Seanad debates

Wednesday, 13 March 2019

Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019: Committee and Remaining Stages

 

11:30 am

Photo of Simon CoveneySimon Coveney (Cork South Central, Fine Gael) | Oireachtas source

I have quite a long response, which, while technical, I will read into the record because it is important that Senators receive a full response. I will not support amendments Nos. 23 to 25, inclusive, but I will explain why.

The provisions in sections 95 and 96 are inserted for the purpose of correcting a legislative lacuna in the legal basis for non-refoulementconsiderations. Non-refoulementis the practice of not returning a non-national to a country in which he or she is liable to be subjected to persecution or where the life or freedom of the person would be put at risk. Under section 5 of the Refugee Act 1996, this applied not only to persons subject to that Act but also to persons removed from the State under the Immigration Act 1999 and section 5 of the Immigration Act 2003, that is, it applies regardless of whether the person is a refugee or asylum seeker.

The introduction of the International Protection Act 2015, which repealed the Act of 1996, inadvertently removed the legal basis providing for non-refoulementwithin the Acts of 1999 and 2003. In S.G. (Albania) v. the Minister for Justice and Equality, the High Court identified administrative issues with the enactment of the International Protection Bill 2015, the transitional provisions relating to the Refugee Act 1996 and the domestic legal basis for the consideration by the Minister of the principle against refoulement. The court identified that the Minister's reference to the legal basis for the prohibition of refoulementwas incorrect and that these issues had existed since 31 December 2016. The significance of that date is that it was the date on which the inadvertent lacuna arose when the International Protection Act 2015 was commenced and as a consequence, the Refugee Act 1996, including the refoulementprovision of section 5 of the Act of 1996, was repealed. Its legal base was inadvertently removed and, therefore, was no longer in law.

Regardless of these administrative issues, it has remained the policy and practice of the Minister for Justice and Equality to apply non-refoulementprinciples to all removals from the State, in conformity with our constitutional and international obligations. The Minister is nonetheless satisfied that legal certainty is required in the area, that the lacuna needs to be corrected as a priority, and that we should use this legislation to do so, the reason for which I will explain. The purpose of sections 95 and 96 is to restore the position whereby there is a legal base to the non-refoulement consideration for all persons being removed from the State, not just in the protection area but including all deportations and persons refused permission to enter the State.

I cannot accept the proposed amendments. Amendment No. 24 is not consistent with the definition of non-refoulementapplied under section 50 of the International Protection Act 2015, which states:

(1) A person shall not be expelled or returned in any manner whatsoever to the frontier of a territory where, in the opinion of the Minister—(a) the life or freedom of the person would be threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion, or

(b) there is a serious risk that the person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

The definition is based on principles of international law and encompasses serious forms of sexual and gender-based violence, female genital mutilation and the best interests of the child, which are fully considered in this context. On the basis of advice that the Minister for Justice and Equality has received from the Office of the Attorney General, it is not necessary expressly to include forms of sexual and gender-based violence or female genital mutilation, which are covered by inhumane or degrading treatment or punishment. As for the proposal to include "flagrant denial of a fair trial" within the definition, this comes within the scope of refoulement, as held by the European Court of Human Rights in Othman (Abu Qatada) v. United Kingdom. As Ireland is bound by the European Convention on Human Rights, it accepts that the flagrant denial of a fair trial falls under the definition of inhumane or degrading treatment or punishment. It is not an appropriate test to include in the legislation.

The definition in the Bill is in line with that used in other countries and, accordingly, there is a risk in seeking to create a new definition at a time consistency is essential, particularly for the individual who may be at risk. The prohibition of refoulementunder international human rights law applies to any form of removal or transfer of persons, regardless of their status. As an inherent element of the prohibition of torture and other forms of ill treatment, the principle of non-refoulementis characterised by its absolute nature, without any exception. It is not a judgment call in which one can apply an increased level of concern towards children. Rather, it is a black and white issue; it either applies or it does not. There is no need, therefore, to make exceptions for certain categories of person, whether it is a child, adult or somebody who may be a victim of persecution, have a certain sexual preference or whatever.The prohibition applies to all persons irrespective of their citizenship, nationality, statelessness, age, gender or migration status and it applies wherever a State exercises jurisdiction or effective control. For the reasons I have set out, I am not in a position to accept the amendments, mainly because I believe they would weaken the provisions. Obviously, that is not the Senator's intention. I understand what he is seeking to achieve, which is to focus the spotlight on the vulnerability of children or other areas but that is catered for in a pretty clear way in the note I outlined to him. I ask the Senator to take that into account when I propose that we do not accept these amendments.

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