Dermot Ahern (Louth, Fianna Fail)

We need to distinguish between the type of decision being made in a protection case and those that arise in respect of an immigration permission. Protection matters are governed by our international commitments and are determined by reference to international standards in a rigorous manner. This is as it must be, given the issues involved. On the other hand, immigration decisions are at the discretion of the State. The State sets out how it proposes to dispense its discretion in legislation. Fundamentally, immigration is not a right. Rather, it is granted by the State. Deputies drew attention to the fact that the UK has a tribunal hearing immigration and asylum cases. However, this is not the best fit for Ireland.

A number of Deputies wanted to retain the section 3 process. They asserted that the Bill fails to reproduce section 3 of the Immigration Act 1999 dealing with the process leading to a deportation order. As the Bill introduces a new removals process, it does not reproduce section 3 verbatim, nor does it need to. However, it is not the case that the protections in section 3 have been discarded or are somehow absent from the Bill. Section 3 provides a process whereby a person whose removal from the State is in contemplation must be given notice of the intention to remove and an opportunity to submit representations to the Minister as to why that course of action should not be taken.

As far as the process goes, it is self-evidently fair to the person involved. However, since it must be used not only for the removal of persons who have the residence permission but also for people who are already unlawfully present in the State, it is to that extent inefficient and cumbersome. It is important to point out that the length of any permission granted under the Bill will typically be set at the point of granting of that permission. In each case, the person knows why the permission is given, for how long it will be and whether it can be extended. Many thousands of such permissions are given under the current system each year. In most cases, the person observed the conditions by leaving the State on or before the permission expired. The overarching prohibition on refoulement in section 58 must inform the decision not to renew a permission or to revoke that permission.

To dispel any misgiving that may persist, I wish to spell out exactly how the Bill offers further procedural safeguards designed to meet the exigencies of every circumstance. In the Bill, an exact mirror of the section 3 process appears at section 52, which deals with those whose residence permissions are being considered for revocation. An important feature of this process is that, until it is concluded, the person's presence in the State remains lawful. The obligation to leave the State and with it the risk of being detained and removed against one's will do not arise until the final outcome of the process has been notified to the person. Even then, for certain people who have been lawfully living in Ireland for longer than five years, there is a three-month grace period in which they can wind up their affairs.

The section 52 process applies to anyone with a long-term residence permission or an ordinary residence permission that is expressed to be renewable. For people who are in Ireland on renewable residence permissions and where it is proposed at renewal time not to renew their permissions, sections 40, 53 and 54 of the Bill set out a process equivalent to section 3 of the 1999 Act. The person is notified of the decision not to renew the permission and the reasons for that proposal. He or she is given an opportunity to seek a review of the decision. The person's presence in the State is deemed to be lawful until a final decision on the review is notified. The obligation to leave the State does not arise until that point is reached, so the person is not exposed and does not expose himself or herself to any risk of being detained for removal until the process has been exhausted.

For people who have been given a finite entry permission or a residence permission, section 50 sets out a process equivalent to section 3 of the 1999 Act. The person is notified of the decision to revoke the permission and the reasons for that revocation and given an opportunity to seek a review of the decision. Under section 50(5), the person's presence in the State is deemed to be lawful until the final decision on the review is notified. Once again, the obligation to leave the State does not arise until that point has been reached, so the person is not exposed and does not expose himself or herself to any risk of being detained for removal.

The current process under section 3 of the 1999 Act applies to everybody who is at risk of being removed from the State, including those who have applied for asylum and whose claims have been rejected by the independent first insistance and appeals procedures. The section 3 process incorporates an examination in any case where it is claimed of whether the person is entitled to subsidiary protection in the State, as well as giving the person an opportunity to offer reasons related to matters other than the protection issues as to why they should be allowed remain in the State. All these matters, both protection related and otherwise, will be examined within the single process set up by this Bill. There will be no need at the conclusion of the process for an extra layer of procedure that the existing section 3 process involves. I reiterate the entire rationale of the Bill is to bring in a single procedure for decision making. Those who emerge from the protection process will do so with a complete answer to all their wishes to remain in the State. That is the effect of Part 7 of the Bill.

