Oireachtas Joint and Select Committees
Wednesday, 20 February 2013
Joint Oireachtas Committee on Justice, Defence and Equality
Readmission Agreements: Motions
We welcome the Minister of State and her officials to the meeting. The purpose of today's meeting is to consider the motions re the proposal that Dáil and Seanad Éireann approve the exercise by the State of the option to accept readmission agreements between the European Community and the Russian Federation, Georgia, Bosnia, Slovenia, the former Yugoslav Republic of Macedonia, Albania, China, Sri Lanka, Serbia, Moldova, Montenegro and Pakistan. Briefings have been circulated to members.
The formula for today's meeting is that there will be a briefing from the Minister of State followed by a question and answer session. I invite the Minister of State to brief the committee on the motions.
I thank the committee for the opportunity to lay out what is an exercise in diplomacy in terms of ensuring that we are not only active, good members of the EU but that we are perceived to be so as well. On behalf of my colleague, the Minister for Justice and Equality and Defence, Deputy Shatter, I thank the committee for making time today to discuss the motions concerning the proposed exercise of Ireland's option to participate in a total of 11 European readmission agreements. These agreements are with the Governments of Macao, Sri Lanka, Albania, Russia, the Former Yugoslav Republic of Macedonia, Bosnia, Montenegro, Serbia, Moldova, Pakistan and Georgia.
Ireland has always been broadly supportive of common action at a European level with regard to immigration. In particular, we have supported the European pact on asylum and migration and the Stockholm programme, together with the many Council conclusions building towards a common position on immigration-related issues, including return and readmission. Clearly, for geographical and other reasons, some EU-level measures are of more relevance to Ireland than others.
In the area of freedom, justice and security, including immigration, Ireland is not automatically bound by the various EU measures that are in force. This is by virtue of the Protocol to the Treaty on the European Union and the Treaty on the Functioning of the European Union on the special position of the United Kingdom and Ireland. It is a matter of determining on a case by case basis the measures in which it is in Ireland’s interest to participate. In the field of immigration and asylum we must of course have regard in any decision to the potential impact on the common travel area with the UK. It is, however, the stated intention of the Government to participate in European-related measures to the fullest extent possible. The motions being discussed today provide an opportunity to demonstrate our commitment to European solidarity and to participate as fully as possible in EU instruments. It is also timely that during our Presidency we can, if the Oireachtas so agrees, exercise our option under the protocol in a positive manner in respect of a significant number of individual measures.
The removal of illegally staying third country nationals from the territory of the European Union has been a pressing political priority for a number of years. Readmission agreements are an important aspect of dealing with illegal migration and are one of the oldest instruments employed by member states in this regard. The first such agreements date back to the 1950s and 1960s. Competence in the area of migration was conferred on the European Community under the 1997 treaty. During the lead-in to European enlargement it became increasingly obvious that irregular migration and organised crime could not be prevented through stricter visa regulations alone. A new policy on readmission emerged and moved to the centre of the European Union’s strategy to tackle illegal migration. This was reflected in the first multi-annual programme in the area of freedom, justice and security, the Tampere programme. The Council established a mandate and approval procedure for the negotiation of readmission agreements with third countries on a case-by-case basis. Candidate counties were identified on the basis of country action plans drawn up by the high-level working group on asylum and migration. The Council then gave the Commission a mandate to invite the third country concerned to negotiate a readmission agreement and, following successful negotiations, these agreements could be adopted under Title IV, now Title V, and the international agreement provisions of the treaties.
Several rounds of negotiating mandates were agreed by the Council, identifying 20 third countries altogether. To date, Ireland has not participated in any of these agreements, with the exception of the agreement with Hong Kong. The first mandates were for negotiations with Russia, Sri Lanka, Morocco and Pakistan in 2000, all of which have since been concluded. The next round was in 2001 with Macao and Hong Kong, and these negotiations have also been concluded. In 2002 mandates were agreed for negotiations with Albania, Ukraine, Algeria, China and Turkey, of which the agreements with Albania and Ukraine have been concluded. In 2006 mandates were adopted for negotiations with Bosnia, Macedonia, Moldova, Montenegro and Serbia, all of which have since been adopted. In 2008 a negotiating mandate was adopted for Georgia and the agreement has since been concluded. In 2009 a negotiating mandate with Cape Verde was agreed and has yet to be concluded. In 2011 negotiating mandates with Armenia and Azerbaijan were agreed, which are also yet to be concluded. This brings to 20 the number of countries for which the Commission has been given a mandate to negotiate readmission agreements. Of the 20 negotiating mandates, 13 agreements have been concluded and are now in force.
