Seanad debates
Thursday, 19 December 2002
Immigration Bill, 2002: Committee Stage (Resumed).
John Dardis (Progressive Democrats)
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Before we proceed, it had been intended that amendments No.8, 11 and 21 would be discussed together with amendment No. 7. Is that agreed? Agreed. Is amendment No. 7 being pressed?
Kathleen O'Meara (Labour)
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I welcome the Minister of State to the House to debate this important Bill. Before we leave the amendment which was debated extensively last night, I wish to make a final comment. The amendment seeks to protect asylum seekers attempting to enter the country and is designed to ensure they are able to do so by preventing insurmountable barriers being put in their way.
As it stands, the provision is extremely serious for anyone fleeing persecution who needs asylum. Staff of an airline, ferry or port will be placed under severe pressure to refuse a person permission to travel if that person is carrying documents which are considered to be of dubious authenticity. It would not be surprising for an asylum seeker or person fleeing persecution to be carrying no documents or documents which have been forged. The effect of the amendment would be to create circumstances in which staff would be under extraordinary pressure to refuse a person permission to travel, even if it means sending that person back to a location in which the persecution will continue or become worse. This is a serious matter and I would like the Minister of State to give it further consideration in light of everything that has been said.
Kathleen O'Meara (Labour)
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Amendment No. 8 seeks to add the words "unless a non-national has a reasonable excuse for failure to comply with this paragraph, proof of which shall lie on the defendants". This is an important amendment as well which would provide further protection for asylum seekers and those fleeing persecution in terms of documentation, in particular. Going beyond asylum seekers and non-nationals generally, a person may not have documents or may have lost them and this amendment leaves the door open for discretion to be exercised if documents are lost.
Brian Lenihan Jnr (Dublin West, Fianna Fail)
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I will speak to the Government amendments first and I will then deal with the points raised by Senator O'Meara. Amendment No. 11 is intended to address, in statutory form, the assertion made by opponents of the Bill that it would compromise our obligations under the 1951 Geneva Convention relating to the status of refugees and its related protocol, the New York Protocol of 1967. Of course, we do not accept that the Bill compromises our obligations and I have been advised by the Attorney General that this amendment is unnecessary from a strictly legal point of view, and I agree with that. Nevertheless, the amendment states the position and what is obvious to any neutral observer is that this carrier liability legislation compromises not one jot or tittle of our obligations under the Geneva Convention and its manifestation in domestic law, the Refugee Act, 1996. While I agree the Government amendment is, in strict law, unnecessary, I am convinced the law in this instance should reflect the policy commitment of the Government and the State to our responsibilities to those in fear of persecution and in need of protection in Ireland.
Amendment No. 11 refers to specific provisions of the refugee legislation, that is, section 8, which sets out the process whereby a person arriving at a port in the State, or already within the State, may make an asylum application, section 9, which ensures asylum applicants are admitted to the State while their claims are being examined and section 24, which addresses the admission to the State of programme refugees. The amendment also refers to the general inherent discretion which every Minister for Justice, Equality and Law Reform has to admit a person who is considered to be in need of the protection of the State.
I inform Members that the Attorney General has advised us that it is not strictly necessary to move this amendment but we believe it is essential to make clear our commitment. The adoption of this amendment represents incontrovertible evidence in statutory form that the State continues to honour and fulfil its convention obligations.
Amendment No. 21 will insert into the Refugee Act arrangements for the acceptance into the State, by agreement with the United Nations High Commissioner for Refugees, of persons from around the globe already identified by the United Nations High Commissioner for Refugees as persons fleeing persecution and in need of protection.
An important concern of the international community and, in particular, the United Nations High Commissioner for Refugees at present is to find solutions to the global refugee problem. To assist it in dealing with refugee matters, the UNHCR advocates what it calls durable solutions which are essentially made up of three pillars: voluntary repatriation of refugees to their country of origin; local integration into the country of asylum; and resettlement to a third country. For resettlement it is necessary for the UNHCR to find countries which are willing to take refugees.
