Bill. If the Minister was unable to introduce these amendments at an earlier time, he should have incorporated them in new legislation. Too much has been added at the last minute, which is an unacceptable way of dealing with legislation.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  The Minster should be commended for significantly improving the content of the Bill with these amendments.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  Introduced at the last minute.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  The Minister cannot be blamed if Standing Orders of the House do not allow us to deal with the matter more effectively by considering each amendment in turn, as on Report Stage. It is for the House to regulate itself, a matter raised on the Order of Business. I hope the Cathaoirleach and members of the Committee on Procedure and Privileges will take this on board. Dealing with the amendments in this fashion is not the most satisfactory way to proceed. It is churlish and wrong to blame the Minister for this because it is for us to correct it. However, I concede the point made by Senator Terry that to deal [1723] with so many amendments in a composite manner is unsatisfactory.

A number of common sense amendments have been made to the Bill. In the past I have criticised the Department for its failure to address adequately the issue of asylum seeking. However, in view of the experience gained, we are perhaps learning more effective and efficient ways of dealing with it.

It is the Government's policy that genuine asylum seekers should, in their own interest, be dealt with as efficiently and expeditiously as possible, given best standard practices for processing. It is the only sensible approach to take. I have met some asylum seekers who been under stress while awaiting decisions. Much of this has arisen because so many are in the country seeking asylum status without foundation. It has significantly drained resources for the processing of applications.

The amendments were fully debated in the Dáil, presumably on Committee Stage.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  They were not.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  They were.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  Some of them were.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  They were debated over three days.

An Leas-Chathaoirleach:  Senator Jim Walsh, without interruption.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  They have strengthened the Bill. Improved processing of applications was required because people have an entitlement to expect that they will be dealt with in a speedy manner.

The Minister has made a valid point in that if 90% of applications are subsequently found to have no validity, there is a significant cost factor in maintaining a slow process of determination. I would welcome anything that can be done to accelerate it.

Some of the amendments are sensible. For example, the Minister may now designate categories of applications, including categorising those that are well or ill founded. Perhaps he will clarify if a sequence of ill founded applications must be processed on an individual basis or can they be dealt with in a manner that will expedite the processing of genuine applications, while maintaining fairness.

Previously, the Refugee Applications Commissioner had to wait for seven days after an interview to allow for further representations. However, given that little happened in this time period to alter decisions made, this provision has been abolished. This will assist the process.

Another amendment extends the period, from ten to 21 days, between court appearances seeking confirmation on grounds for detention of detained asylum seekers. This is a sensible arrangement. It is also a waste of time and [1724] resources to return prisoners to court at regular intervals to confirm their detention status.

There will be an accelerated process for designating categories. There are provisions to safeguard the rights of asylum seekers who will be given legal advice and provided with interpretative facilities to ensure they are well represented when making their application. The fact that the hearing will now occur in three or four, rather than ten or 20 days, will not diminish their rights. When they come to the country, they establish the grounds on which they are claiming asylum. In view of this, they should be in a position to present their case at short notice.

I am sure some in the civil liberties brigade will object to the fingerprinting provision. However, it is appalling that there should be certain child swapping activities among asylum seekers. Given the need to protect children, they should not be condoned or facilitated in any way. The fingerprinting of those under the age of 14 years, especially when done, as provided, in the presence of a guardian and approved by a senior member of the Garda Síochána or a person designated by the Minster, will avoid these activities, which are done with the intent of abusing the facilities for asylum seekers. Genuine asylum seekers would want to respect the facilities and procedures if they intend to become citizens of the State. They would be welcomed as such. Those without such regard would not make good citizens.

The term “manifestly unfounded” has been adopted as a principle, as has the welcome concept relating to those who come from a safe country of origin. The Minister dealt with the matter adequately in his address to the House.

Senator Terry raised the powers which have been given to immigration officers to allow them to return people to the country from which they came. It is common sense to provide this power. If people turn up who will not qualify in the opinion of the immigration officer, they will be returned. We should remind ourselves that we are on the north west periphery of Europe. Access to the island is difficult and options for travelling here are limited by comparison to those available in the rest of Europe. The first country to which an asylum seeker arrives must accept its responsibility rather than allowing us to assume the responsibilities it has in the first instance. The expectation that an applicant should seek refuge in the first country that can offer a safe haven should be encouraged.

