Michael McDowell (Independent) | Oireachtas source

I do not suffer from xenophobia, racist thoughts or racist impulses of any kind whatsoever. However, I am opposed to our ratification of this pact for a number of rational reasons that depend, at the outset, on an examination of how we got here. If we go back to the end of 1999, at Tampere in Finland, conclusions of an EU Council meeting included a commitment by member states to a number of things in the area of freedom and justice in the European Union and a common approach to asylum seeking. Based on that, a number of measures, in 2006 when I was Minister for Justice, and later, since 2011, were adopted by Ireland by means of exercising our option to opt in or not to measures in this specific area. That is a reserved right Ireland retained for itself at the time we signed up to the various treaties and which are set out in law.

I do not believe that the claims made for this pact will eventuate. Some people are saying that all decisions relating to asylum seekers will be speeded up and made within three months; I reject that. It is a fanciful claim made by people who are exaggerating completely. If we take what the Minister, Deputy O'Gorman, said about the new normal of between 25,000 and 30,000 asylum seekers, or those seeking international protection, coming here per annum, and divide it by 50 working weeks allowing for two weeks holiday, it means 600 people per week applying for asylum in Ireland. That is 120 people per working day. I do not believe that we are in a position, within three months, to turn around 120 decisions on asylum seeking per day. That is an exaggeration. It is a slightly politically dishonest exaggeration to say that somehow, within a three-month period, we will adjudicate on, first, an examination, second, an appeal and, third, that we will deal with the judicial review process.

In the latest edition of The Bar Review, David Leonard, a barrister who gave evidence to the justice committee at the hearings on which I insisted, states:

[The] 12-week limit isn't absolute. When the border procedure is applied, an international protection application, including any appeal, must be determined within 12 weeks. But if a first-instance decision is not made within 12 weeks, the applicant must be authorised to enter the Member State’s territory. [Let us remember this: if there are any delays, the applicant automatically gets into our territory.] The obligation to ensure that the border procedure must enable a complete and fair examination of claims must be interpreted in light of the rights and principles contained in the EU Charter of Fundamental Rights. This surely means that notwithstanding the 12-week deadline, the authorities might in an appropriate case have to refrain from making a first-instance decision [let alone an appeal] until an applicant who is awaiting an important piece of evidence, like an expert medical report, obtains it. Thus, the 12-week period is not the blunt instrument that is feared by some advocacy groups.

It may well not be the blunt instrument, but it is certainly not the guarantee that everything will suddenly change, that people will be dealt with within 12 weeks, one way or the other, and be available for deportation thereafter. That entirely ignores the whole area of judicial review, which we know from experience applies not merely to deportation decisions but also the process at first instance and on appeal. It is entirely illusory to think that this 12-week period will benefit us because we do not have the resources and do not intend producing the resources that will deal with 120 applications on each day of the working year. That will simply not happen. Anybody who cods us and says that is what will happen is deluding not only themselves but the Irish people as well.

The second point I will make is this. The process whereby we have now found ourselves in this situation, by opting in successively to a number of EU directives on asylum procedures, asylum recognition principles, treatment of asylum offenders and the like, has been part of a European decision, going the whole way back to the Tampere conference, that somehow Europe is competent to deal with this matter.All the evidence is that Europe is not competent to deal with it. Europe has been an abysmal failure in dealing with distinguishing between economic migration and asylum. That is the fundamental issue -. I agree with Senator Ward. Ireland does need economic migration to a certain degree but I disagree with him that it should be effectively uncontrolled, which is implicit in his suggestion that anybody who comes in here and claims asylum should, from day one, be allowed to work. That effectively means that we would not have any work permit or visa system for people coming to work in Ireland. That would be to open the door, and I am surprised that a Government Senator would reveal the truth of the situation. If we completely dilute the difference between controlled migration subject to visas on the one hand, and open the door to international protection applicants being treated as economic migrants with the right to work on the other, is the suggestion that we will be able to sustain or control migration into this country? It is now out of control; it is not in control. It is not merely the tented cities or all of that. It is a lot of other things. We have now got to the point where we cannot deport people.

The Minister for Justice, Deputy McEntee, declared to the people - we read it in the newspapers - that she is looking for tender applications for deportation flights. I did that 20 years ago as Minister for Justice, Equality and Law Reform, and I can tell the Minister that they are almost impossible to work. They are always subject to absenteeism by the would-be deportees and to court injunctions and they are immensely expensive to operate. They do not work. This illusion that the Minister is putting out a tender and that will solve the whole problem is completely misconceived. That is not what is going to happen.