Although during the period 1992-2001 the global number of refugees fell by 24% compared to the previous five years, during 2001 the size of the global refugee population was still approximately 12 million. In 2001 the UNHCR resettled almost 30,000 refugees. Some 40% of the persons of concern to the UNHCR under its mandate live in refugee camps. Many live in difficult conditions, often for considerable periods. Others cannot remain in their country of asylum because, for example, such matters as their religion or ethnic background make it difficult for them.
Senators will no doubt be aware of the inherent power of the Government, as part of its general powers and obligations, to control the entry and stay in the State of non-nationals to determine the number of refugees admitted to the State on an annual basis. The current exercise of this power is exemplified by the arrangements in place whereby up to ten persons and members of their families categorised as vulnerable are admitted to the State as programme refugees each year in accordance with an agreement between Ireland, for which my colleague, the Minister for Foreign Affairs, has responsibility, and the office of the High Commissioner.
The amendment reflects this power to enter into agreements with the UNHCR in statute. I do not intend to give an indication as to the possible number of refugees who will be admitted to the State if the amendment is accepted. Let us not forget the vast bulk are being protected in states such as Pakistan and Kenya, which would scarcely be regarded as among the world's wealthiest economies and can ill afford to carry the burden that falls on them by a fortuitous quirk of geography. This targeted response to protection issues is a more efficient use of our resources with 100% results than committing, as we do at present, approximately €300 million per annum into a system that turns out a mere 10% of persons with protection needs.
I have no difficulty with Ireland taking what the NGOs have described as "our fair share of refugees." All I want to do is ensure our share is fair in every respect and it is refugees we are helping, not those who, by masquerading as asylum seekers, abuse the system and make things worse for those fleeing persecution. The exact details of resettlement arrangements will be agreed in discussions with the UNHCR.
I am surprised that amendment No. 7 has been tabled. Section 2(1)(c) places a requirement on a carrier to ensure the non-national has the proper documentation – a valid passport or other valid document that establishes his or her nationality and identity and, if required, a valid visa or transit visa. All that is required of the carrier is that he or she carries out rudimentary checks of a passenger's documents to ensure they are in order. Nothing more than this is necessary or required by the Bill. Carrier staff will be helped, as some are at present, through training and advice given by immigration officers to spot the more obvious forgeries and falsifications. It is, basically, a mechanical task. If an intending passenger presents with insufficient documentation at a port of embarkation for Ireland, it is no different than if he or she turned up with insufficient money for the fare. All the carrier needs to do is say, "You cannot travel with me today." If amendment No.7 was accepted, further responsibilities would be thrust on the carrier to make more personal and detailed inquiries of the intending passenger by asking such questions as, "Do you intend to seek asylum?" Amendment No. 8 would go even further requiring the carrier to inquire deeply into the motivation of the intending passenger and his or her reasons for travel and not having a visa.
It is clear from the Second Stage debate that some Senators are vehemently opposed to the imposition of such an obligation on a carrier. Accusations were made that the legislation imposed immigration officer duties on carrier staff and that it somehow shifted responsibilities on human rights matters from the State to carriers. I do not accept these suggestions have foundation. The Bill imposes none of these responsibilities on the carrier nor should it. That would be the effect, presumably unintended, of amendments Nos. 7 and 8.
A carrier will be expected to do no more than carry out basic checks of a passenger's documents. There is no question of a carrier looking behind the purpose of a passenger's journey. The legislation does not require a carrier to assess an intending passenger's need for protection nor should it. The amendments should be reconsidered as I am not in a position to support them.
Joanna Tuffy (Labour)
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We accept amendments Nos. 11 and 21.
I support the comments of Senator O'Meara. Without the amendment the provision will put people's lives at risk. We are either not letting them into the country or forcing them into the hands of illegal traffickers.