If this was the case, it would alleviate the backlog here in the processing of people. Other factors besides costs, to which I referred earlier, come into play and these underline the need for an expeditious handling of applications. Like other towns and counties, the one in which I live plays its part in hosting many asylum seekers. We should bear in mind that these people are unemployed and have a great deal of time on their hands, which, unfortunately, can make them easy targets for unsavoury elements in the community [1725] who introduce them to fund-raising activities to supplement their wherewithal. This is not the road down which we should allow them to travel. The quicker the process is handled, the less likely these people are to be exposed to those unsavoury elements within some of our communities.

The amendments which have been included in the Bill by the Dáil serve to strengthen it. Genuine asylum seekers will benefit from the speeding up of a process from which they have nothing to fear. Those people who do not qualify will have that decision conveyed to them more quickly. They will be returned whence they came, which is the sensible approach to take.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  I welcome the Minister to the House and I thank him for his very clear explanation of the amendments before us. I am one of those who feels it would have been better if the Minister had rewritten the Bill – to see why, one needs only compare the size of the original Bill to the number of amendments. The House would have given the Minister the necessary time. We are very quick workers around here as the Leader has us on a very tight rein. We must leap along. The Minister says people must keep up with his pace which, I bet, we could have done.

I am irritated by the way these amendments have been brought before the House and I hope the Minister notes the dissatisfaction among Senators of the Government parties in this respect also. Over the last few weeks I have received a couple of lectures from the Minister and one from his Minister of State, Deputy Brian Lenihan, regarding the supremacy of Parliament. These lectures pertained to my proposal that remedies be provided before the courts for those whose social and economic rights are abused. The Minister and the Minister of State informed me that Parliament had to be supreme and that the courts could not be allowed to bring forward rights of that nature. The manner in which this Bill is being brought before the Seanad today is not respectful to the House and it fails to acknowledge the supremacy of Parliament.

We could easily have got through the Bill if the Minister felt it was urgent. I have no argument with a great deal of what is contained in the legislation and there is not a huge number of Senators interested in the question of immigration. Had he requested it, the Minister would have received co-operation from all sides to allow him to put the Bill through. Despite Senator Walsh's comments, the Bill has not been examined properly in the Dáil and the same is to be true of its passage through the Seanad. It is very difficult for us to explain to people why we have agreed to such legislation when we have had no opportunity to discuss it or to hear further arguments on points we wish to raise. It is regrettable and unhelpful to bring legislation before the Houses in this manner.

The asylum process is important and we do not wish to see it abused. However, we wish to ensure [1726] that the legislation we introduce is seen as fair by those seeking asylum. I am concerned by some of the amendments which have been made. The extension of the detention period from ten to 21 days in section 9 makes that period very long. A judge will not review the legality of the detention during that time. No other European state has legislation of this sort as it is not considered best practice.

Having had dealings with many asylum seekers, it is a matter of grave concern to me that after seeing a commissioner a person can be deported within four working days. Many asylum seekers have fled persecution and torture. I presume the Minister has visited the residence on the North Circular Road for those who have been tortured abroad and spoken to those who are dealing with them. It is difficult to get full stories even after people have been staying at the centre for some time. Some have already been granted refugee status which is why I am extremely anxious about the speed with which deportation can take place.

Elsewhere, the Bill provides that an interpreter will be provided if one can be found. Amendment 15(ii)(2) provides that the commissioner shall, where necessary and possible, conduct an interview with the assistance of an interpreter. Unless the commissioner speaks many languages, it will be extraordinarily difficult to get much sense from the interview process. Surely, it is essential to ensure that the asylum seeker knows what is happening. This provision is extremely lax.

Amendment No. 17 to section 11B which addresses credibility is also of concern. The Minister must have spoken to people who have attempted to obtain asylum status in which case he will certainly be aware that one of the first things they are told is to get rid of false documents. Provisions in this regard are made under sections 11A and 11E. It is unfair to decide a person is manifestly unworthy of asylum due to lack of documents given that those fleeing countries in which they are being persecuted are unlikely to go to the border with their own passport. The provisions of this section are patently ridiculous.

