Dáil debates

Thursday, 4 November 2021

Criminal Justice (Smuggling of Persons) Bill 2021 [Seanad]: Second Stage


1:15 pm

Photo of James BrowneJames Browne (Wexford, Fianna Fail)
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I move: "That the Bill be now read a Second Time."

I am pleased to introduce this Bill to the Dáil following its passing in the Seanad. The purpose of this legislation is to strengthen Ireland's regime against the smuggling of persons and to implement several important international instruments in this area.

People smuggling is the facilitated, irregular movement of persons across borders for financial or other benefit. It is distinct from human trafficking in that smuggling occurs with the consent of the person while trafficking involves the recruitment, transportation and exploitation of a victim. However, smuggling and trafficking are inevitably closely linked. Those smuggled are particularly vulnerable to exploitation, often placed in mortal danger and left owing debts to organised criminal groups. The United Nations Office on Drugs and Crime, UNODC, estimates that 2.5 million people are smuggled every year. Catastrophic loss of life is all too common, and everyone in the House will recall the horrific deaths of 39 Vietnamese men, women, and children in Essex two years ago. Ireland experienced the tragic consequences of people smuggling in the Wexford tragedy of December 2001, where eight people suffocated in a shipping container while attempting to enter the United Kingdom.

Smuggling is a highly profitable criminal activity and one that is difficult to prosecute given its inherently complex and cross-border nature. A co-ordinated international response, including effective and dissuasive criminal sanctions, is vital, and this Bill will strengthen and modernise Ireland's regime and ensure we play our part in that response. It is important to emphasise, however, that the criminal sanctions in this Bill are only one part of a broader national effort to ensure we support those most at risk of exploitation. Over the past year, we have introduced significant measures to combat trafficking, create a more victim-centred approach to identifying and supporting victims, and raise awareness and provide training. An important element of this work was the approval by the Government earlier this year of a proposal to revise our national referral mechanism, NRM. The reform of the NRM is intended make it easier for victims to come forward, to be officially recognised as victims of human trafficking and to receive the appropriate supports. Work to advance this important initiative is under way.

In addition, other ongoing initiatives include the drafting a new national action plan on human trafficking; the development of training, through NGOs, for front-line staff in industries such as the hospitality, airline and shipping sectors who may come into contact with trafficked persons; the improvement of supports for victims through the implementation of the Supporting a Victim's Journey programme; the running of a new awareness-raising campaign, which launched in October, in partnership with the International Organisation for Migration, IOM, on human trafficking in Ireland; and the promotion of the supports that are available, which will build on the success of previous campaigns. There will also be an increase in funding to support victims of crime generally, as well as increased funding specifically dedicated to supporting victims of trafficking.

Turning to the Bill, Deputies will be aware that people smuggling is already an offence in Ireland under section 2 of the Illegal Immigrants (Trafficking) Act 2000. The introduction of this legislation is motivated by two goals: to extend those existing provisions in line with the relevant EU and UN instruments to ensure Ireland meets its shared international obligations, and to address the practical limitations of the 2000 Act which have hampered successful prosecutions.

The Bill reflects the provisions of three international instruments, namely, the EU Council Directive 2002/90/EC defining the facilitation of unauthorised entry, transit and residence, the EU Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, and the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime, which was adopted by the United Nations General Assembly in 2000.

The EU framework is composed of two instruments that were adopted together and which are commonly referred to as the facilitators package. Together, they set a baseline against people smuggling across the EU, providing for the essential elements of offences and their geographic scope, minimum-maximum penalties, corporate liability, extraterritorial jurisdiction and inchoate offences. These instruments were introduced in 2002, and at the time Ireland and the UK chose not to participate. In the context of closer links with the Schengen area, however, and particularly for the purpose of accessing the second generation Schengen Information System, we have committed to implementing these instruments by the end of this year. The UN Protocol, adopted by the General Assembly in 2000, was the first global instrument to contain an agreed definition regarding the smuggling of migrants. Countries that ratify this treaty must ensure migrant smuggling is criminalised in accordance with the protocol's legal requirements.

Taken together, the EU and UN instruments require criminalisation of the facilitating of smuggling into any member state or state party to the protocol. They also provide for the criminalisation not only of facilitating the act of unlawful entry into a state but also that of facilitating unlawful presence. The instruments also require the exercise of extraterritorial jurisdiction on a broader scale than is currently provided for.

As I noted, significant practical issues have arisen in respect of the offence under section 2 of the 2000 Act. The most important of these is that it is an element of the existing offence that it must be proved that the smuggling was done for gain. This requirement reflects the focus placed, and rightly so, on prosecuting for-profit smuggling. Nonetheless, the need to prove the "for gain" element of the offence places a difficult burden on investigators, particularly when an offence is discovered at the point of entry rather than through prior intelligence gathering. While the offence under the 2000 Act has been successfully prosecuted, in practice it is often simply impossible to meet this burden, even under circumstances where it is clear no humanitarian purpose of any sort exists. The main reasons are that the payment will usually take place outside the State and the smuggled persons may not co-operate with authorities for fear of the consequences for them and their families at home. These are well-known issues in respect of such prosecutions. The European Commission, for example, in its analysis stated:

In this context, it is useful to recall that payments to migrant smugglers tend to occur in third countries of origin and transit. These are often done in cash [or] with the use of intermediary brokers operating largely without a paper trail and often outside the law.

In addressing issues of proving gain, it should be noted there are differences in approach between the UN protocol on one hand, which envisages an element of material gain in all cases, and the EU instruments on the other, which do not. However, these instruments set minimum standards for what must be considered criminal activity rather than prescriptively determining the elements of the offence. Within the requirements of these instruments, and recognising the vital imperative of actually being able to prosecute these serious offences, we have sought to strike an appropriate balance, one which reflects our intention to focus on for-profit smuggling while also ensuring those who are genuinely acting for humanitarian reasons do not face criminal penalties. To achieve this we have adopted a reverse burden approach which does not require proof of gain as part of the offence but instead provides a broadly applicable humanitarian assistance defence.

A central provision of the international response to people smuggling is to avoid criminalisation of smuggled persons, and the Bill makes express provision to ensure such criminalisation does not occur. A person does not commit an offence by virtue of being smuggled. The primary offence under this section must be in respect of another person, while section 9(2) provides that a person does not commit an offence by aiding, abetting, counselling or procuring his or her own smuggling. To avoid any doubt or chilling effect, the Bill also makes express provision in section 5(2) to ensure those providing goods and services in the ordinary course of their business, for example, a landlord, are not captured under the definition of assisting presence in the State. Arising from our discussions in the Seanad, I am giving further consideration to whether an amendment is appropriate to clarify that assisting a family member does not constitute a smuggling offence.

I will briefly mention the specific provisions of the Bill. Part 1 contains preliminary provisions, including the Short Title, commencement, expenses, repeals and definitions. Part 2 forms the heart of this Bill and creates the new criminal offences. Section 6 provides for the offence of assisting unlawful entry into, transit across or presence in the State. The essential ingredients of the offence are that a person intentionally assists entry into, transit across or presence in the State of another person where the entry, transit or presence of the other person is in breach of a specified provision of Irish immigration law and the perpetrator knows or has reasonable cause to believe that the entry, transit or presence of the other person is in breach of a specified provision. A person convicted of an offence under this section is liable on conviction on indictment to imprisonment for up to ten years.

Section 7 provides for the offence of assisting unlawful entry into, transit across or presence in a designated state. The elements and penalties applicable for this offence are similar to those of an offence in respect of the State under section 6(1), except that the section 7 offences relate to entry into, transit across or presence in the designated state rather than Ireland, and the relevant immigration law is that of the designated state rather than of Ireland. More limited extraterritorial provision also applies in these cases.

Section 8 provides for additional offences in respect of the fraudulent documents used or intended to be used for people smuggling. These provisions complement those of Part 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

Section 9 provides the humanitarian assistance defence. It provides that it is a defence to prove on the balance of probabilities that the conduct was engaged in for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit. Provision is also made for those working for bona fide organisations.

Section 10 provides for penalties. Notably, it provides that the court shall treat as an aggravating factor any behaviour by the offender that endangers the life or safety of the person being smuggled or that resulted in the exploitation or inhuman or degrading treatment of the person to whom the offence related.