Regarding amendment No. 8, the defence allowed in section 6(a) covers a non-national having the relevant document with him or her before embarking on the vehicle concerned. It recognises that a document may be lost or stolen during the journey but why is it not recognised that the document could be stolen before the person embarks? We could be putting genuine asylum seekers' lives at risk if we do not accept this amendment.
The Minister of State said people were abusing the asylum system but that is happening because there is no proper system for economic migration into Ireland.
Kathleen O'Meara (Labour)
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As Senator Tuffy said, we have no problem with the Government amendments Nos. 11 and 21, and we thank the Minister of State for those.
Regarding the Minister of State's reply to the points about amendment No. 7, these amendments are put down for serious debate and I hope the Minister of State takes them seriously. His remarks echoed a statement the Minister for Justice, Equality and Law Reform made last night to the effect that our amendment would require staff of airlines and ferries to ask all non-nationals if they are applying for asylum. That is not the effect at all and it is a daft suggestion. The Minister of State should look at the amendment again, as it does not have that effect at all. It is perfectly reasonable and it is important to protect people who need asylum.
Martin Mansergh (Fianna Fail)
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I inquire of the Labour Party whether there is another member state in the European Union which would operate the kind of liberalisation it desires. It was well established in debate last night that most people would have had documentation to enter Ireland from other parts of the EU or North America when seeking to come to Ireland. The issue of people being sent back in the cases of those people being in Belgium or France, for example, does not arise.
Joanna Tuffy (Labour)
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Regarding Senator Mansergh's point, why should we compare ourselves with other EU countries? Ireland has benefited from the welcome given to Irish people who emigrated over the years. They might have emigrated for reasons other than asylum but Ireland has always benefited from its people being able to go to other countries. Are we going to close our doors to people coming to this country?
James Bannon (Fine Gael)
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The offence described in section 2 should be more clearly defined. The proposed section imposes criminal liability on the owner or person in charge of a vehicle entering the State from a destination other than Great Britain or Northern Ireland where the owner fails to produce a certain number of documents. The Minister of State should include a provision stating "on board his or her vehicle" because a person will be in charge of the vehicle. It should be more clearly defined.
What if the owner could not have reasonably known that persons were aboard his or her vehicle? Surely the Bill should be amended to include a defence for a carrier who has taken all reasonable steps to establish if there are people on his or her vehicle. I suggest that the following be inserted in section 2—
James Bannon (Fine Gael)
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I apologise. I wanted to put on the record that it be inserted that he or she could not reasonably have known that there were non-nationals on his or her vehicle.
James Bannon (Fine Gael)
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Do I not have to give an indication of the amendment when section 2 is being dealt with?
Martin Mansergh (Fianna Fail)
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In all cases Irish emigrants to North America were documented. That is why all the genealogical research can be carried out because passenger lists and such documents are in existence. I am sure we are all united in wanting a decent, humane regime for asylum seekers and indeed immigrants, although they are a separate question. We must have a reasonable and controlled system. If we have a markedly more liberal system than every other country it affects the numbers and our ability to cope. It also affects the degree of tolerance that there should be for asylum seekers. While these amendments are well meaning they are totally counter-productive.
Jim Walsh (Fianna Fail)
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The effect of amendment No. 7 would be to neuter the Bill. It would leave it open to any carrier complicit with the people he or she was carrying to say that they were asylum seekers. That is not the intent of the Bill. Many of the amendments would neuter the Bill. I do not know if that is the intention of the Labour Party or not but if it is, it should be stated up front. There is no country that I know of that has an absolutely open door policy and I do not think we should have one either.
The Minister of State has pointed out that in co-operation with the UN High Commissioner for Human Rights we have a sensible and co-ordinated approach. Is the Labour Party suggesting an open door policy? Such a policy could have enormous effects on employment. We are a small country with a small population. We could not absorb the numbers. In co-operation with other states we have a responsibility to play our part. These amendments would alter the intent of the Bill.
