James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank the Senators for their comments. Section 5(2), while a short provision, is very important for the broader context of the Bill. It provides that a person does not for the purposes of the offences in sections 6 and 7 unlawfully assist presence in the State when providing goods or services in the ordinary course of his or her business trade or profession. It is important to emphasise that it is intended to provide a clarification on the scope of the offences rather than to provide an exception of itself. It does not prejudice the narrowness for specificity of sections 6 and 7, or suggest that other activities not mentioned do constitution assisting presence. Rather, it makes absolutely clear for the avoidance of doubt, that certain activities do not constitute an offence. This is particularly important for accommodation. It is motivated by the work done at European level by the EU Agency for Fundamental Rights and others, and also by the work being done in Ireland to address the practical issues faced by those who come here.

Fears have been raised an EU level that where a landlord is aware that a person is in breach of immigration law, that providing accommodation in the ordinary course of business could be interpreted as unlawfully assisting the presence of the person. We do not agree with this interpretation and have made absolutely clear that it does not apply in this legislation. That is less about protecting landlords than about ensuring that people can have access to accommodation and other essentials without any question about their immigration status. We do not want a situation where proof of status is sought before letting property or providing any other services.

I will now turn to the specific amendments. The difficulty with amendment No. 3 is that the logic that applies to assisting presence is not the same as that which applies to assisting entry or transit. People assisting entry in the course of their business are very deliberately and correctly within the scope of the offences. I will give an obvious example: a mini-bus operator who knowingly facilitates smuggling cannot escape liability by showing that he or she also has a legitimate transit business. The same applies to truck drivers, boat hire and so on. It is not even a question of where the burden of proof lies. The amendment would exclude conduct that we consider should definitely be criminal and, accordingly, it would be directly contrary to the policy of the Bill. Under the circumstances, I cannot accept amendment No. 3.

Amendment No. 2 is quite different. I am aware that Senator Higgins has been working with the Department officials on the wording to provide additional clarity. The amendment is consistent with the spirit of the existing provision. As I have said, section 5(2) exists to clarify the offences rather than to include or exclude things from them. I do not believe as the Bill stands NGOs providing accommodation, for example, would be committing an offence any more so than a landlord would. However, while I do not think the amendment fundamentally changes the meaning of the subsection, I am happy to add the clarification sought. On that basis, I am happy to accept amendment No. 2.