Derek Nolan (Galway West, Labour)
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I thank the Ceann Comhairle for selecting this topic for discussion. This is the third time I have raised the immigration system during the Topical Issues Debate and the third time the Minister for Justice and Equality has not been present to respond. His absence is particularly discomfiting given that he was in the Chamber only ten minutes ago. Is he due to return to the House?

Fergus O'Dowd (Louth, Fine Gael)
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No, he has just left.

Derek Nolan (Galway West, Labour)
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I find that rather frustrating, to say the least. The issue I raise is the decision of Mr. Justice Hogan in the High Court on 23 January last and its implications for those who are navigating the immigration, asylum and refugee process in this State. The judgment affected the law on subsidiary protection.

As the Minister of State is aware, an applicant seeking leave to remain in the State who has failed the asylum process, in other words, he or she has had an application rejected by the Refugee Appeals Tribunal, is entitled to apply for subsidiary protection. To qualify for subsidiary protection the applicant must show substantial grounds for believing that he or she would face a real risk of suffering serious harm if returned to his or her country of origin. The High Court found, two weeks ago today, that the current model used in Ireland whereby we assess the asylum application first and subsidiary protection application thereafter, known as the bifurcated or split system, is not being operated properly. In the case before the High Court, Mr. Justice Hogan criticised a decision to reject an application for subsidiary protection on the grounds of adverse credibility findings in the asylum application stage. In other words, the grounds for failing the first hurdle were considered grounds for failing the second hurdle. The State, through the office of the Minister, was found to have failed to afford the applicant an effective hearing, contrary to the principles of due process.

Mr. Justice Hogan stated that an effective hearing for subsidiary protection must would involve the applicant being invited to comment on any adverse credibility findings made by the Refugee Appeals Tribunal and being given a fresh opportunity to revisit all matters bearing on the claim for subsidiary protection. It would also involve a completely fresh assessment of the applicant's credibility in circumstances where the mere fact was that the tribunal had ruled adversely to this.

Like me, the Minister of State operates constituency clinics and will be visited weekly by people seeking to discuss the immigration and asylum process. Many of them have been in the system for years. In one case of which I have been made aware, a family received notice in the past week that decisions regarding subsidiary protection have been withdrawn without reasons being given.

Is this decision the reason for that withdrawal?

I wish to ask a number of questions. What are the consequences for those who have been refused subsidiary protection? The High Court has stated that the current procedure in certain circumstances is wrong and does not constitute a fair hearing. Many people in the State who have failed in their subsidiary applications may have been judged incorrectly. Are we going to audit those decisions to ensure they were reached correctly? What will happen to people who are currently in the process? Are we examining it to ensure that applications are being made to a proper system?

Mr. Justice Hogan acknowledged that his decision was likely to have significant, perhaps far-reaching consequences for the practical administration of the subsidiary protection scheme in terms of complications, delays and costs. Does the Department have the capacity to deal with these demands? Given the unseemly, unhealthy and despairing effects of the time spent in direct provision centres, of which there is much criticism, by those who have reached the subsidiary protection phase, does the Minister of State believe that the decision will further exacerbate this delay? When will the legislation for a new combined application process be tabled before the House? It has been drafted and is almost ready for publication.

I thank the Minister of State, Deputy O'Dowd, for taking this debate. I appreciate that he is not in the Department in question and may not be able to provide me with the full answers that I require.

Fergus O'Dowd (Louth, Fine Gael)
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I thank Deputy Nolan for raising this matter. I am not in the Department of Justice and Equality, but I am present in the House. I apologise for the Minister, Deputy Shatter, being unable to take this debate.

The judgment of Mr. Justice Hogan in the High Court, delivered on 23 January, deals with an applicant's right to be heard in the context of an application for subsidiary protection. Mr. Justice Hogan's judgment, delivered after a preliminary ruling by the European Court of Justice, has interpreted this concept to mean that there may be instances where an applicant may require a hearing, particularly where he or she wishes to challenge negative credibility findings made by the Refugee Applications Commissioner or the Refugee Appeals Tribunal that might be relied upon by the Department of Justice and Equality in arriving at a decision in the individual's case.

As Deputy Nolan stated, the court's judgment has significant practical implications for the current subsidiary protection process. The High Court has flagged the need for additional procedural steps to ensure that subsidiary protection applicants are guaranteed the right to an effective hearing. The details in this regard, which are set out in the court's decision, are under examination in the Department in consultation with the Office of the Attorney General to determine how the current administrative procedures might be adapted to bring them into line with the court's judgment. Given the number of subsidiary protection applications that are currently waiting to be processed, it is important that every effort is made to continue processing activity both from the State's perspective, owing to the substantial cost to the Exchequer of maintaining protection applicants, and the perspective of applicants themselves, many of whom have been waiting for some time for final answers to their requests for the State's protection or, failing that, for permission to remain. As a result, Mr. Justice Hogan's judgment is being studied in great detail by officials in the Department.