Joanna Tuffy (Labour)
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I wish to reply to Senator Mansergh's sweeping statement that every Irish emigrant to the United States had valid documentation. There have been hundreds of thousands of emigrants who have stayed there illegally and have been able to take advantage of amnesties.
Martin Mansergh (Fianna Fail)
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Their identity has not been in doubt.
Joanna Tuffy (Labour)
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They are illegal immigrants and they have taken advantage of amnesties to apply for green cards. If we had a proper green card system and amnesties for people who are economic migrants and are here illegally, we could then be more strict in our laws. We do not have a fair system for economic migrants.
Sheila Terry (Fine Gael)
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It must be said again that the intention of this Bill is to reduce the number of people who may seek asylum in Ireland.
Sheila Terry (Fine Gael)
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It certainly does. That is the intention and the effect of this Bill – that the number of people who can come into this country to seek asylum will be reduced. In fact, it will be reduced to nought because it is the carrier at source who will decide who should travel to the country and if somebody does not have the necessary documentation, he or she will be denied the right to travel and, therefore, the right to seek asylum. That is the intention of this Bill.
My concern, as expressed already, is that there seems to be no mechanism to provide for those exceptional cases which should be considered by the State. Instead of that, we are allowing the carrier to make these decisions.
Kathleen O'Meara (Labour)
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I was not going to speak because, like you, Acting Chairman, I am anxious to move on. Did Senator Walsh listen to the debate last night? Did he listen to what we have said this morning? Would he even listen to Senator Terry? The intention of these amendments is clear. They are to protect those fleeing persecution in need of asylum and to ensure that our responsibilities are upheld in that regard.
Brian Lenihan Jnr (Dublin West, Fianna Fail)
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I am surprised by the position taken by a number of Senators on this measure. The debate on this subsection became a more general discussion on the nature of this measure.
Focusing on the amendment moved by Senator O'Meara, Ireland's position is that we welcome those who have properly documented themselves upon arrival. There is nothing unusual in that. In fact, states such as the United States, Australia and New Zealand have similar legislation to this. We are now the last state in the European Union to provide for this type of legislation.
There is nothing usual in the jurisprudence of other states in providing for this provision that carriers do document checks on persons boarding flights. There is nothing unusual at all in what is proposed in this legislation, yet it seems to have given rise to wide speculations about what should be appropriate in terms of our immigration policy.
On the amendment moved, we cannot see any basis on which to import into the section the type of obligations suggested by Senator O'Meara. That, in fact, would transform the simple elementary checks that every state requires carriers to conduct nowadays into full inquiries, which it would not be fair to impose on carriers. On that ground alone, I would oppose the amendment and I would suggest that Senators should not accept it.
That apart, it is important that we recognise that there is nothing unusual in this legislation. An attempt has been made to characterise it in some way as designed to infringe people's rights. The suggestion was that some people's lives would be put in peril. I cannot see how this can be the case because all of the states where transit takes place to this State are ones where a person's right to invoke asylum can be freely exercised. Therefore, I cannot see where the difficulty arises.
Senator Tuffy then raised wider questions about our immigration policy. She stated that we do not have an immigration policy. That is simply not correct. We have one of the most open labour migration systems in the European Union. I am sure the Senator must be well aware that the main ways in which non-European Economic Area nationals can come to Ireland is through the work permit or work authorisation schemes. In 2001, over 36,000 work permits were issued to non-EEA nationals by the Department of Enterprise, Trade and Employment. That is a substantial number. It was double the number issued in 2000, which was over 18,000. In 1999, around 6,000 work permits were issued. Up to the end of November this year, over 38,662 work permits were issued. If that is not a labour immigration policy, what is?
In 2001, there were no restrictions on the countries from which people may come. In 2001, persons came from over 120 countries, with the top five countries of origin being Latvia, Lithuania, Poland, the Philippines and South Africa. They were not all high-skilled staff. The majority were in the low-skilled areas such as catering, agriculture and services. This trend has continued in 2002, with the top five countries of origin being Latvia, Lithuania, the Philippines, Poland and Romania. In 2001 a further 3,753 persons came through the working visa work authorisation scheme which covers high skilled areas such as nursing, information and communications technology and building professionals. During January 2002 a total of 1,996 persons came through the scheme.
