Charles Flanagan (Laois, Fine Gael) | Oireachtas source

There are two issues I wish to develop. The first is on the amendments before us and the second is that Deputy Ó Laoghaire spent more time in his contribution addressing the amendments that were disallowed rather than on the others, but I am anxious to reassure the Deputy.

The provisions in sections 88 and 89 are inserted for the purposes of correcting what has been something of a lacuna in non-refoulementconsiderations. It is the practice of not returning a non-national to a country in which the person is liable to be subjected to persecution or where the life, liberty or freedom of the person is at risk under section 5 of the Refugee Act 1996. It applies to persons subject to that Act and to persons removed from the State under the Immigration Acts 1999 and 2003. The introduction of the International Protection Act 2015, which repealed the Refugee Act 1996, somewhat inadvertently removed the legal basis providing for refoulementin the Acts of 1999 and 2003. As was brought to my attention recently by Deputy Ó Laoghaire, the High Court case S.G. (Albania) v. the Minister for Justice and Equality identified issues of an administrative nature.

These relate to the enactment of the 2015 legislation, the transitory provisions relating to the 1996 Act and the domestic legal basis for consideration by the Minister of the principle against refoulement. The court identified that the Minister's reference to the legal basis for the prohibition of refoulementwas incorrect and these issues have existed since 31 December 2016. The importance of that date is that it was the day on which the lacuna inadvertently arose on the commencement of the 2015 Act, a consequence of which was the repeal of the 1996 Act, including the non-refoulementposition of section 5 of that Act. I wish it to be clear to the House that it has remained policy and practice to apply the principles of non-refoulementto all removals from the State in conformity with our constitutional position and our international obligations. Nonetheless, I accept that, of course, legal certainty is required in this area. If there is a lacuna, it must be recognised, admitted and corrected as a matter of priority. The purpose of sections 88 and 89 is, therefore, to restore the position that there is a certain legal basis for the non-refoulementconsideration for all persons being removed from the State, not only in the protection area, but in respect of all deportations and refusals of permission to enter the State.

I listened carefully to Deputy Ó Laoghaire on the matter of his amendments and have noted them. I am concerned that what they propose is inconsistent with the definition of non-refoulementapplied under section 50 of the International Protection Act 2015. That definition was carefully considered and debated in the House when the legislation was before it. It is based on the principles of international law and encompasses very serious issues, including some of those referred to by the Deputy. Having regard to that definition and in view of the fact that advice was sought from the Attorney General, it is unnecessary to include forms of sexual and gender-based violence or female genital mutilation, as these matters are already covered by the prohibition on inhuman and degrading treatment or punishment. As for the proposal to go further and include in the definition the flagrant denial of a fair trial, I assure the Deputy that this already comes within the scope of the definitions as interpreted by the European Court of Human Rights. It is, therefore, neither a necessary or appropriate test. For these reasons, I am not in a position to accept the amendments.

I accept the importance of the citizenship issues raised by Deputy Ó Laoghaire in respect of amendments which are not being considered by the House. I assure the Deputy that the Government is conscious of the issues and is working to maintain full access to EU rights, opportunities and benefits for Irish and, therefore, European Union citizens in Northern Ireland. That has been clear from the outset of the Article 50 negotiations under the Minister for Foreign Affairs and Trade. I stress, importantly, that Irish citizens living in Northern Ireland will continue to be citizens of the European Union and enjoy the right to move freely and reside throughout the Union. They will, of course, benefit from the important right not to be discriminated against on grounds of nationality while so doing. I assure Deputy Ó Laoghaire that we will engage actively to ensure people in Northern Ireland enjoy continued access to European Union rights, opportunities and benefits into the future. There is also an onus on the UK Government to protect fully the Good Friday Agreement in all of its parts. Deputy Ó Laoghaire recalled some of the commitments which have been made in that regard.

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