The current arrangements for dealing with subsidiary protection applications were always intended to be temporary pending the enactment of the Immigration, Residence and Protection Bill 2010. Work on the Bill is ongoing at the Department pursuant to current Government policy, which is committed under the Programme for National Recovery, to "introduce comprehensive reforms of the immigration, residency and asylum systems, which will include a statutory appeals system and set out rights and obligations in a transparent way". The Bill provides, inter alia, for the introduction of a single application procedure for the investigation of all grounds for protection and any other ground presented by applicants. This change to the processing framework will remove the current multilayered and sequential processes associated with the existing system and address the issues arising from the High Court's decision.

The Minister outlined to the Joint Committee on Justice, Defence and Equality that several hundred amendments to the 2010 Bill are anticipated, the majority of a technical nature. The Minister also expressed the considered view that, instead of engaging in a cumbersome process of tabling hundreds of amendments, it would be more efficient to publish a new and enhanced text. Such an approach can incorporate the many anticipated amendments while addressing key outstanding issues, several of which have been of concern to Members, including that of a streamlined, single application procedure. This proposition was broadly welcomed by the joint committee.

Work on the Bill continues on this basis, including in co-operation with the offices of the Parliamentary Counsel and the Attorney General while also taking account of relevant rulings by the courts. It remains the Minister's objective under this new approach, mindful of needing to deal with the competing legislative demands of our EU-IMF programme commitments, to be in a position to introduce a revised Bill for approval and publication by the Government later this year.

The Minister has some concerns about the extent to which applicants seek to avail of the judicial review process to stall or prolong their stays in the State. The construct of the current system provides ample opportunity in this regard, giving rise as it does to delays in finalising cases and to significant backlogs of cases. In parallel with the work on the Immigration, Residence and Protection Bill, the Department is also developing proposals on judicial review with a view to addressing some of the difficulties in this area.

The Deputy may be aware of the large number of cases that often back up, sometimes on tenuous grounds, behind legal challenges. Only last week, the Court of Justice of the European Union delivered its ruling in a case referred to it by the High Court in April 2011. This referral gave rise to final decisions in approximately 900 asylum cases that were being delayed. The Court of Justice's ruling supports the position taken by the State in the cases concerned. While the court's ruling is welcome, the costs to the State arising from the inability to process the cases impacted by the referral are significant. This reinforces the need to be able to adapt, as far as possible, our processing arrangements so that processing activity can continue and costs of this type can be minimised.

Derek Nolan (Galway West, Labour)
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I thank the Minister of State for his response, which was quite "Department of Justice-y" in many ways - I apologise for using that phrase - in that it referred to the need to progress, judicial reviews and so on. Rarely do I get a response from the Department that refers to the impact on the lives of people in the system or acknowledges that, as a result of the delay in introducing legislation, the judicial review proceedings and the changes in the procedures for subsidiary protection applications, families and people - real human beings - are left waiting in accommodation for years on end with nothing to do, are constantly worried and are in the dark about their futures. The answers lack any kind of human element.

I admit that we are under pressure from the EU-IMF programme and the ECB to introduce other legislation, but the delay in this Bill is perpetual. It has been ten years coming and has been pushed back constantly. People need it to be introduced if something is to be done about their situations.

The judicial review process costs a fortune, but the current situation is without credibility. No one believes that we have a proper, fair or transparent immigration system. Some of the country's legal minds believe that it is a sham. I will not apologise for delays caused by judicial reviews when our system does not stand up to scrutiny.

Today, there has been a great deal of discussion, particularly in the media, about the long-term effects of institutionalisation. People were kept in places for long periods, often against their will, and received very small subsistence payments, if any. The line is that it was a product of the time. In this country today, thousands of people spend five, six or seven years in direct provision on a pittance and live in small rooms with their children, sometimes with as many as four people to a room, yet we are turning a blind eye. The constant bureaucratic attitude to people's suffering is becoming tiresome. We need to do something about it.

Fergus O'Dowd (Louth, Fine Gael)
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I will be happy to bring the Deputy's opinions to the attention of the Minister. The Minister has asked me to advise the Deputy that he is unable to take this debate because he will be in the Seanad from 4.30 p.m. until 8.30 p.m. on Second Stage of a defence Bill. He will also take Private Member's business and the Adjournment debates in the Seanad.

Obviously, the Minister is concerned about this issue and I expect that he will contact the Deputy shortly regarding the points the latter has raised. I will be happy to ensure that the Minister's Department is also advised of the Deputy's comments.