More recently, in an effort to reinvigorate readmission policy, Council conclusions were adopted on defining the European strategy on readmission in June 2011. These conclusions recommended that future agreements should focus on those countries causing the greatest migratory pressures to the EU and geographical priorities should shift towards the main countries of origin, which should be identified on a regular basis. Following on from these conclusions, the action plan on migratory pressure, which was adopted in April 2012, has a specific strategic priority focused on strengthening co-operation with third countries. Among other things, this will include the identification of new candidate countries for readmission agreements, examining EU and member states' relations with candidate countries, determining the content of proportionate and tailor-made incentives for each candidate country and clarifying certain standard features of agreements, such as accelerated procedures, transit operations and the obligation to admit third country nationals.
While 11 separate agreements are under consideration today, I do not propose to describe them individually as they are all very similar in character. In general terms, however, readmission agreements concern reciprocal procedures agreed for the return of persons who do not have authority to reside on the territory of one party to the territory of the other party. European readmission agreements will commonly contain provisions relating to the obligation on the third country or the Community to readmit persons to its territory, arrangements for the transit of persons being returned elsewhere through its territory, standards of proof of the nationality of the returnee, special provisions on data protection, time limits for responding to requests for the provision of travel documents and special provisions on responsibility for bearing the cost of returns. What usually marks European readmission agreements as different to bilateral agreements negotiated by individual member states is the obligation on receiving states to admit third country nationals. The European Union has been particularly active in promoting the third country national clause as a new norm in international law following the very limited success member states have enjoyed in imposing such an obligation bilaterally with third countries. It is the usual practice for the EU to negotiate readmission agreements at the same time as negotiating visa facilitation measures, particularly with western Balkan countries. This is generally considered the quid pro quofor agreeing to readmission. However, since the visa facilitation measures relate only to the Schengen zone, they have no bearing on Ireland whatsoever.
What is being sought today is approval of motions for Ireland to exercise the discretion in the protocol to the treaties to opt to participate in European readmission agreements with the Governments of Macao, Sri Lanka, Albania, Russia, Former Yugoslav Republic of Macedonia, Bosnia, Montenegro, Serbia, Moldova, Pakistan and Georgia. It is important to see Ireland’s participation in these agreements in their wider context. Ireland already has a strong reputation for effective return operations and we have generally received good co-operation from the countries to which we have returned persons in the past. We have also led several joint operations organised by the European external border agency, FRONTEX, and have actively participated in many others in recent years. This has all been achieved without access to formal readmission agreements with any of the third countries concerned.
Opting in to these agreements will not have a transformative effect on Irish immigration policy or operations. Many of the countries involved have limited numbers of citizens in Ireland and fewer still in an illegal situation. It is, however, an important signal of solidarity with our European partners. On behalf of the Minister I hope the joint committee can support the exercise of Ireland’s option to participate in these readmission agreements.
This is a serious matter for the committee to consider. As the Minister of State will be aware, we have an opt-out provision because the people voted for protocols on this matter in a referendum. It goes to the core of our sovereignty that we establish our own human rights criteria.
Of course, there will be various analyses of regimes. We might, for example, disapprove of the illegal settlements in the Occupied Territories, but other countries in Europe might have a different view of them. Sadly, we cannot adopt a collegiate position on human rights matters in the world. For example, in Sri Lanka the return of Tamils to the Sinhalese regime could prove very troublesome. Similarly, there are issues in Bosnia and we are all aware of the horrors that took place there. Also, there are ongoing concerns about the situation in Serbia and the destabilisation of Bosnia-Herzegovina, an issue we dealt with in the Joint Committee on Foreign Affairs. There are considerable human rights concerns in Pakistan.
I propose that the committee not make a decision on this issue until we have received submissions from Amnesty International and NGOs in Ireland dealing with the issue of immigration. I propose that we consider undertaking a critical analysis of this proposal and ask that we do not decide on it until we have had a chance to consider alternative points of view. We are being asked to opt into a wide range of agreements at European level. This is a serious proposal which needs to be considered. The people asked us to seek an opt-out and agreed to this in a referendum. Therefore, while I appreciate the Minister of State's presentation, I ask that the committee not make a decision until we have received feedback from human rights organisations and NGOs here.
I take on board what the Deputy has said, but the bottom line is that because we have left our options open, we can either opt in or out on a case-by-case basis. That is the reason the proposal is framed in the way it is. Ireland will apply all of the protections relating to human rights, whether individuals are here legally or illegally, or whether they are applying for residency or asylum. The proposal has nothing to do with this. It provides that if having exhausted the process, it is found a person has no legal right to stay in the State, we will have the option of sending him or her back to his or her country of origin, or, in the event that any country finds an Irish person has overstayed beyond the duration of his or her visa or is in that country illegally, we will accept his or her return to Ireland. This is a two-way street, but the agreement only applies after exhausting all of the possible avenues available. As the Deputy knows, there are extensive avenues available. Therefore, I do not see our agreement as having the impact he suggests. I understand his concerns perfectly, but that is not what this is about.