Part 3 deals with enforcement measures, notably including powers in respect of ships at sea, and provides for the confiscation and forfeiture of vehicles and vessels used in the commission of smuggling offences.

Part 4 deals with miscellaneous matters, including provisions for liability for corporate bodies, while Part 5 addresses incidental amendments arising to other enactments.

I am indebted to several organisations that made submissions to the Oireachtas scrutiny of the general scheme of this Bill. These included Ruhama, the Migrant Rights Council of Ireland, the Bar Council and the Irish Human Rights and Equality Commission. The submissions made on the general scheme of the Bill have been considered in depth in the course of drafting the Bill and, where appropriate, are reflected in the Bill before the House. I know there are many details that will merit debate and I look forward to working constructively with Members as the Bill progresses.

1:25 pm

Photo of Martin KennyMartin Kenny (Sligo-Leitrim, Sinn Fein)
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We support this Bill. It is a legislative measure that is overdue in some respects. People smuggling is not only an issue for Ireland but is an international issue that crosses boundaries and borders across Europe and elsewhere in the world. It is not before time that this EU directive is finally being transposed into law, and I and my Sinn Féin colleagues welcome it.

Many Deputies will recall the horrific images on our television screens when 39 Vietnamese people suffocated in a sealed container in Essex in 2019. The victims in that case were 29 men, eight women and three children, two of whom were aged 15 years. There was evidence in the subsequent trial detailing the terror and horror those people went through as they died, one by one. Some of them tried to escape. Many of them made contact with their families to say a final goodbye from the entombed horror which they lived through for the number of days they were locked in the container. That incident brought home the realities and dangers of this behaviour and, indeed, what people must be running away from by taking such risks to get to somewhere better in their lives. Many are trying to get to countries where they already may have family and they are trying to join them. That has to be taken into account.

The incident in Essex displayed the grotesquely lucrative business that people smuggling is. In that case we understand each passenger paid between £10,000 and £13,000 sterling. We all are aware of the exploitative nature of the illegal smuggling trade and the after-effects of it. Many of the people who are smuggled have to repay their debts to smugglers when they get to the other country. Some of that is done through forced domestic labour or, indeed, through prostitution in many cases. There are examples of that in this jurisdiction as well. I am aware of the situation regarding a domestic slave labourer a number of years ago. While I will not go into details, many people would be shocked at how much of it is happening.

It is astounding, especially in certain groups of individuals who come here from certain countries and keep within their own boundaries and become a little enclave of people. There are some horrific situations there and much of it comes from the fact the person who arrived here was without papers and came in illegally after being smuggled here. They then feel they have no identity and have no place. They are outside society and can be abused in any way possible by unscrupulous individuals. Due to the way these people came into the country and the fear of drawing any attention to the situation in which they find themselves, they are left in a precarious position. Many of them end up in prostitution and in other activities they did not envisage was going to be where they would end up before they left their native countries.

On the other hand, the fact this Bill will allow for designated organisations to smuggle people into Ireland may form a key part of humanitarian work in the future. That is vital. We have to recognise there are situations where individuals are fleeing from very difficult situations in their native country. They often need assistance to get here, and sometimes people of goodwill facilitate that. It would be totally inappropriate if legislation were to punish people in those circumstances. We recently dealt with people fleeing from Afghanistan after the fall of the government there. Like me, Deputies and Senators received emails at that time from Afghan people in Ireland who had families there outlining the fears and problems they had.

Much of it related to people in Afghanistan who had worked for Irish or other EU companies. Some of them were under threat because the Taliban saw they were working with the western enemy and they were in a really difficult position. That has not improved for them and, in fact, it has got worse in recent weeks.

There were great difficulties in trying to locate and extract people safely before events in Afghanistan got as bad as they did, and they have got worse since. It was a time that necessitated human trafficking by a designated organisation to allow people to get out safely but, unfortunately, very few were able to do that. I hope that when the Bill comes into law, it will be enforced as a best practice framework to identify and vet any suggested organisations that might smuggle people into the country, and it is vital that that be done properly. The designation of organisations cannot be left to chance because they take people's lives in their hands. We need to ensure it is done properly and that proper regulations are in place in that regard.

It would be remiss of me not to speak to the details these people face when they come forward and try to regularise their status in Ireland. Many people who have come forward in Ireland because they want to regularise their status and stay, work and be part of the community here, with so much to offer to society, find that very difficult, as the Minister of State will be aware. The system is really broken in that context. While there were delays because of Covid, many of these delays predate Covid by quite some time. This has further marginalised people and pushed them onto the fringes of society.

The Bill highlights to me, especially in light of my having engaged with stakeholders on this topic, that increased and specialised training is needed for those working on the front line in the naturalisation and immigration services. It is important that those dealing with applications, interviews, background checks and so on be aware of the signs they need to look out for, whether in regard to the person they are speaking to or the documents he or she provides. The same goes for members of An Garda Síochána, the Garda National Bureau of Criminal Investigation and the divisional protective units in place throughout the country. The State has to support these people but we cannot support them unless we can identify them. That is a crucial part of it.

The other day I saw a member of An Garda Síochána in Dublin who was clearly from a different ethnic background. He probably came from Africa originally, judging by his skin colour. That is welcome and we need much more diversity within An Garda Síochána and all other elements of State employment. Only when people see themselves or reflections of themselves in that context will they know they will be accepted and can be part of our society. That is an important move we need to make.

We welcome the Bill and think it needs to be advanced as quickly as possible because there is a great deal of work to be done in this area.

1:35 pm

Photo of Ruairi Ó MurchúRuairi Ó Murchú (Louth, Sinn Fein)
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We will support the Bill, which will transpose an EU directive and EU legislation. I have spoken many times about the criminal confraternity and the high level of interconnectivity within crime. To a degree, criminals have at times been miles ahead of where the legislative or investigative process and our capacity as a State or as states have needed to be. We absolutely recognise the need to do this.

People smuggling, obviously, happens across borders, so we welcome the fact this measure will apply throughout the European Union. Of course, two jurisdictions share this island. Deputy Martin Kenny mentioned the scandalous situation that arose in October 2019, when 39 Vietnamese people lost their lives in a brutal way. It was a people-smuggling operation that did not view those who were trafficked as anything other than a means of making money. It was a heinous way of looking at human life. This can be very difficult to contemplate.

I imagine other Deputies will outline the connection of people smuggling with other levels of crime. We have heard examples of people having been smuggled into this country who have been forced into prostitution, not necessarily knowing what they were entering into when they left their home country or what the circumstances would be. There have been cases of people being forced into positions of being involved in growhouses or other criminal enterprises. It goes without saying that somebody who is willing to risk people's lives and smuggle them will be willing to move anything else that might be considered, given that it all comes down to money.

We need to ensure we have all the powers necessary for dealing with this. As Deputy Kenny said, we need a best practice framework. In the case of designated organisations, we need to ensure due diligence will be carried out in order that we will in no way allow them to operate under some sort of cover. Furthermore, we must ensure we give protections to those people doing the right thing and facilitating people who are, in some cases, leaving dreadful, war-torn scenarios. When people end up here having left terrible situations, probably via a terrible journey and being used and abused by brutal criminals, we need to ensure we have all the tools necessary to engage with them. Sometimes these people hide in plain sight and operate on the periphery of our society. We need to ensure, therefore, that we have all the tools to enable us to see where this is happening in order that we can address it insofar as possible.

As Deputy Kenny said in the context of the processing of asylum seekers, additional resources are needed, whether for the Irish Naturalisation and Immigration Service, INIS, or the Garda National Bureau of Criminal Investigation. All Deputies will have dealt with these issues, submitted parliamentary questions and had that over and back with the authorities. Sometimes it has taken a hell of a lot longer than might have been anticipated and, in many cases, we have not got to the point we would have wanted quickly enough. I accept that there can be additional issues in some cases the authorities deal with, where they relate to asylum seekers and so on, but we need a system that is compassionate and can address these issues insofar as possible. If additional resourcing is required, that needs to happen.