Where a person has entered the State clandestinely, having made no attempt to seek permission or have any contact with the immigration authorities of the State, that person knows what is the position. Staying in the State covertly is unlawful and while the individual may not be fully aware in precise detail of Irish law on this point, it can come as no surprise when the authorities find out and put in train steps to remove that person forthwith. Part 6 of the Bill deals with removal in that respect. In addition to more notice requirements, provision is made under sections 61 and 62 for the imposition by the immigration officer of a residence and reporting requirement on a foreign national instead of that person being arrested or detained. For this category of foreign national there is neither need nor justification for an equivalent process to section 3. There is, of course, by way of safeguard built into the Bill in regard to all potential removals the protection against refoulement. This is backed up in a practical way by the provisions of section 81 which ensure that an expression of fear by a person, whether lawfully or unlawfully present in the State, must be treated as a potential protection application. This is yet another protection in section 81 which is built into the Bill.

Therefore, I believe we have a proper balance between the forthright power to ensure that a person unashamedly present unlawfully in the State observes the obligation to leave on the one hand, and, on the other, a duty to listen to and act on any indication from that person, however expressed, that removal from the State would be and would constitute a refoulement.

Some debate has taken place on the position of a potential victim of trafficking in that situation. The position is, to some extent, analogous to that of a potential protection claimant. If, when the person comes to immigration authority notice, there is an indication, whether from that person or otherwise, that he or she is a victim of trafficking then in the normal way a garda has a duty to follow up that indication that the offence has been or is being committed. The provisions of section 139 of the Bill will then activate themselves in those appropriate circumstances.

Arguments are sought to be made that there should be a last-chance equivalent to the current section 3 process for all or some of the cases I have outlined but no argument has been made or can rationally be made in law or in equity that we would require or justify such a process in any circumstance. For those who have already been through one of the processes in Parts 4 or 7 of the Bill there is nothing more to be looked at. For those who are unlawfully in the State, either as over-stayers or clandestine entrants, the proper course is to observe the personal obligation they have brought upon themselves by their actions to leave the State. If there is any potential refoulement or protection issues, I reiterate that a safeguard is present in sections 58 and 81.

Deputy Durkan argued that asylum seekers should be treated in exactly the same way as others seeking to migrate to Ireland for economic purposes. I emphatically assure the House that to do so would be to encourage and support misuse of the protection process, and that I have no intention of equating the two. We have a process for those seeking to migrate to Ireland for work or other economic purposes. I do not claim the process is a perfect one and I acknowledge there are serious inadequacies in it. However, the processes are there and are being availed of by many thousands of people who wish to migrate here from outside the European Union or the European Economic Area. The asylum process is there for people who have a genuine fear of persecution in their home territories and who need the protection of this State. One cannot equate the two, as Deputy Durkan endeavoured to do. Arguments that asylum seekers have no option other than to take protection claims because they have no other way of getting into Ireland are utterly spurious. One might equally argue that a tax evader must evade tax because he has no other way of becoming a millionaire. The two arguments are morally analogous because in neither case is there a right as such to achieve the end goal but the end goal is attainable through lawful means.

Extending the right to work to those claiming protection would have a negative impact on the number of asylum applications, as was experienced in the aftermath of the July 1999 decision to do so. The immediate effect of that measure was a threefold increase in the average number of applications per month leading to a figure of 1,217 applications in December 1999 compared to an average of 364 per month for the period January to July 1999. Asylum application numbers have fallen significantly in recent years and, on the evidence of past experience, a decision to grant asylum seekers access to the labour market would reverse this trend. It would also undermine the current effective work permit system which provides a comprehensive channel for legal migration to the State. It would further widen the gap in a negative manner in terms of reward between those who access the labour market properly and legally through the work permit system and visa channels and those who simply abuse the asylum process to gain entry.

I believe I have given a comprehensive response to most of the broad points raised by Members on the opposite side of the House. I thank them again for their co-operation in getting Second Stage passed and I look forward to Committee Stage where we can look in more detail at specific points that were raised regarding the changes that were made to the Bill and the amendments to come from the Opposition in this respect.

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