To clarify, we are being asked to opt in to agreements with all of the states mentioned. Therefore, it is not a choice on whether we opt-in or out. Is it not correct to say we are being asked to opt in? Perhaps I have misunderstood, but what I see is that Ireland has an option, as agreed to in a referendum, in these matters. Therefore, as matters stand, we have a choice whether to opt in or out. However, the Government is proposing that we opt in to agreements with all of the states mentioned. Is that correct?
Even if we agree to this proposal today, we will still not be tied to sending anyone back to any of the countries mentioned, unless we are convinced all of the procedures and avenues available to that person have been exhausted. It will very much be dealt with on a case-by-case basis. It is not as if someone who appears suddenly from Sri Lanka illegally will automatically be sent back. That is not what will happen. Each case will be examined and we will apply all of the jurisprudence and human rights protections to that person.
To be clear, is it correct that we do not have agreements with all of the countries mentioned? I have named some about which I have concerns, as have others. The reason I am asking for further deliberation is we have been asked to opt in to agreements, subject to all of the assurances the Minister of State has given. This is a big decision and we need all of the opinions on the table.
The agreements are in place at European level; therefore, we are becoming participants in European-wide agreements already in place. I am in the hands of the committee and have no option but to take the direction of the Chair. I do not see the proposal holding the dangers the Deputy envisages. We have an extensive and wide-ranging mechanism with regard to the way in which people can apply to stay in the country.
The officials have informed me of a point I should have made. As matters stand, we can return such persons to their own countries, even without this formal mechanism in place. This type of European-wide approach is important because in some areas we have high standards in protecting people, but in other countries in the European Union there are even higher standards. Such European-wide co-operation is very important.
Yes. We demanded in the treaties that our sovereignty be protected and that we have the right to make our own decisions and laws. That was important. While some of our standards are lower, others are higher. The European-wide construct in terms of migration and immigration issues is very important to us. We cannot do this on our own, as everybody agrees. Our relationship with the United Kingdom is unique and we have been allowed to preserve it. We can do this without formally opting into the agreements. However, there is a degree of protection for us in the European Union.
I was also going to seek the clarification sought by Deputy Pádraig MacLochlainn, as I understand his point. Having received clarification, the agreement strengthens the process in terms of being sent from the country. As the Minister of State said, every avenue will be looked at before someone is sent from the country, whereas now an individual can be sent from it anyway. Therefore, the agreement strengthens their position. Who in Ireland will be responsible for readmissions?
I am not sure whether I made that absolutely clear when I was speaking. These agreements will not have any impact on our policies as they are being administered at present. I think they will provide a degree of solidarity. No country can do this on its own. One of the good things about being a member of the EU is that one participates in a common policy in certain areas. I would not agree that we should have common policies on everything, but it is good to have common policy in certain areas. It is important that we have such a policy in the areas of migration and illegal immigration.
They have a monitoring role. I think we would all be concerned about how people are treated, which was the subject of some earlier questions. The committees are responsible for ensuring that a person's civil, legal and human rights are protected during the process. I reiterate that this sort of co-operation will lead to greater protection. Of course there are countries that we all have concerns about. Nevertheless, I think this will enhance the type of protection of the individual that is provided within the EU on a case-by-case basis.
In 2011, the Commission proposed that non-governmental agencies and experts from member states should be involved in these joint readmission committees. Has that happened? What is the story here in Ireland?
Like the Chairman and every other member of this committee who has been involved in this area over the years, I know that non-governmental agencies probably have information that the State can never obtain. That is why they are important. While they are not yet involved, the Commission is looking at ways of ensuring they will be involved. Given that they are able to communicate with people in a way that the State will never be able to do, as I have said, it is vital for them to be involved. We all know that the official version of a story does not always constitute the entire truth. The truth is sometimes more grim than what is presented. Those involved in the non-governmental area are sometimes the only people who are able to achieve the necessary level of trust. The commission is exploring ways of ensuring these agencies will be involved.
No, not yet. The difficulty is that the agreement with Georgia is the only one to have been concluded to date. That type of project cannot be put in place until the agreements are finally concluded and we opt into them.
The groups mentioned by the Deputy can make a significant contribution in this area. We do not have to wait for these agreements to be concluded for that to happen. They have been making a substantial contribution for as long as I can remember. They have always been to the fore in examining how people are treated, advising people and guiding them through this complicated and detailed process. I could not possibly say they should all be involved, but I would support any recommendation to the effect that they should be asked for their views on issues of this nature.
This committee might have to revisit some of the issues that have arisen as we have considered these agreements. Under an order of the Dáil, we are obliged to report not later than 26 February that we have considered these motions. I understand the Dáil will make a formal decision on what to do. Our job is to debate them as we have done. If a vote is to be taken on them, it will be taken in the Dáil. I think we have completed our consideration of them for today. We have given them a good airing.