Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

Amendments Nos. 4 to 12, inclusive, seek to amend the International Protection Act 2015 on foot of a decision I referred to earlier, which was a decision by the High Court in March of this year, A and B applicants v. the International Protection Appeals Tribunal, IPAT, and the Minister for Justice. I have a suspicion that this legislation will end up before the courts again so it is important that we give it careful consideration. I have a number of queries. I am not asking the Minister to answer them immediately, but I ask her to take them into consideration.

Has a decision been made by the Minister on whether she will appeal the decision made in March of this year? It would not necessarily be incompatible to appeal the decision, while at the same time bringing forward amending legislation in case the appeal does not succeed. A number of rulings were given by the court in respect of a duty of candour it was alleged one of the applicants had not complied with. Will the State appeal on that ground? It may be difficult for the Minister to give that information but if she has it, I would appreciate knowing it.

The purpose of the Bill is to deal with what are referred to as "safe third countries". Under section 72, the Minister has an entitlement to designate countries as safe countries of origin. They are countries where people are not expected to meet persecution or discrimination or be subjected to violence in respect of the expression of their political opinions or rights. Many countries in the world are safe countries of origin. In fairness to the Minister, on foot of urging by many people, the Minister has added seven countries to that list in the past year. She started earlier this year with Botswana and Algeria and she added five more last week. Specific rules are set out in section 72 for how a country should be designated as a safe country of origin. It is a process the Minister needs to be careful of as it will be challenged and she needs to have evidence to satisfy herself that these countries are safe countries of origin, pursuant to the provision set out in section 72 of the Act.

Section 72A of the Act was introduced more recently as an amendment and it provided for the designation of countries as safe third countries. It is my understanding that the only country that was ever designated by the Minister as a safe third country was the United Kingdom. Perhaps the Channel Islands and the Isle of Man were included, but it was the UK that was designated as a safe third country. The whole purpose of a safe third country is that if people who are seeking international protection have come from one, Ireland is entitled to say that the application is inadmissible and they can be subject to a return order as provided for in the Act. It is important that we get the legislation right. The UK was designated as a safe third country but the effect of the decision in March was that it can no longer be considered a safe third country, which is surprising when we consider that the UK is a country not dissimilar to ours where, in general, human rights are very well protected. Part of the reason for the concern in respect of the usefulness and applicability of the UK as being a safe third country was the Rwanda policy. That seems to have been ditched by the new British Government so I assume that once this legislation is enacted, the Minister will once again designate the UK as a safe third country. The benefit of that will be that we will we then be able to view applications made by people coming from the UK as inadmissible under section 21 of the Act. There will also be the possibility for the Minister to give effect to deportation orders under section 51 of the Act and to return orders under section 51(a) of the Act.

The main criticism by the High Court in its decision in March was that the legislation giving effect to safe third countries, section 72A, did not transpose fully into Irish law the conditions precedent of the recast procedures directive. I hope I am not putting everyone to sleep by talking about this, but it is quite a technical issue. In effect, Ms Justice Phelan who gave the judgment, stated in paragraph 163:

In particular, s. 72A(2) of the 2015 Act (as amended) does not specifically preclude designation as a safe country on the basis of risk of the death penalty or execution or serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

My understanding is that in the proposed amendments we are discussing, for instance the amendment to section 21, the Minister is giving effect to that paragraph in the High Court decision, by stating that section 21(17) will now include the words "punishment or a serious and individual threat to his or her life or person by reason of indiscriminate violence in situations of international or internal armed conflict”. The Minister is also doing so in respect of the prohibition of refoulement set out in section 50A. She is also amending section 51 which provides for the deportation order and section 51A to give effect to the objective and decision of the High Court in A and B applicants v. the International Protection Appeals Tribunal and the Minister for Justice.

I noted that the Minister is revoking the statutory instrument designating the UK as a safe third country, although I questioned whether that is necessary in light of what the High Court said. I assume that once this legislation has been enacted, having conducted her appraisal of the legislative requirements of the new section 72A, the Minister will proceed to designate the UK as a safe third country.

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