I expect all Deputies will support the Bill. It stems from a recognition that we need every available weapon to deal with those people who engage in this brutal practice of the smuggling of persons, with which international criminality in all its forms is deeply connected. I assume people who engage in this practice will engage also in moving materials without whose presence on the streets of Dublin, Dundalk or any other towns and villages on this island we would be much happier. We need to ensure we have all the tools required. We need whatever legislation is required to ensure we can operate effectively and deal with the international facets of this and any technical difficulties that might arise. We must do what is necessary to protect people who are being abused and not leave any room for these criminal gangs. I imagine all Deputies will be in agreement and we just need this to happen as soon as possible. There must be due diligence in regard to how it operates and the necessary protections must be put in place as soon as possible.

Photo of Patricia RyanPatricia Ryan (Kildare South, Sinn Fein)
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Like my colleagues, I welcome the Bill. It is timely we are having this debate today. During the summer, there was the first ever conviction under the existing anti-people smuggling legislation and we must consider why it took so long. We must consult An Garda Síochána and other agencies to seek their opinions on necessary reforms in this area of law.

The purpose of the Bill is to bring Irish legislation into line with an EU directive. It also allows for specific circumstances in which a person may be brought into the country by a designated organisation for the purposes of seeking asylum, which the existing law does not provide for.

Twenty years ago next month, a lorry driver in Rosslare transporting what was supposed to be a load of furniture from Milan noticed the customs seal on the load was broken. Gardaí were called and discovered that 13 people had been in the container for more than five days. Eight of them, including four children, had suffocated. The migrants had paid traffickers up to €15,000 to be transported west. The traffickers had assumed the container would be unloaded in Dover but it was sent directly to Ireland. A trial of the people smugglers at the centre of that incident heard the group made up to €12 million a year from human trafficking. Two ringleaders were convicted in a Belgian court in 2003, but they fled the country. One of them was apprehended in 2012 but the court annulled that conviction. Some of the survivors of the tragedy settled in Dublin and Wexford. I remember politicians at the time shedding tears and saying it would never happen again, yet tragedies like it continue to happen all over Europe.

Research by the Irish Human Rights and Equality Commission, IHREC, has shown that the lack of effective legislation and criminal justice processes to address people smuggling has contributed to the smugglers and criminal networks viewing smuggling as a low-risk, high-reward offence. That needs to change. People who pay these smugglers do not place themselves and their families in danger without good reason. Many of them are fleeing religious or political persecution. All of them are seeking a better way of life. We know this only too well from our history of emigration in this country. The nature of their transport to Europe means many refugees find themselves in situations that have led to exploitation and forced prostitution, as referred to by Deputy Martin Kenny. That cannot be allowed to continue.

This Bill will allow for designated organisations to bring asylum seekers to Ireland without fear of prosecution. We must put safeguards in place to ensure all designated organisations are vetted properly to reduce any risk of exploitation. In its 2020 report, The Challenges of Human Trafficking in the Digital Era, Europol notes that information and communications technology has changed the criminal landscape. Traffickers have adopted new methods and ways to recruit, control and exploit victims. We must respond in kind.

Before I conclude, I want to highlight the delays in processing asylum seekers. Additional resources must be provided to INIS and the Garda National Bureau of Criminal Investigation to help them to deal with the backlog. The Government must deliver an end to direct provision. Companies should not be profiting from human misery.

1:45 pm

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Once again, I begin a contribution on a justice matter by having to refer to the time lag between an EU or international legal instrument being adopted and mandated on Ireland and our accepting it, and legislation being presented to this House to transpose it into domestic law. The two European Council directives we are dealing with in this legislation date back to 2002 and the UN protocol dates back to 2000. The Department has acted to transpose the directives because not doing so means Ireland will no longer have access to the Schengen information system, SIS, from the end of next month. It seems the Oireachtas waits to debate legislation of this kind until there is either a punitive case being taken against us in the European court or there is some significant consequence for Ireland in not acting. These are instruments, from both the EU and elsewhere, that we willingly and voluntarily sign up to but have a great reluctance to sign into law.

Being part of the SIS is really important to us. It allows our customs and emigration authorities to have access to information about alerts on wanted persons, missing persons, stolen vehicles and a range of other information that is essential for those authorities to function properly. In this instance, I accept there may be some excuse in regard to the original EU directives insofar as we did not opt in because we are not part of the Schengen Agreement, but there is a pattern to how we deal with such matters. The Minister of State seems to have taken a lot of backlogged EU directives off the shelf in recent times. I commend him on that. However, there is something in the way this House functions that is leading to the issues in this area. Once upon a time, there was a Dáil subcommittee on secondary legislation that looked at directives and why they had not been transposed. That is something we might look at again.

In his opening statement, the Minister of State pointed out the important and significant difference between people smuggling, which is facilitating the irregular movement of people across borders for financial or other benefits, and human trafficking, which is the recruitment, transportation and exploitation of persons. These are most serious matters. People smuggling is one of the horror crimes of our times. Desperate individuals and families undertake often horrific journeys to seek a better life for themselves and their families.

I recently watched a truly shocking television documentary setting out the details, in all their horror, of what happened to the Vietnamese men, women and children, as referred to by other Deputies, whose bodies were found in Essex in 2019. Seeing their last desperate text messages, sent when they knew they were dying and already surrounded by the dead, was quite numbing. We saw, too, their home villages in Vietnam and their families and friends. In echoes of millions of our own people and predecessors, they left their country villages in search of a better future. Whole families gathered together the money to pay for those journeys, a debt that will take a generation for many of them to pay back. It really was a horror story.

Closer to home, I remember vividly the day in December 2001 when a container was opened in Drinagh business park in Wexford town, no more than a mile from my own home. Eight Turkish males, including four children, were found suffocated inside that sealed box. Five others miraculously survived. I remember going to Wexford General Hospital that day. I remember in particular talking to the then parish priest of Wexford, Fr. Jim Fegan, whom the Minister of State would know well. He was one of the people, together with local ambulance crews and members of An Garda Síochána, who had to go inside that place of suffering. The experience is still seared on those people. There is a beautiful memorial to those who died at the site in Drinagh. I occasionally go out to that quiet and calm place. I remember the inauguration of the memorial a year after the tragedy. Anybody who attended will still be impacted - I would say, traumatised - by the memory of the relatives who attended, the words spoken and the keening of one elderly grandmother for the loss of her grandchildren.

The point I am making is that this is about the real suffering of real people. Sometimes when we talk about these issues, we lose sight of the fact these are human beings trying to get on with life and make a better future for themselves. Unfortunately, this is still happening. Our laws must be robust enough to dissuade in the clearest terms those who would engage in people smuggling and the exploitation of people in this way. Their blood money is gathered at a very high price indeed.

This clearly is an international crime that can only be effectively combated on an international basis. The instruments we are enacting criminalise the facilitation of people smuggling into any member state of the European Union or state party to the United Nations protocol. I understand how our experience of the operation of the Illegal Immigrants (Trafficking) Act 2000 has proven problematic, as the Minister of State has referenced in his opening comments, especially the challenge presented by our prosecution authorities in proving, in a court of law, the for-gain motivation. However, this is an extraordinarily difficult area and we want to be careful and clear in the law.

The Minister has crafted a different approach, the so-called for humanitarian purposes defence, to be made available to those who would facilitate people moving into our State or the European Union, not for gain, but motivated by humanitarian reasons. That defence must be there. A defence from prosecution or conviction is extremely important. We have seen where clear humanitarian support to migrants has, in jurisdictions including in the European Union, been deemed unlawful and the humanitarian support given to desperate people has been criminalised. That cannot be right and cannot be our approach. I do not suggest it is the approach of the Minister or the Government.

We have to be careful and clear in how that balance is calibrated in that those who see the exploitation and smuggling of people as a commercial business and have no regard for the well-being or welfare of men, women and children must have the full rigours of the law used against them. Those who genuinely want to assist desperate people in a struggle for a better life cannot be criminalised. The section 9 humanitarian assistance defence is of the utmost importance.

The area highlighted for attention by the Irish Human Rights and Equality Commission is the lack of clear rights and protections for the people being smuggled because most of our focus has been on the smugglers rather than the smuggled. We need to step back and ensure the people I have described and their families also fall within our purview and are dealt with properly. What is to become of people found to have been smuggled? What clear rights and protections do they have? Some of the survivors of that horror story in my home town of Wexford, as has been said, settled in Wexford and subsequently in Dublin.