In recent years FÁS and a range of employers have been actively publicising job opportunities in Ireland and attracting non-nationals into the job market. It cannot be said that the only way a person can enter Ireland to work is to come here illegally or make an asylum claim. That is simply not correct and should not form part of this debate any longer. The reason this type of provision is in place in other states is to ensure the populations of those states can have confidence in the immigration systems obtain. We have a duty to those who go to the trouble of getting a work visa here to protect the integrity of the system.
Joanna Tuffy (Labour)
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I move amendment No. 9:
In page 4, subsection (3)(a), line 42, to delete "person" and substitute "non-national".
While we have discussed this issue under similar amendments, this amendment goes a little further. If the members of an Irish family were returning from holidays, they would need a list of all the people travelling in the car as well as other information. What kind of state do we want? This is an interference with civil liberties. We are supposed to be a friendly, welcoming country, but this moves us in a totally different direction and is completely over the top. It is a case of overkill by the Government.
Brian Lenihan Jnr (Dublin West, Fianna Fail)
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I oppose this amendment. Section 2(1) applies to persons who arrive in a vehicle from a place outside the State other than the common travel area. The requirements in paragraphs (a) and (b) of the subsection are for the carrier to ensure everyone on his or her vehicle disembarks in compliance with any directions given by an immigration officer and that everyone on the vehicle is presented to an immigration officer. The requirement of subsection (3)(a) is that, when asked for, everyone on the vehicle should be listed. These requirements cannot be confined to non-nationals.
Does the mover of the amendment expect the carrier to separate Irish passengers from others in the context of complying with a simple direction to disembark or any of the other requirements? That would undoubtedly lead to interminable delays and confusion at ports and airports and to far greater inconvenience for carriers and passengers than compliance with the straightforward requirement envisaged in the Bill. Picture the situation with the amendments in operation. Imagine someone in charge of a vehicle who does not wish to co-operate with the immigration authorities, refuses to comply with any of the requirements, looks the immigration officer in the eye and says all of the persons on board his or her vehicle are Irish. What is the immigration officer to do? How can he or she tell whether the carrier is telling the truth? The answer is that he or she cannot because the amendment would deprive him or her of the power to carry out verifying checks. I am, therefore, opposing the amendment on grounds of impracticability.
Amendment, by leave, withdrawn.
Joanna Tuffy (Labour)
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I move amendment No. 10:
In page 5, subsection (6)(b), line 14, to delete "suspecting" and substitute "believing".
To require airline carriers and so on to "suspect" is too strict a requirement. It should be sufficient to say they should have grounds for "believing" the papers are at fault. I would like the Minister of State to comment.
Brian Lenihan Jnr (Dublin West, Fianna Fail)
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Senator Tuffy is not on the side of the angels in the case of this amendment in the sense that she would further restrict the defence. Were this amendment to be passed, the Senator would insert the word "believing" rather than "suspecting". She is proposing an amendment to a subsection which provides a defence for a carrier charged with an offence. The subsection would then provide that it shall be a defence to show "that he or she did not know and had no reasonable grounds for believing that the document was invalid". That would put a higher onus on the accused to raise that defence and show that he had a belief, as distinct from a suspicion, that the document was invalid.
I am reluctant to extend the obligation on the carrier to that extent. I understand the point made by the Senator but if the amendment was accepted, it would be more difficult for the carrier to make that defence. Given the large numbers of people that have to be checked under this system, it would make the task of the carrier more difficult if he was required to show a belief, as distinct from a suspicion, in every case. This legislation seeks to ensure that carriers make certain basic elementary checks. However, if the element of belief is imported into the subsection, it will be impracticable for the carrier.
Joanna Tuffy (Labour)
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Suspecting puts a higher onus on the carrier than believing. It would be easier to prove belief.