I am very concerned about section 11B(c) which refers to applicants who have provided a full and true explanation as to how they arrived in the State. They will not give that information because it might put the lives of their family and goodness knows who else in danger. I am dismayed that this and the credibility of their case will be taken into account rather than the merits of their case. I cannot see how these measures will help to prevent the abuse of the asylum procedure. All they will do is put people more in terror of getting themselves into such a mess that they will be thrown out of the country.

Section 5 makes good allowances for children, and rightly so. However, I am concerned, especially in view of the recent case where a woman gave birth on the high seas, that a heavily pregnant woman should be given some consideration and that there should be discussion of her [1727] case with the health board. In the most recent case, the good actions and training of the employees on the ferries, the fact that there was a doctor on board and the fact that the woman was normal and healthy meant that she and her child were safely delivered. However, when a woman is obviously pregnant, she should not just be put on the boat and sent back. There should be some discussions with the health authorities about her. I was sorry to see what happened in the recent case.

The new concept of safe third countries is being introduced into the Bill. This was not included in the Bill as initiated. Countries which might be safe for me and the Minister might not be safe for other people. Sending people back to other Dublin Convention countries might not mean they will be deported to what the Minister and I would consider a safe third country. I have spoken about this issue previously in the House and given a number of examples. Some years ago, for example, I occasionally appealed on behalf of doctors from Iraq. One of them, a surgeon, had fled the Iraqi army because he was being asked to amputate the limbs of deserters. I was told that Iraq was a safe country to which he could return. Shortly afterwards, however, half of the world had to invade Iraq because it was so dreadful and had weapons of mass destruction which could be shot at us in 45 minutes.

Another case involved a woman, a midwife, from Nigeria, an area where sharia law is enforced. She had spoken out against female genital mutilation. I got as far as the appeals commission with her and was told it was perfectly safe for her to return to Nigeria, yet we are encouraged to write to the Nigerian ambassador to protest at the stoning to death of a young woman who has had a child outside matrimony. I do not know how safe it will be for a woman who spoke against female genital mutilation to return to Nigeria. She fled despite having a good job there. She has not been able to work in this country even though we are desperate to recruit midwives. She was at sister tutor level and I have attended lectures she has given.

What is a safe country for one person will not be for another. Look at the United States of America. If the Minister goes there, he will not be put in Guantanamo Bay, although I do not know about me. What happens in the case of somebody from Pakistan or Afghanistan seeking refugee status here? Would it be wise to send them back? How safe would those countries be for them? The Minister, alone, makes that decision, with a little assistance from his friend, the Minister for Foreign Affairs. That is not a good idea.

We should have debated this legislation in greater detail because it might have been possible to omit some of the provisions. It would have made the legislation easier to understand for the public. I am glad the Minister said foreigners are welcome here. If they were not, the health service [1728] would collapse and, possibly, much of the retail and hotel trade. We need to treat foreigners in this country well but this Bill does not appear to accord much respect to those who are in most need of being treated well in this country.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I am unhappy with the way this legislation has been dealt with by the Minister and the Government. The Minister is correct to point out that legislation is always changing. We are not criticising that but we are criticising the level of change to the original legislation and the speed with which those changes were made.

The changes limit the input of Members of the Oireachtas and interest groups on this issue. This legislation impacts badly on the role of Senators. We did a great deal of work on the Bill when it was initiated here. The debate took place over a number of days and amendments were made. Now a huge number of additional amendments have been made and we have had no input into that process and only a limited debate on them. The Human Rights Commission described the additional amendments as amounting to virtually new legislation. Various provisions were removed from the Bill in the Dáil, because of the work permits legislation, while 22 pages of amendments were added on Committee Stage with a further ten pages of amendments added on Report Stage yesterday. Again, the opportunity to debate them in the Dáil was limited. Various interest groups and bodies, such as the Irish Refugee Council, contributed to this legislation on Committee Stage in the Seanad but they had no opportunity to do so with regard to the new substantial amendments.

On a positive note, I welcome the fact that changes were made on foot of Labour Party proposals in the Seanad and the Dáil. The Minister criticised the Labour Party in various fora and accused it of somehow filibustering this legislation. He should acknowledge, however, that the Labour Party was most proactive in terms of trying to improve the legislation and acted in good faith. In accepting a number of our party's amendments in both Houses, the Minister acknowledged that fact but it should be acknowledged today too. The time limits for applications, for example, were extended on foot of my suggestion, even if they were not extended as much as I would have wished. The Labour Party raised the issue first in the Seanad.