It cannot simply be a matter of a humanitarian gesture to be given in an extreme case such as that by the Department or Minister for Justice. We need to have an established policy on how we deal with the victims in all of this - the smuggled people. What is our approach to them? How are they to be dealt with? What fundamental rights do they have? It is an issue we need to deal with in the context of the legislation we are advancing here today.

I grant it that these are difficult and challenging issues to address, issues that need to be approached from a humanitarian perspective. That would be the view across this House. We have been fortunate in this jurisdiction so far that, by and large, there has been a large consensus of view among the elected representatives of this House on how to deal with such matters. We have not had the far right approach that is becoming more and more prominent in other European countries and elsewhere throughout the world, where a fortress Europe is wanted and no regard is had for those desperately seeking to improve themselves. That may be because of our own history seared in our souls and memories, but we need to be vigilant to ensure that is protected and that mind frame is not organically growing on the ground, especially through some of the most awful social media sites growing in this jurisdiction, as they have across the globe.

These are not easy questions to settle. We must see people who go to such lengths to improve their circumstances and their family's future in a complete and whole way, to seek to understand their experiences and support their needs. What they have already endured has been immense in getting to our shores. A country with our experience has a unique and particular responsibility to be mindful. We can tease these things out.

I welcome the conclusion of Second Stage. I ask the Minister to give a clear exposition of what rights smuggled persons have, what his intention is, what statutory underpinning it has and whether it needs such an underpinning, even in this legislative measure we have before us. It would give us all an easement that we would be robust, clear and definitive in striking as strong a blow as we can against those who would smuggle and exploit people, while being as compassionate as we can possibly be to those who are smuggled and are seeking to build a better life here.

I will touch on another issue I raised previously, which is the operation of Irish Naturalisation and Immigration Service, INIS. I have no doubt the good women and men who populate INIS are of the finest calibre and do a sterling and great job. The problem is, in crafting the legislation, we put a barrier of secrecy on how it does its business. When individuals come to us to try to ascertain their status, and I am certain this happens to all of us because many individuals come to me, we have no option but to put down a parliamentary question, which with all due respect is a pointless exercise because it just goes to INIS, or to email INIS, which is the more likely option, in which case we get a standard reply stating that according to the GDPR law it cannot provide any information and the client should look at the tracking of his or her application.

That is not the way any other service operates in this State. Without oversight, any service is vulnerable. We get significant criticism, as Deputies, for our clientelist way of operation. I make no apology for that. All of us, individually, regard ourselves as an ombudsman for our own people. I am quite certain that people go into public authority with a strength by saying they will get Deputy Catherine Murphy or Deputy James Browne to table a question on a matter or to raise it. That is a strength for people, but we need to have the capacity to hold all public officials to account and that is not there with INIS. The opaqueness of INIS does not serve INIS as an organisation, just as it does not serve us or the individuals who simply want to know what their status is. It can go on for years like that.

After six months, eight months or a year, INIS could tell people they need to submit a document, sometimes one that had been forwarded in the first place. Then the clock on the application starts ticking again. There seems to be no way of challenging that because of the structure of INIS. I have made this point before. I ask the Minister of State to look at the legal framework that underpins the service. That would be a great boon for transparency in the operation of our immigration services and a great asset to the most vulnerable of people who are new to us, many of whom are fearful of authority. We have seen that in the vaccines uptake. Some people have an experience of authority and government that is very different from the casual and open way that, thankfully, our people interact with politicians. We need to have that openness. I ask that the Minister of State have a look at the underpinning legislation for INIS. He might make some alterations if there is a difficulty.

As we all know, the whole GDPR issue has been a boon to those who want to shield transparency and make information more opaque. We need to have a balance between the oversight of all public administration and the right of individuals to privacy. Deputies do not make a representation because we are thinking of somebody and picking them out off the street. We do so because somebody comes to us and asks us to make a representation as his or her elected representative. This is a matter that needs to be addressed.

This is important legislation, which is not particularly complex. It will give a new arm to prosecute those who have been difficult to prosecute because of the existing need to prove a for-profit motive. If we can overcome that, we will be able to prosecute those manipulators of humanity and human desperation. If we can put them to the sword, it will be a good day. The Bill will certainly have the Labour Party’s support in trying to achieve that.

2:05 pm

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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I thank Deputy Howlin for those words of wisdom. Deputy Patrick Costello is our next contributor.

Photo of Patrick CostelloPatrick Costello (Dublin South Central, Green Party)
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Like all the previous speakers, I welcome this Bill as a positive step. However, I disagree with the Minister of State’s comments that human trafficking and people smuggling are different. They are hand in glove. People smuggling is often the engine that facilitates the movement in human trafficking. I do not think one can be separated from the other. It is perhaps this false dichotomy that has given rise to the criticism of IHREC and others that the Bill is silent on the victims and their rights. We need to look at both human smuggling and human trafficking together. We need to address the rights of the victims as much as we need to address punishment for those who are doing the smuggling.

Deputy Howlin gave us a most welcome history lesson on our failure over a long period to implement the directives. I read the comments of Ms Justice Iseult O’Malley in a case in 2015. She described how our system for dealing with smuggling and trafficking was not fit for purpose. Little has changed since then. The obvious consequences of that are that we continue to have victims and trafficking of people. There are also serious consequences for the State. We are tumbling down the ratings in the US State Department’s trafficking in persons, TIP, report. We have been on the tier 2 watchlist for the past two years. A state only gets two years on the tier 2 watchlist before it either drops to tier 3 or moves up to tier 1. If a state falls to tier 3, there are significant consequences. The United States, in its own laws, will not work with that state in certain areas and it becomes persona non grata, as it were, because it is on tier 3.

The reform of the national referral mechanism is long overdue. It is as overdue as the transposition of the directives. While I welcome that we are beginning to see movement on reform of the national referral mechanism, it is not moving quick enough. We need to address that. I hope this Bill gives us an opportunity to do that. As I said, we need to address the lacuna relating to victims and victims’ rights that has been identified in this Bill.

What sort of politician would I be to simply offer criticism and not to offer a solution? The Minister of State will be glad to hear I do have a solution for him. I have a Bill sitting in the Bills Office awaiting approval. I had started work on it before the issue of the national referral mechanism reform was mentioned. This Bill addresses human trafficking and tries to improve the State's response to it. It puts into legislation the Delphi indicators, which are important operational indicators for improving the identification of victims of trafficking. It seeks to improve the system and address the problems Ms Justice Iseult O'Malley commented on in 2015. It provides for a more victim-centred process of identification and for guardians ad litemfor children and child victims of trafficking. It details supports and provisions that we can give to victims, and would be obligated to give to them, in line with best practice in legislation in other jurisdictions.

We need to look at these issues. I hope we can improve this Bill on Committee Stage by making amendments that will expand the legislation, include supports for victims and address the lacuna and gap with regard to silence in relation to victims. As I said, I have several legislative proposals I can pass on to the Minister of State which will do just that.

Photo of Martin BrowneMartin Browne (Tipperary, Sinn Fein)
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I welcome this Bill, which I will also support. One point must be emphasised, however. The purpose of the Bill is to bring Ireland in line with EU directives to strengthen the State's ability to fight the smuggling of people. However, issues affecting the welfare of asylum seekers remain woefully unaddressed and need to be tackled. Recently, we have heard horrendous accounts of the consequences of people smuggling. Let me make no bones about this - people smuggling is a big business with no morals and no regard for human welfare or dignity. That was made desperately and horrifically vivid to us in Essex two years ago when 39 adults and children died as they were being illegally smuggled. As far back in 2001, this horror visited our shores when eight lifeless bodies were discovered among 13 people in the back of a lorry in Wexford.

The profits made by the smuggling of people contribute to the international drugs trade, enforced prostitution, exploitation and other illegalities, such as violence and conflict. People smuggling must be tackled in a way that tells anyone involved that the full force of our judicial system will come down upon them if they engage in this inhumane and illegal business. That is why I am supportive of the Bill and the criminal sanctions it will enforce.