Amendment, by leave, withdrawn.
Government amendment No. 11:
In page 5, between lines 19 and 20, to insert the following new subsection:
"(9) This section is without prejudice to the provisions of sections 8, 9 and 24 of the Refugee Act, 1996 and to the discretion of the Minister to admit to the State a person whom the Minister considers to be in need of the protection of the State.".
Amendment agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."
Brendan Ryan (Labour)
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I am far from infallible, particularly this morning. We raised a number of issues on this section last night and I do not wish to be repetitious, but the section and many of the arguments in defence of it are being dealt with in a different fashion.
The section begins with the phrase: "Where a vehicle arrives in the State from a place other than Great Britain or Northern Ireland.". The Channel Isles and the Isle of Man have now been added. That is what the section is about. There are tasks the carrier must carry out and, as the House is aware, our party does not agree with that. They are things that must be done on board the vehicle. The Minister was positively eloquent about aeroplanes last night. It is easier to talk about them because of the process, as much for security as for anything else, by which people check in for flights.
The real concern, however, is with ships which carry thousands of passengers. They travel from Cherbourg, Roscoff, St. Malo and other places. It is entirely possible, if our tourism industry ever recovers, that we might have a ferry service between Cork and, for example, Santander in Spain. Senator Mansergh and I agree that this would be a good idea. These vessels have thousands of people on board.
I am concerned about two issues. Is it going to be an incredibly cumbersome process for a continental tourist coming to this country to check in beforehand? If all of these conditions are to be met when they reach Ireland, will we have huge bureaucracy or will this be done on board the ship? Section 2(1)(c) contains the following phrase: ". the carrier concerned shall ensure . that each non-national on board the vehicle seeking to land in the State or to pass through a port in the State .".
Two points arise in this regard. First, many car ferries are now staffed by people from outside the European economic area and, therefore, questions arise about their status and right to come ashore. The second point is that it appears that we are saying everyone on board must be pre-checked. I accept what the Minister said last night, namely, that ideally each ferry company would check all of this. However, if, as he also suggested, somebody on a ship destroys his or her documents, then with whom does the responsibility lie?
On the issue of the liability of carriers, will the Minister of State indicate how an asylum seeker could lawfully enter the State? What happens to somebody with a genuine case who is undocumented? Let us not pretend that all asylum seekers carry documents because they do not. Sometimes they destroy their documents, either to test or break the law. Many of the people who streamed out of Kosovo during the war had no ID cards because they had been destroyed by the Serbian army to make matters difficult for them. Are we saying that such people are immediately to be refused access to any vehicle travelling to Ireland?
Amendment 11 was made to section 2 in order to cover the Government's nakedness. Having put together a Bill which makes it impossible for people fleeing from tyranny to come here, a subsection has been inserted to say that we really do not mean it. It is typical of many Irish Governments to have great rhetorical flourishes in legislation about our kindness and consideration and then compose a structure which prevents anybody from availing of that kindness and consideration. Will the Minister of State explain how a genuine asylum seeker can enter this country if the Bill is passed?
Sheila Terry (Fine Gael)
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I wish to draw the Minister of State's attention to section 2(8) where it is stated, "The Minister may from time to time draw up and publish guidelines". This is extremely vague and I suggest it be changed to "should" or "shall", whichever is most appropriate.
The subsection further states that the Minister shall "publish guidelines concerning steps to be taken by carriers to ensure compliance by them with this Act". I suggest that a comma be inserted thereafter and be followed by the term "to be reviewed annually". This would ensure that guidelines would be issued on an ongoing basis, annually or at least biannually, whichever the Minister would consider most appropriate. I intend to table an amendment to that effect on Report Stage.
Martin Mansergh (Fianna Fail)
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I wish to reply to Senator Ryan on how somebody could make an asylum application. Anyone seeking asylum is entitled to go to an Irish embassy or consulate, with or without documentation. If he or she does not have documentation, it would be necessary to explain the circumstances. It would be preferable if people could be encouraged to regularise the system of application.
