Mr. Liam Herrick:

I thank the committee for the opportunity to address it today. By 12 June 2026, Ireland must implement the EU migration and asylum pact in a manner consistent with EU and human rights law. Having reviewed the general scheme, as it is available at this point in time, we are concerned that Ireland will not do so. A major problem is ambiguity around the Government's intentions, due to incompleteness and lack of clarity in the general scheme of the Bill. This poses a fundamental challenge not just to the Irish Human Rights and Equality Commission and various experts who could contribute meaningfully to pre-legislative scrutiny of the Bill, but it also of course impacts on the ability of Oireachtas Members to effectively scrutinise what is fundamentally important legislation.

As a general observation, our initial view is that the Bill goes further than the pact requires in restricting rights and freedoms, and not as far as the pact requires to protect them. This is particularly evident in the way the Bill treats vulnerable people including victims of trafficking, disabled people, and children.

Two issues potentially affect the rights of all international applicants. The first, which has just been referred to, is the question of access to justice. The Bill provides that, shortly after arrival in Ireland, applicants will get legal counselling before their first instance interview, and not legal advice and representation, as currently prevails. The Bill does not define legal counselling. We do not know what it is but we do know what it is not. It is not legal advice. This is a backwards step from the current situation. Ireland has opted for a minimalist approach here without clearly explaining why. People seeking international protection, many of whom are vulnerable and traumatised, will have to navigate the critical first stage of the process, and the committee has just heard what that looks like to an individual person, without the support and protection of independent and confidential legal advice. The Bill says that legal counsellors will be engaged but it is not clear who they will be. We are clear that legal counselling cannot be provided by solicitors or barristers because of their professional codes of ethics, which require them to provide only confidential advice.

In our view, this approach raises grave questions about access to justice and the right to an effective remedy. We call on the Government to provide legal advice at first instance, as it does currently, and as the pact permits it to do. There is no requirement that Ireland add an additional layer of undefined legal services. The State must demonstrate, if it is to persist with this approach of legal counselling, what necessary expertise will be required, how these counsellors will effectively support applicants and how they might be regulated. None of these questions have been answered to date.

The second issue which affects all persons within the process is that the pact requires an independent monitoring mechanism, IMM, which we understand will be achieved through a chief inspector of border procedures. Under the pact, the IMM should meet the standards that have been set out in detail by the European Union Agency for Fundamental Rights, which earlier this year published a detailed set of requirements of how IMMs at the national level should be independent from Government, empowered to investigate all allegations of rights violations, and adequately resourced in an independent manner. In contrast, the general scheme provides for a chief inspector who is appointed by, funded by and who can be removed by the Minister for justice. We understand that the chief inspector and staff will not be warranted or empowered to conduct investigations into instances of death or serious harm. In our view, therefore, the chief inspector cannot be considered a credible independent monitoring mechanism as was recommended and prescribed by the Fundamental Rights Agency.

Based on those concerns, the Irish Human Rights and Equality Commission is currently considering whether it is appropriate for us to sit on the proposed advisory board and I listened with great interest to our colleagues in Tusla in the same vein.

These are only two out of our many concerns about the Bill. Others include detention, age assessments, vulnerability assessments and the treatment of victims of trafficking. If the Bill is published in line with the general scheme and enacted in this form, the system that will prevail will greatly undermine fundamental rights and create significant legal uncertainties. We welcome the opportunity to discuss these and other important issues with committee members later.