I also acknowledge that the Bill deals with the circumstances in which a person is brought into the country by a designated organisation for the purposes of seeking asylum. That is welcome. However, when giving this status to such an organisation, we must ensure it is extremely well vetted to avoid leaving room for exploitation.

As worthy and necessary as this Bill is, it does not address the problems that remain in the system for those who come to this State in search of asylum. At the Joint Committee on Public Petitions, we have regularly discussed the malfunctioning direct provision system. Thankfully, that is being transformed. What concerns me is the rate at which change is taking place. In September, the committee was told by the Irish Human Rights and Equality Commission that, as of the end of June, 4,430 international protection applicants were awaiting an interview.

That is too many and the issue must be addressed rapidly. An asylum seeker should be entitled to legal advice when arriving at reception stage. We were told by the Law Society of Ireland that too many people were still having to go through the preliminary international protection interviews without having received legal advice ahead of them. Vulnerability assessments formed the basis of a trauma-informed approach to international protection but Ireland was in breach of the EU's reception conditions directive for a number of years due to inaction. In December 2020, a pilot to tackle this was commenced and it was extended to all applicants from the beginning of February. With up to 886 applications received by the International Protection Office by September, only 268 applicants had entered the vulnerability assessment, with 161 completed and 107 ongoing. I do not want to criticise the efforts of the Aire to make good on the failures of the direct provision system but I felt that I should mention it. As welcome as the Bill that we are discussing is, it is not a panacea for the areas where we are still failing those who come to us for protection.

2:15 pm

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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The Bill is welcome and, like others, the Social Democrats will support this Bill. It is regrettable that we are at the 11th hour with this Bill coming forward. The Minister of State happens to be the one in the seat who is taking the criticism that can really be applied to his predecessors, because this has gone on for a long time. We have a serious problem in Ireland with human smuggling and human trafficking. With the current frameworks for identifying smuggling and trafficking, we do not have a clear picture of just how badly the State is failing vulnerable people. There are far more victims of human trafficking in Ireland than are officially recorded. A report by Mary Immaculate College has shown that numbers of adults and children trafficked into Ireland between 2014 and 2019 is at least 38% in the Republic of Ireland and 20% higher in Northern Ireland than is officially recorded by authorities. There is nothing in the Bill about the vital need for a comprehensive identification procedure for smuggled and trafficked people. We can strengthen the offences all we want but unless we can properly identify the people at risk, the State will continue to leave people vulnerable to exploitation and abuse. I note the Minister of State's comments and opening remarks that this is one part of a number of things that need to be done.

The failure to identify victims and protect people who claim to be victims of human trafficking was made clear years ago in the P case. The case concerned a Vietnamese woman who was discovered by gardaí locked in a grow house, charged with drug offences, and who spent two and a half years in custody. The woman claimed to be a victim of trafficking. The failure of gardaí to recognise this meant that she was deprived of the protection regime for victims of human trafficking. The court found that the State's administrative scheme for the recognition and protection of victims of human trafficking was inadequate to meet the obligations under EU law aimed at combating trafficking of human beings. Human smuggling and human trafficking are distinct issues. I agree with the Minister of State about that. He referred to it in his opening statement. It is important that we recognise the differences. It is recognised in the UN report.

As the Minister of State said, human smuggling is a crime which takes place only across borders where migrants are assisted to enter or to stay in a country illegally in exchange for some financial or material gain. People smugglers profit off the desperation or desire of migrants who are attempting to reach a better life in a new country. The crucial aspect of smuggling is that people consent to the smuggling venture, although in many cases the level of danger they experience in the crossing is not initially known to them or to their families. That is the case in the case referred to repeatedly here, of the Vietnamese people who unfortunately lost their lives in that tragic incident in Essex. People are put in often deadly conditions by smugglers, such as hostile sea journeys in unsafe vessels and often become the victims of severe human rights violations in the course of their journey. We saw that play out in the Mediterranean in recent years, with the perilous position and the loss of life there. Our Defence Forces, specifically the Naval Service, had an important role in intervening there that we were proud of.

These migrants are not criminals. It is important that we keep that fundamental truth in mind when legislating and debating human smuggling. Under international law, Governments are required to criminalise the smuggling of people not those who are smuggled. However, the boundaries between trafficking and smuggling often blur, since the crimes are often perpetrated by the same criminal networks along the same routes. I thank that Deputy Costello's point may well have been referring to that. Human trafficking involves the recruitment, movement or harbouring of people for the purpose of exploitation, including sexual exploitation, forced labour, slavery and even organ removal. The majority of victims of trafficking are women and girls. Global reports also indicate that children with disabilities are more likely to be trafficked.

In its 2021 report, the US State Department continues to list Ireland as a second-tier country in its trafficking of persons report. It is one of only two countries in the EU to receive such a poor ranking, the other being Romania. The report makes a number of recommendations and explains the rationale for the designation. It is hard to argue with its logic. It is hard to argue that we have not been failing victims of trafficking for years. That blame rests solely with the State. We have failed to identify victims properly, to enforce existing laws and to prosecute trafficking offences. I acknowledge that there was a prosecution in recent months. The lack of prosecutions has contributed to smugglers and criminal networks viewing trafficking and smuggling as low-risk offences with high profit margins. International best practice recommendations should be central to our mindset when discussing smuggling and trafficking. With that in mind, it was worrying to see the Irish Human Rights and Equality Commission's, IHREC, submission to the general scheme of the Bill. It stated that the Bill is silent on the rights and protections of smuggled persons. That is a damning statement. IHREC is the State's human rights watchdog. It is also the national rapporteur on the trafficking of human beings. It is the expert body on human rights and trafficking in this country. I implore the Minister of State and his Department to look further at the recommendations about how this Bill can be strengthened.

Any measures that we introduce to control the entry and residence of irregular migrants must also be completely compliant with human rights and equality principles. Regardless of how people enter the country, they hold fundamental rights under the Constitution and international law. These rights include the right to life, the right not to be subjected to torture, cruel, inhumane or degrading treatment or punishment, the right to liberty and security, the right to asylum, the right to fair procedures and the right to an effective remedy. The State continues to fail in this regard. We need only look at the conditions in direct provision centres or the appalling standards on so many of our fishing trawlers to see just how severely we have failed these people. We saw a story on social media in the last few days about how food is being dispensed in a direct provision centre. It is unacceptable for people to be given food in plastic bags. That kind of thing should not happen. I acknowledge that the Government has an ambitious programme, although I would like to see it happen more immediately. There is a significant change under way but that kind of thing is not acceptable.

I recognise that the Minister of State has taken some recommendations on board but many have not been.

Many of the recommendations were raised on Committee and Report Stages in the Seanad and I suspect they will be raised in this House. There were a number of amendments in the Seanad that the Minister of State indicated the Department would consider and that they would be returned to the Seanad when it was debated in this House. Will the Minister of State provide an update in his summing-up as to what he intends to bring forward? That may minimise the number of amendments put down.

I ask the Minister of State to look at including specific provision in the Bill for rights and protections for smuggled persons and rights of women, children and disabled people. There is often a desire in Departments to keep Bills somewhat condensed and to acknowledge shortcomings and a need to fix them, but insist they will be fixed at a later stage in another piece of legislation. We have an opportunity and responsibility to make this Bill as robust as possible, to protect the rights and lives of people who are smuggled, to ensure smugglers are criminalised and to ensure NGOs and human rights workers are not swept up by criminal charges.

A number of concerns were raised by IHREC that there was not enough safeguarding in place to protect people providing assistance to smuggled people for humanitarian and familial purposes. I note some of the comments in the opening statement. The debate in the Seanad seemed to indicate the Minister of State was reluctant to revise the definition of the smuggling offence so that more discretion could be given to the Judiciary. I respectfully ask him to reconsider his stance. A role of this House is to legislate, to make the law as clear as possible and to ensure laws are fair and appropriate. Leaving definitions purposely vague does not sit well with me. There is a risk of criminalising people who are attempting to help those in dire need.