I am interested also by the proposition that in Europe the implication is that asylum applicants, during that 12-week period, will be required to reside in mandatory detention centres pending the validation or otherwise of their application. I do not read in the papers that there are any plans to establish any such centre in Ireland. This comes from the people who have, in the past, put before the Irish people the notion that direct provision was somehow wrong and they had some alternative that Catherine Day's expert group came up with. This Government has abandoned that. It knows that simply cannot be delivered on in the context of 30,000 asylum applications per year. Right across Ireland, we have the pressure on tourist facilities, hotels, accommodation, nursing homes and the like. We have all that to show for the fact that this Government has not been able to get on top of the accommodation issues that now attend the massive increase in asylum seeking.

When I left the then Department of Justice, Equality and Law Reform, asylum seeking was on the way down, but it has climbed inexorably since then. I am not talking about refugee status for Ukrainians. I am talking about what is, in fact, Third World migration coming to Europe, crossing the Mediterranean and the English Channel and other places. Fundamentally, I understand it; I am not some kind of naive person. It is in pursuit of a better life. It is particularly young men and women, but mainly young men, coming from societies where they see Europe as a land of opportunity, where they see better welfare and the chance of a well-remunerated job. That is what it is and I do not criticise people for wanting to do that but I believe it is the duty of an Irish Government, at the same time, to differentiate between migration, a visa system and a controlled policy on migration which would say, for instance, that Georgian, Moroccan or Algerian people could come to Ireland and work in specific sectors because they are needed for our economic growth, and the alternative, which is what is happening now, leading to tents throughout our city.

The other thing I want to say about migration is this. Migration and asylum seeking, in Ireland's particular circumstances, are very difficult to deal with because of the common travel area. I do not want to expand from one case to all but it is ironic that you hear people in the tented villages - which were being shifted around the place by the Government - with strong British accents claiming to have come to Ireland seeking asylum. The issue is very simply this. Our common travel area, the open border and the decision by the Tory Government in England to experiment with the ridiculous Rwanda solution to its problems has created a problem for Ireland where the Minister, Deputy McEntee, stated that 80% of asylum applicants were coming through the United Kingdom, although she later seemed to wobble on that figure. However, I tend to believe that must be the case because if they are not coming in through Dublin Airport, Rosslare or wherever, the great majority must be coming from the United Kingdom. The United Kingdom is not party to this pact, and we are not, and will not be, in a position to repatriate people to the United Kingdom as long as the Rwanda policy is there. If the Labour Party repeals that particular law, which is to be greatly hoped for, we are not in a position until then, and even after then, to put people across the Border in any meaningful way to be dealt with, or send them back to Britain to be dealt with. We cannot do that.

The burden-sharing arrangements are stated to be beneficial to Ireland because there are new funds to deal with asylum seeking. The burden-sharing arrangement is backed up by a penalty that can be invoked against you if you do not accept your fair share of people being distributed across the European Union. That is an entirely novel concept - that Ireland is now going to be obliged to take in people who are not, prima facie, our obligations under international law. The amount of those financial penalties can be varied by a qualified majority vote at EU level. With regard to the figures that have been put before us, and the Minister's speech refers to current figures, we are actually signing a blank cheque there.

The most important point is this. Senator Ward and the Minister have referred to Ireland's obligations under international law. It is true that in the 1951 Refugee Convention, and the protocol thereto, it is imposed upon states who are adhering to those conventions obligations in respect of people fleeing persecution and seeking certain protections from it. However, they were never intended to deal with mass migration. They were never intended to deal with 1 million people arriving in Germany from, say, Syria, encouraged by Dr. Merkel, who wanted that migration, whatever the people of other member states of the European Union wanted at the time. That convention and the protocol to it were never intended to deal with what is happening now. They were never intended to deal with an ambitious young man in west Africa travelling the whole way through Spain, crossing the Mediterranean, arriving at the Channel and the coast of Britain through the hands of people traffickers, and eventually coming to Ireland. That is nothing to do with what those conventions were there for.

I will end on this note. The fundamental problem is that there is a hugely dishonest failure on the part of many organisations, NGOs and agencies to accept that there is a radical distinction between migration on the one hand and asylum seeking on the other hand, as exemplified by Senator Ward's speech. Unless the European Union tackles that fundamental problem and rethinks and readjusts its attitude to those conventions, all of this is futile. This House is being asked to approve us opting in to a number of measures. Why they are all put in one lump, I do not know. We could have considered each of them individually. We have not done that and we will not be doing that, in fairness. I regard what is happening today as a huge mistake. I believe that Ireland could, like Denmark, have taken a different path. It is not simply explained by Denmark’s membership of Schengen. Ireland could have done something different. It could have retained control of its own asylum and immigration policy. Alas, we have abandoned it over the past 12 years and we are now paying the cost.