The Labour Party still has many concerns about the legislation. I have raised a number of them, including the huge responsibility these new provisions impose on carriers, including non-commercial carriers. We also expressed fear that the new provisions will deter genuine asylum seekers from seeking asylum or endanger them because they will seek non-legitimate ways of getting access to this country. They might not even get here and we should not wish that to happen. I am also critical of the provisions whereby applications can be deemed withdrawn and that there is no appeal process, save through the Minister. [1729] The applications can be deemed withdrawn despite the difficult deadlines that must be complied with in the application procedures. I have serious concerns about the provisions in relation to safe countries and the fast tracking procedures. I also have problems with some of the provisions in the new work permit legislation.

The overall approach of the Government in this legislation is negative, as can be seen in the legislation's negative provisions and framework. It reflects the way the Government deals with the immigration issue. It is a crisis management approach. This can be seen in the way the legislation has been handled, in the way whole rafts of amendments were introduced at various stages and bits taken out of the legislation, and in the urgency with which the legislation on work permits was dealt with. That is a crisis management approach which is required because of the negative framework in place. I urge the Government to reconsider its approach and introduce a more comprehensive and positive overall framework for immigration legislation which puts economic immigration on a proper footing, that treats asylum seekers fairly and ensures they are protected and encouraged to seek asylum here and that also ensures efficiency and prevents abuse of the immigration system.

The Labour Party has such a comprehensive immigration policy based on a green card system which was broadly welcomed by interested groups, including the Refugee Council, when we launched it a couple of years ago. Such legislation would tackle many of the current abuses. It would put a proper economic immigration system in place, there would be less reason for legitimate applicants to abuse the system, and the Government could become heavy-handed with those abusing the system. However, many of those who currently abuse it do so because they have no choice, given that the system is so bad in terms of their coming to this country when they have good reasons for coming here.

The Minister has hinted in the media that he is examining the Labour Party's idea of a green card system. I urge him to do so. I reiterate that I am very unhappy with the way the legislation has been presented to the Seanad. It treats the House unfairly. For that reason, I oppose the legislation.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. O'Dea): Information on Willie O'Dea  Zoom on Willie O'Dea  I thank all Senators for their contributions to this very important legislation. In relation to a few points that have been made, the explanatory memorandum, prepared by officials in the Department of Justice Equality and Law Reform, has been on the Department's website since 23 June. Since then it has been available for scrutiny by Members of both Houses, interest groups and all members of the public.

Senator Terry appears to have misunderstood the effect of amendment No. 7 which merely restates, with some enhancements, the present law regarding the return of people who have been [1730] refused leave to land and are deemed to have been so refused. She might have acknowledged that the new provision rules out the possibility under present law of detaining under 18s. Immigration officers, mainly members of the Garda Síochána, have always had these powers and the new provisions extend them to all gardaí, not the other way around, as she seemed to suggest.

Senator Jim Walsh raised the question of combining unfounded applications for the purpose of processing. I stress that every applicant will obtain an individual consideration of his or her application on its merits. That is as it should be. However, central to the new provision is the introduction of accelerators to speed up the processing of abusive claims. What we are dealing with is prioritisation, provision of shorter periods for appeals and generally for streamlining of procedures and documentation.

Senator Henry raised the question of interpretation. The position is that interpretation will always be provided, where practicable and possible, having regard to the fact that for certain languages there is a limited number of interpreters available within the State. However, where no interpretation is available immediately in the State, UK interpreters have been used or, in rare cases, applicants have had to wait until interpreters have become available.

Senator Henry also mentioned the situation in Nigeria which has a very brutal legal system which involves stoning people to death for adultery. A number of sentences have been passed. I do not know to what extent sentences have been carried out. It is my understanding this only applies in the Muslim part of Nigeria and that people have the option of moving to the other part of country rather than making the 3,000 mile trek to Ireland.

Senator Tuffy raised the question of the Labour Party's input into the legislation. The Minister acknowledged, both in the Dáil and the Seanad, that the Labour Party had helped to improve the shape of the legislation. However, what the Senator said rather defeats her other argument because the Labour Party made a number of considered amendments, suggestions and proposals, some of which the Government accepted. The Labour Party seemed to understand this very well, which implies there was ample time to study the legislation quite closely and get a good grasp of it. In the Dáil Deputy Costello objected to the first amendment in the name of the Minister. He said he did not have time to study it, yet he was able to table 30 amendments.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  That is because we work so hard.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  There was obviously plenty of time to consider it.