We have seen many cases of this across Europe in recent years. One such case that comes to mind is that of Seán Binder, who grew up in Castlegregory in County Kerry. Seán was a rescue diver and trained in maritime search and rescue. He volunteered on the civilian rescue operations in Lesbos in Greece 2018. He was arrested and spent 106 days in a Greek jail before being released on bail following a campaign by friends, family, supporters and various human rights organisations. The charges against him include assisting human smuggling networks and he faces a potential 25 years' imprisonment. His role in Greece was to swim out from shore and rescue those struggling in the water. He also retrieved bodies of people who had drowned.

While this Bill deals specifically with the offence of human smuggling, the debate naturally includes human trafficking and it would be remiss to discuss human trafficking without talking about the appalling conditions in the Irish fishing sector. In the US State Department's report which I referenced earlier, the Irish fishing industry was specifically called out for leaving undocumented workers vulnerable to human trafficking. In the words of the International Transport Workers' Federation, a union representing fishers working at sea and on land:

The Irish government has allowed whole sectors of the economy to develop a low-wage model that can only be sustained by bringing in vulnerable workers from Asia and Africa. By their inaction, the State is allowing unscrupulous employers to regard these workers as totally expendable, as people they can hire and fire with impunity because of the inability or unwillingness of state agencies to uphold the law.

The widespread abuse of migrant workers in the Irish fishing industry has been acknowledged for years. Reports were first published in The Guardianin 2015, leading to a Government task force and the introduction of the atypical working scheme, AWS, which offered 500 12-month renewable permits to migrants already working in the fishing industry. If offered the permits to external applicants hoping for work thereafter, in 2016. A review of these measures was published in Maynooth University on 19 October and concluded that despite policy changes, the problems persist. From 2016 on, the US State Department, the International Transport Workers' Federation, the UN special rapporteurs and the Council of Europe have all expressed the view that the AWS did not have enough safeguards in place to prevent human trafficking and exploitation. Despite some changes to the scheme over the years, the workers in the Maynooth report say that conditions have worsened. The new regulations are not enforced and when inspectors are sent on board boats, migrant workers feel unable to talk to them or are prevented from doing so. There is a power and inequality issue there. One worker in the system said it was like a visa into slavery. We have to deal with that comprehensively.

The Workplace Relations Commission, WRC, carried out 454 inspections up to June 2021 on fishing boats and found that 323 instances breached conventions. These reports have been consistent. They have come from workers, journalists, unions, international bodies and human rights organisations. The State refuses to take them seriously and the Minister of State, Deputy Naughton's, response to the US State Department concerns about human trafficking in the fishing sector is concerning. She said:

No evidence has been found to support the allegations of widespread human trafficking in the fishing industry and it is worrying that the [US] State Department chose to place weight on one voice and not ... take account of the balance of stakeholder assessment – including assessment by NGOs active in Ireland in [trafficking of human rights].

We need an urgent review of that and owe it to the people who feel they are in a vulnerable position.

We often compartmentalise legislation and think that is done and that box is ticked. I welcome the fact the Minister of State said in his opening statement that this is one of a myriad of things that needs to be done. We have an obligation to put this legislation in place and a gun to our head in terms of time. We equally have an obligation to deal with this issue comprehensively and to deal with the substance of the problems. Part of that is understanding the extent of it, how we record it and how we deal with people in a humane way, putting victims' rights at the centre.

2:25 pm

Photo of Jennifer Murnane O'ConnorJennifer Murnane O'Connor (Carlow-Kilkenny, Fianna Fail)
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I thank the Minister of State. People smuggling is already an offence under the Illegal Immigrants (Trafficking) Act 2000. However, this Bill fulfills additional requirements on Ireland from the EU and provides for the implementation of three international legal instruments in the area of people smuggling. I am supportive of this and urge its swift passage.

Ireland needs to provide an effective international response to the growing problem of people smuggling. We must be clear that people smuggling is not trafficking. Trafficking is carried out for the purpose of exploitation and need not involve illegal entry to a State. People smuggling involves illegal entry and exploitation. When someone is involved with a people smuggler, he or she is a victim and we need to protect such victims. People smuggling costs lives and is a business model. We need to put them out of business and stamp it out.

This Bill stipulates that any person who deliberately assists unauthorised entry, transit or residence of a non-EU national in the EU will be sanctioned unless they do so for humanitarian reasons. Seeing the balance of supporting humanitarian efforts while tackling people smuggling is most welcome. In 2020, UN expert Siobhán Mullally told the General Assembly that Covid-19 increased the risk of exploitation of women, children, migrants and other vulnerable people:

A new model of identification and early support and assistance is needed, one that recognises that vulnerability is shaped by discrimination and by the inability of a person to gain access to social protection and effective remedies.

That is exactly what she stated.

I also agree that we must make a lot of changes to the migration policies and radically refocus international human rights law and practice to combat criminality. The Bill is very supportive of that. The reality in these crimes is that in most cases payment to be smuggled into Ireland will have been made outside the State. Evidence of payment is difficult to find. It is also the case that people being smuggled are often unwilling to be witnesses for the prosecution, which makes it all the more difficult. We must do all we can to safeguard the victims from the abuse, financial exploitation and even death which can occur with smuggling.

I am happy to see in section 5 a provision in respect of the definition of what it means to "assist the presence", which in sections 6 and 7 ensures that no doubt exists that the ordinary provision of goods and services including, for example, rental accommodation does not constitute an offence even if the person providing the goods or service is aware that the receiver is unlawfully present. Sometimes people will help the victims who are not the ones who have smuggled. That is very important because there is a difference. People smuggling is a business model and it is largely the preserve of organised criminal gangs whose sole motivation is profit. Women and children are often the most vulnerable of their prey and we must do all we can to protect such vulnerable people. The criminals take advantage of vulnerable and desperate people who are only seeking a better life than the one they are living now.

2:35 pm

Photo of Sorca ClarkeSorca Clarke (Longford-Westmeath, Sinn Fein)
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I welcome the opportunity to speak today on the Criminal Justice (Smuggling of Persons) Bill. In previous years, any island nation such as ours, was seen as a smuggler's opportunity, but at that time the concern was primarily about illegal narcotics and goods and that has rightly, if somewhat slowly, shifted to also focus on people and the illegal trafficking of human beings.

It is beyond obvious that appropriate resources must accompany this legislation and that those who engage with people who have been trafficked are trained to a standard that does not inadvertently increase or compound trauma. The Garda National Immigration Bureau needs additional resources and training that is regularly updated in line with best practice, as does the International Protection Office, INIS social workers and the specialist gardaí who investigate these cases. We must ensure that both those who have been trafficked and those working on such cases are equipped and supported throughout the duration of any subsequent process. As recently as September, it was reported that specialist detectives were investigating a "growing number of illegal immigrants who are being forced to work in the sex industry in Ireland". A major crackdown on human trafficking resulted in the rescue of 38 people in the previous year.

My constituency of Longford-Westmeath has been mentioned here this afternoon. It was the location of the first conviction under the Criminal Law (Human Trafficking) Act 2008, following a six-week trial in which two people were found guilty of human trafficking offences. The judge in the case referred to the individuals who had been trafficked as "indentured slaves", who were coerced into a sustained and degrading period of prostitution, which did great harm to all victims for financial gain. The judge acknowledged also that the individuals had no real alternative but to accept their exploitation. Those words resonate with me. Nobody should accept exploitation. It was a truly tragic and disturbing case. I take this opportunity to commend the survivors on their bravery, courage and resilience following what can be only described as horrific exploitation. I also acknowledge the valuable work of all involved in securing the conviction.

We urgently need to get our house in order regarding our obligations to end human trafficking, but we must also improve the related legal, criminal and support processes. While our response must be robust, it must also be fit for purpose and it must be one that reflects the extremely unpalatable reality that human trafficking happens, and it happens here, as we saw in Westmeath. We may have had the first conviction, but it was not the first incident. Convictions like this must become much more common.

