Trevor Ó Clochartaigh (Sinn Fein) | Oireachtas source

I still have concerns about this. There are other amendments involved. Amendment No. 44 relates to altered and-or substituted identity documents. This aims to prevent attaching a penalty to a means by which many asylum seekers and refugees access protection in accordance with article 31 of the 1951 Refugee Convention. The insertion of "altered or substituted identity document" expands the categories of documentation grounds for detaining a person. This is wider than that contained in the Refugee Act 1996, which only contains reference to forged documents under section 9(7)(f) of that Act. The IRC receives reports that agents and smugglers who facilitate the transfer of asylum seekers to the State force them to hand over their own original identity documents in return for substituted identity documents, as defined by section 20(18) of the Bill. The subsection, as drafted, would give immigration officers and An Garda Síochána the power to arrest persons in such circumstances and detain them. This is contrary to the State's obligations under article 31 of the Refugee Convention. If the amendment was inserted in the Bill, the definition of "substituted identity document" under section 20(18) would also be deleted. Smugglers and traffickers often force people with protection needs to exchange their original documents for substitute documents as defined under section 20(18). Making it an offence to possess, or to have possessed, such documents would unreasonably penalise persons who have no choice but to rely on such smugglers and-or traffickers to escape persecution and-or to reach a place of safety in their country of origin.

The purpose of the amendment No. 47 is to reinstate the District Court's power to detain under Refugee Act 1996, as amended. A total of 21 days is more than double the time the District Court was empowered to detain an applicant under section 9(10) of the Act. The State's power to interfere and-or restrict an individual's right to liberty must be proportionate and reasonable. An individual's right to liberty is protected by article 40.4 of the Constitution, article 5 of the European Convention on Human Rights and the International Covenant on Civil and Political Rights. Restricting or otherwise interfering with that right is a matter of the utmost seriousness. Section 20(3)(a) would almost certainly result in persons with protection needs being detained for periods of up to three weeks renewable pending the determination of their application for protection. This is a disproportionate and unreasonable interference with the individual's right to liberty and, moreover, with his or her to access protection. The IRC is concerned that such periods of detention would hamper and-or otherwise impact on his or her application for protection and that it would aggravate post-traumatic stress disorder and related symptoms of trauma.

Amendment No. 50 relates to arrest without warrant for failure to comply with conditions. This reinstates the power to detain given to members of An Garda Síochána under the Refugee Act 1996, as amended, while limiting unnecessary expansion of its power to arrest without warrant. As I recommended on the previous amendments, the power to arrest without a warrant is an extraordinary measure. Section 29 seeks to expand the categories of persons An Garda Síochána may arrest without warrant from section 21, which is contrary to the right of liberty.