I do not want to be too contentious but there is a certain level of hypocrisy. I have attended public meetings in my constituency and elsewhere, not necessarily about immigration, where [1731] the question of immigration arose from the floor. The general tone at the meetings was critical of the Government for not doing enough to control illegal immigration. It was pointed out, not unreasonably, that we were spending about €350 million a year on immigration and that 90% of cases were unfounded. Some are patently unfounded, yet it is costing the taxpayer €350 million a year to operate the system. I have been accompanied at those meetings by elected members of Senator Tuffy's party, and they are the first to agree with the crowds that the Government is not doing enough and should be doing more. We are doing more and thank everybody who is supporting us.

The views of various organisations have been mentioned. I know and respect those organisations. I have friends within them. I believe I speak for the vast majority of the Irish public, supporters of all political parties, when I say there is a very strong strand of public opinion that we need to do something to control the flow of illegal immigration. We are doing this. Second, even the [1732] human rights organisations agree that we should do something that would enable us to dispose quickly of manifestly unfounded applications and deal properly with those who have a genuine case to be considered refugees within the terms of the Geneva Convention.

Senator Tuffy's suggestion that people make false asylum claims because they have no other choice is based on a fallacy. We have means for those who immigrate into Ireland on economic grounds to do so legally. Her line would encourage people who do not meet the legal requirements to tell lies in order to circumvent them. This damages the interests of those who need the protection of the State as well as the interests of the State and Irish society as a whole.

I thank everybody who commented on the legislation in the Seanad and the Dáil. I thank those who have made constructive suggestions which the Government has been able to take on board. This legislation will bring about enormous improvements to the processing of asylum applications.

Question put.

Bohan, Eddie.
Brady, Cyprian.
Brennan, Michael.
Callanan, Peter.
Dardis, John.
Dooley, Timmy.
Feeney, Geraldine.
Fitzgerald, Liam.
Glynn, Camillus.
Hanafin, John.
Kenneally, Brendan.
Kett, Tony.
Leyden, Terry.
MacSharry, Marc.
Minihan, John.
Mooney, Paschal C.
Morrissey, Tom.
Moylan, Pat.
O'Brien, Francis.
Ó Murchú, Labhrás.
Ormonde, Ann.
Phelan, Kieran.
Quinn, Feargal.
Walsh, Kate.
White, Mary M.
Wilson, Diarmuid.

Bannon, James.
Bradford, Paul.
Browne, Fergal.
Burke, Paddy.
Burke, Ulick.
Feighan, Frank.
Finucane, Michael.
Hayes, Brian.
Henry, Mary.
Higgins, Jim.
McDowell, Derek.
McHugh, Joe.
Phelan, John.
Ryan, Brendan.
Terry, Sheila.
Tuffy, Joanna.

Question declared carried.

Question put: “That the Bill do now pass.”

Bohan, Eddie.
Brady, Cyprian.
Brennan, Michael.
Callanan, Peter.
Dardis, John.
Dooley, Timmy.
Feeney, Geraldine.
Fitzgerald, Liam.
Glynn, Camillus.
Hanafin, John.
Kenneally, Brendan.
Kett, Tony.
Leyden, Terry.
MacSharry, Marc.
Minihan, John.
Mooney, Paschal C.
Morrissey, Tom.
Moylan, Pat.
O'Brien, Francis.
Ó Murchú, Labhrás.
Ormonde, Ann.
Phelan, Kieran.
Quinn, Feargal.
Walsh, Kate.
White, Mary M.
Wilson, Diarmuid.
[1733]

Bannon, James.
Bradford, Paul.
Browne, Fergal.
Burke, Paddy.
Burke, Ulick.
Feighan, Frank.
Finucane, Michael.
Hayes, Brian.
[1734]Henry, Mary.
Higgins, Jim.
McDowell, Derek.
McHugh, Joe.
Phelan, John.
Ryan, Brendan.
Terry, Sheila.
Tuffy, Joanna.

Question declared carried.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  When is it proposed to sit again?

Mr. Moylan: Information on Pat Moylan  Zoom on Pat Moylan  Tomorrow at 10.30 a.m.


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