Photo of Jim O'CallaghanJim O'Callaghan (Dublin Bay South, Fianna Fail)
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I commend the Minister of State, Deputy James Browne, on bringing forward this important legislation. As my colleague, Deputy Murnane O'Connor stated, it is the case that laws existed to criminalise human smuggling and they were contained within the Illegal Immigrants (Trafficking) Act 2000. However, that legislation covered a lot of issues, including human trafficking as well as human smuggling. It is crucial that when we are dealing with something as important as human smuggling and human trafficking that we distinguish between them and that we have individual criminal justice responses in respect of each of them. That is why it is so important that we are bringing forward this legislation today which deals specifically with human smuggling. If we are trying to establish a criminal justice system that identifies and emphasises the wrongdoing associated with certain criminal acts, it is helpful if the legislation deals exclusively with the act we are trying to prohibit and criminalise. That is why there is a benefit in separating the two crimes of human trafficking and human smuggling and, in respect of the latter, that we have a specific piece of legislation regulating it.

It is hard to decipher which crime is more dangerous. Both of them are deadly from the point of view of the unfortunate people who are subjected to being trafficked or smuggled into another country. If somebody is smuggling individuals into this country and there are tragic consequences, as can happen, such as death, it is the case that there will be other penalties available and other crimes can be prosecuted in respect of those deaths. We saw that in the UK recently in respect of the tragic deaths of 39 Vietnamese people arising from them being smuggled into the United Kingdom.

There are also benefits in this legislation in that it specifies the type of actions the State can take in to ensure we can vigorously confront those people who are involved in a vast criminal enterprise in trying to smuggle people into this country. Under this legislation, power will be given to the relevant authorities in respect of Irish ships or ships sailing under an Irish flag to seize documents and other pieces of relevant evidence in respect of those ships.

This is an international business and criminal enterprise. It is funded by the unfortunate and tragic circumstances that so many people around the world are experiencing at present. In years to come, when we look back at the 21st century, one of the most abiding images will be of desperate people trying to leave war-ravaged or impoverished countries or regions to try to make a new life for themselves and their families. We see it in terms of people trying to cross the Mediterranean to get into Europe. Now we see it with people trying to cross the English Channel to get into England, and we have seen it for many years at the border of Mexico and the United States with people from Central America and South America trying to get into the United States of America and Canada.

All of these actions share a number of characteristics. First, we have people who are leaving desperate regions. Second, the reason they are leaving those desperate regions is predominantly because of maladministration and bad governance by the governments in the countries from where they are coming. That is a consistent feature when one looks at the migrant crisis we face today and that these people are facing. They are not leaving for purely arbitrary reasons; they are leaving out of necessity. They are leaving Syria because it is a war-torn country. People are leaving Nicaragua and Venezuela because of the inability of the governments there to ensure that the quality of life is available for them in those countries. That is a huge challenge, not just for the countries that are providing the maladministration, but for those countries to where people are seeking to come in Europe, the United Kingdom, the United States of America and other countries around the world. Migrants are desperate to have the opportunity to live a better life, in the same way as Irish people who left this country in the 19th century when we left as a result of the political crisis and the war ravages that were caused here at the time as well as the Famine. We must recognise that the solution to human smuggling and human trafficking lies at a much higher international level.

In fairness to the Minister of State, Deputy James Browne, I know neither he nor the Government can be expected to seek a resolution in that respect. However, when we look at how the international community has come together to deal with the climate crisis and the recent conference in Glasgow, surely we are crying out for a similar type of convention and agreement in respect of the migrant crisis we see around the world. It cannot simply be the case that the migrant crisis is to be resolved by countries deciding that huge numbers of people will migrate to different parts of the world. That may be a consequence and characteristic but there is more to it. There must be consistent and good levels of governance and management in countries around the world. This may appear naïve or too optimistic but we must accept the crisis of migration will continue throughout the 21st century unless we put in place some form of a more coherent system to respond to the issues affecting people leaving those countries.

As mentioned, probably the most important people to consider when it comes to tackling smuggling are those who are being smuggled. The fact they have paid money and are doing this consensually or with their agreement does not take away from their desperation. They are in an appallingly desperate position. I am sure it is the case that when they arrive here, having been smuggled into the country, they should be able to avail of the international protection system that operates here. I know it is improving and the Minister of State is doing his best to ensure it becomes much more effective.

The matter of international protection here has probably been alleviated as a result of the pandemic. The numbers are down significantly compared with what they were two years ago. If people find themselves in the unfortunate and horrific position of being smuggled into this country by criminals who have no consideration for the health of the people being smuggled, it is imperative on this State to protect those people when they arrive.

I note the Irish Human Rights and Equality Commission was critical of the Bill because it does not contain any specific references for migrants but as the Minister of State knows, those protections are elsewhere. They also must be added to.

2:45 pm

Photo of Cormac DevlinCormac Devlin (Dún Laoghaire, Fianna Fail)
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I wholeheartedly agree with my colleague, Deputy Jim O'Callaghan, on his remarks on the Bill, including the assumption of the challenges not only facing us here in Ireland but right across Europe. A higher level must be achieved. I thank the Minister of State for his attendance throughout this discussion this afternoon of this important Criminal Justice (Smuggling of Persons) Bill 2021.

I support this Bill, which provides for the implementation of three international legal instruments in the area of people smuggling. These three instruments are aimed at providing an effective international response to the growing problem of people smuggling. Under these instruments, any person who deliberately assists unauthorised entry, transit or residence of a non-EU national in the EU is to be sanctioned unless doing so for humanitarian reasons. It is an important point that the Minister of State made in his opening remarks that there is a safeguard for those who are undertaking that extraordinary work.

As noted, people smuggling differs from human trafficking in that trafficking is carried out for the explicit purpose of exploitation and need not necessarily involve illegal entry into a state. People smuggling is not defined in terms of exploitation but the process of people smuggling typically involves serious exploitation, suffering and a risk of physical harm and death. People smuggling frequently involves the imposition of extortionate fees by smugglers, as we heard, as well as exposing the illegal migrants to severe danger in clandestinely entering states. This was demonstrated by the recent tragedy in Britain where 39 people died in a container in Essex and the Wexford tragedy of December 2001, which happened in the Minister of State's constituency. Those images haunt everybody and serve to highlight the challenges faced by those individuals. As my colleague has said, they have paid to get to where they think their destination will be.

Members have noted the high estimates of numbers of people smuggled into the State. As a State we should do more to streamline the Irish Naturalisation and Immigration Service, INIS, process and systems to help vulnerable people without papers regularise their position. I highlight the remarks from Deputy Howlin earlier about the need for greater co-operation between the INIS and Deputies from across the House, which were well made.

In many cases Members of this House are the last option for those individuals, particularly the most vulnerable people. Agencies should not be using the General Data Protection Regulation and other regulations as a pretext for avoiding transparency and accountability. Personally, I have found INIS officials very helpful but it is clear the office is stretched and requires greater resources and support. Perhaps this is something the Minister of State can raise with colleagues in advance of the next budget.

That said, this is very worthwhile and needed legislation. It is important that Europe is working collectively on it. Much more needs to be done. The Minister of State and the Ceann Comhairle are aware that on 19 October I restored the Sex Offenders (Amendment) Bill 2018 to the Order Paper. That deals with people leaving this jurisdiction for other reasons but such matters must be viewed in the round. Any effort in this space by the State must be welcomed and we must do more in this space to protect vulnerable individuals. As we have said, they believe they are heading to a better destination or life but are confronted with some pretty horrific reality. They feel they cannot do anything about it. We need to hear more about the Health Service Executive anti-human trafficking team and promote it as our existing services need greater support and promotion. That is so people who feel exploited and vulnerable can report their position and, we hope, get the support and assistance they need and deserve.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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If nobody else is offering to speak, I will call the Minister of State to reply. I apologise, as Deputy Pa Daly is offering.

Photo of Pa DalyPa Daly (Kerry, Sinn Fein)
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I have become fairly thick-skinned over the past few days.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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I thought you were somebody else.

Photo of Pa DalyPa Daly (Kerry, Sinn Fein)
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Bhíomar ag caint mar gheall ar go leor Billí cosúil leis sin atá ceangailte le coir thromchúiseach go hidirnáisiúnta an bhliain seo agus tá an Bille seo ceangailte leis sin chomh maith. Ar thaobh amháin, tá na dúshláin a fheicimid leis na coireanna sin nuair a bhíonn orainn obair le tíortha eile ach, ar an taobh eile, tá orainn ár bpolasaí féin a fháil amach.

We have had to speak to a number of Bills like this connected with transnational crime this year and the Bill is very much in keeping with that. On one hand, the challenges posed by the crimes of trafficking persons very much require collaboration. On the other hand we must mark out our own policy, informed by the humanitarian reasons why so many people are falling into the hands of traffickers. As long as there continues to be war and bloodshed around the world, especially with climate change, people will seek to move across the world and will, in general, gravitate to the global north. The 2020 trafficking report from the US State Department indicates this clearly. The Government has not obtained a trafficking conviction since the law was amended in 2013, which weakened deterrence, contributed to immunity for traffickers and undermined efforts to support victims to testify. Perhaps this Bill may come some way to addressing the problem but resources must be provided as well.

Kerry has one of the longest coastlines in the entire country, making it a prime site for potential trafficking. What plans are being made to address this and provide for anti-trafficking efforts along the west coast as part of ongoing reforms? As mentioned by Deputy Devlin, I am also interested in the HSE team in place to help the people who are victims of human trafficking.

The recent release of the Facebook papers highlighted how it and other social media platforms have been used as markets for people. Sometimes we are a little deferential to these companies but as a key regulatory and economic hub for the newly renamed Meta, we have a serious role to play in addressing the use of these social networks in general and particularly in this context when they are used by traffickers. I look forward to seeing that.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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I mistook the Deputy for Deputy Ruairí Ó Murchú when he had his mask on.

Photo of Pa DalyPa Daly (Kerry, Sinn Fein)
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I am not here half as much.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Before calling on the Minister of State to reply, I find myself unable to resist referencing the statements made by Deputies Howlin and Devlin on INIS. It strikes me as extraordinary that we have created an entity and populated that entity, and yet it is not possible for us to have a conversation with a live human being within that entity. The only method of communication is by way of email, which seems an extraordinary development.

2:55 pm

Photo of James BrowneJames Browne (Wexford, Fianna Fail)
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I thank the Deputies for their constructive and, for the most part, quite positive comments on the Bill. We are bringing the Bill through the Houses and it has been through the Seanad already. A number of issues have been raised and I will try to address some of those. I will also have an opportunity to address some of them in more detail on Committee Stage.

A number of Deputies raised the important issue that those who are being smuggled are often in a desperate situation. At a minimum they are seeking a better life for themselves, as Deputies Martin Kenny, Howlin, Jim O'Callaghan and others pointed out. We have sought to ensure the Bill strikes a balance in that it will get prosecutions against the smugglers who are seeking to get a financial benefit from smuggling people but without putting those who are being smuggled into any risk of being prosecuted themselves and that they would feel they are in a safe situation. The challenge under the existing legislation is that it has been almost impossible to prove that such activities are done for profit or gain because those payments and profits are often made in third countries and because those who have been smuggled have often been fearful of coming forward to make any statements. The purpose of this legislation is to make it easier to prosecute the smugglers and we have taken significant steps in the Bill to protect the smuggled people, who are often exploited, and ensure they are protected from prosecution.

Deputy Martin Kenny also raised the issue of regularisation and we will be publishing the new scheme for the undocumented in Ireland. We will be able to be proud of that scheme and it will be one of the most important schemes anywhere in the EU. We have a history of Irish people being undocumented in other countries, particularly in the United States of America. If the country is going to continue to seek the regularisation of the undocumented Irish in America, then we have to lead by example. We will be publishing that scheme to regularise the undocumented in Ireland soon. Those people are here and they are living and working here so we have to bring forward such a scheme, which is almost ready to be brought to Cabinet.

I would like to clarify one issue in particular. It is a general defence in the Bill for people acting out of humanitarian grounds, and the reason for the general defence is that if we start putting in specific situations, it becomes very black and white. We can trust our Director of Public Prosecutions and judges to ensure those acting out of humanitarian grounds are not convicted for doing so. That is why it is a general defence in the Bill as opposed to specific situations being mentioned. We are not creating a situation where we are designating particular groups either. If we were to start designating individual NGOs, for example, we would have situations where individuals would find themselves acting out of humanitarian assistance to protect somebody who was being smuggled but may then find themselves being convicted of an offence. We are confident the way the general defence is drafted will protect anybody acting out of humanitarian grounds. The Bill will get that balance right while also ensuring we can prosecute and convict those who are carrying out smuggling on a for-profit basis and who are exploiting people.

A number of other Deputies raised important issues around ensuring there is compassion, and all of these issues will be addressed on a compassionate basis. These are, as Deputy Howlin pointed out, real and ordinary people who are often suffering and who want a better life for themselves. We have to treat people as humanely as possible and that is exactly what we are trying to do in the Bill.

I disagree with Deputy Costello who effectively said there is no difference between human trafficking and people smuggling. There is a clear difference and it is important the distinction between the two is maintained. People smuggling is the facilitated irregular movement of people across borders for a financial or other benefit and occurs where the person being smuggled is doing so with consent. That does not mean that person is not vulnerable. He or she can be very vulnerable and he or she is at risk of being trafficked as well but there is an important distinction. Human trafficking involves the recruitment, transportation and exploitation of a victim. You do not even need to be a non-national to be trafficked. You can be trafficked within this country. That is an important distinction that remains but we want to ensure in this Bill there are no gaps between smuggling and trafficking that anybody can exploit.

As Deputy Catherine Murphy rightly pointed out, this is only one part of a lot of things we are doing to protect people, whether they are being smuggled or trafficked. As I stated earlier, the new national action plan on human trafficking; the development of training, through NGOs, for front-line staff in industries such as the hospitality, airline and shipping sectors who may come into contact with trafficked persons; the improvement of supports for victims through the implementation of the Supporting a Victim's Journey programme; and a number of other important steps are being taken across the Department of Justice to ensure people are being protected, whether they are being smuggled or trafficked.

A number of Deputies raised the issue of dealing with Immigration Service Delivery, ISD, previously known as INIS, and trying to get information from it, and a lot of that criticism is legitimate. The staff in ISD are doing their best but the system as set up has almost become akin to a situation of pen pals, as was once said to me. There is that much correspondence going on yet people cannot find out where they are. The reason for that is we do not have proper ICT systems around ISD. A lot of people are on different applications that have different stages. I recognise that and we have carried out a review of the entire system and we are upgrading those ICT systems. Funding was put in at budget time for additional immigration staff so that we can streamline this entire system, so that people will be able to readily identify where they are, and so that we do not have a number of different sections of ISD writing to various people on that.

The general data protection regulation, GDPR, section was also raised and we cannot change that, but all that is required from a Deputy is to demonstrate he or she has the consent of the person concerned and then we can provide that information. I have had responsibility for immigration for the past six months and it has gone back to the Minister, Deputy McEntee, since Monday. Any time I saw a letter coming my way going out to a Deputy telling him or her that information could not be provided, I made sure a line was attached to the letter to state that if the Deputy got the consent back to us, we would then provide the information. That is one way to resolve that issue.

We are coming up to the anniversary of the death of those poor victims in my county of Wexford. Deputy Howlin eloquently described the horrors of what happened in 2001 with those people who were smuggled and died in Wexford. It is horrifying to see that kind of tragedy happen, and such tragedies should not happen. They happen because smugglers feel free to carry out this smuggling and exploitation of people. That is what we are determined to bring to an end with this Bill.

I thank all the Deputies for their contributions. There will be further opportunities on Committee Stage to assess some of these issues in a more detailed manner. Deputy Catherine Murphy raised the atypical working scheme in the fishing sector. Along with the Minister of State at the Departments of Enterprise, Trade and Employment and Social Protection, Deputy English, and the Minister for Agriculture, Food and the Marine, Deputy McConalogue, I initiated the process of carrying out a review of that scheme. It has been in place for about five years and it was welcomed at the time. It was brought in urgently and was needed, but the principal officers in the Department of Enterprise, Trade of Employment, the Department of Justice and the Department of Agriculture, Food and the Marine have met on a couple of occasions to see in what format a review could take place and how that could be carried out. That matter has gone back to the Minister, Deputy McEntee, as all immigration matters have, and I am sure she will pursue it with the same determination I have in recent weeks.

As I have said, I look forward to having a more detailed consideration of the various sections on Committee Stage. Overall, this is a positive Bill and part of the broader remit of what we are carrying out in the Department of Justice at present.

Question put and agreed to.