Jim Walsh (Fianna Fail)
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On the section, the provisions are eminently sensible and they are not a departure from what is happening. If someone presents themselves at Dublin Airport to travel to any continental country, his or her passport is requested and if he or she does not have it, and this is nothing to do with the Ryanair situation where a passport is required to board the aircraft, the carrier will not accept him or her. I assume that is for a good commercial reason in that if the passengers arrive at their destination without their passports they will not be admitted and there is probably an obligation on the carrier to take them back to Ireland.
With regard to ports, Senator Ryan made the point that we are dealing with a larger volume of people. However, when people present themselves at the port, the carrier will ensure that they have a valid ticket for commercial reasons. In fact, that would be a good stage to check the documentation. This is not impractical and as far as I know – perhaps the Minister will clarify this – the same practice pertains in other countries. This is merely to regulate the movement of people between one country and another.
Joanna Tuffy (Labour)
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Senator Walsh said this is not a new departure in comparison to other countries but it is a new departure for us in terms of our humane attitude and the welcome we give to asylum seekers, visitors, etc. Just because other countries have provisions we consider to be wrong does not mean we have to bring them in also.
Brian Lenihan Jnr (Dublin West, Fianna Fail)
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I would like to bring the section down to practicalities and I invite Senators to proceed to a point of departure known as Rosslare from where one leaves Ireland to travel to France and where one's legal documentation is checked because that is a requirement of French legislation. Irish citizens or any person resident in Ireland who wish to travel to France have to go through precisely the system envisaged in this legislation when they embark on a ship at Rosslare. All we are providing for in this legislation is that we too can exercise that facility at a point of embarkation. That point illustrates the essential character of this measure. There is nothing unusual in it.
On the issue raised by Senator Ryan, the position in Cherbourg is that we do not know what the intention of persons refused boarding by Irish Ferries might have been had they entered Ireland. However, many of them might have planned to claim asylum, take up employment without a work visa or use this country as a transit point for the United Kingdom. Any of these persons who wish to seek asylum can make the necessary application to the French authorities or to the authorities in the EU state through which they first entered the territory of the European Union. That approach is reflected in the principles underpinning the Dublin Convention to which all European Union states are parties.
On the wider question of programme refugees, I spoke already on this subject and made it clear that the Government welcomes them. Senator Ryan outlined the horrific circumstances in Kosovo. We would support a programmed approach to deal with any great human tragedy such as that, but the practicality is that if we do not tackle the problem of the unfounded and unmeritorious application, there will not be places for programme refugees whom we all want to see being brought here.
Senator Terry raised the question of the guidelines and I understand she intends to return to that on Report Stage. The hauliers have been in discussions with the Department and have agreed a draft code or statement of practice. I appreciate the concern of the Senator that the word "shall" shall be imported but that gives it a very mandatory character. What we are talking about is a guideline which a potential defendant could comply with and, therefore, prove his or her innocence by adhering to it. However, I do not want to anticipate what may be raised on Report Stage on that issue.
Brendan Ryan (Labour)
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I was absent for a while, a Leas-Chathaoirligh, but no doubt you will remind me if I become repetitious. We have all received documentation this morning from Amnesty International, the Irish Council for Civil Liberties and, most significantly, the Irish Refugee Council taking exception to the whole issue of carrier liability and pointing out that it has not achieved what it hoped it would achieve anywhere else in Europe. It also points out that it drives people from regions of great poverty or disorder into the hands of traffickers.
The Minister for Justice, Equality and Law Reform and the Minister of State keep saying that Ireland is the only country in the EU that does not have legislation of this sort. However, such legislation does not seem to have solved any problems in other countries. It will not solve any problems here; it will only result in people entering the State in different ways. Some of the methods they will use will place them in greater danger, as was the case with the horrible events at Rosslare last year. I do not believe this measure, nor any short of putting barbed wire around the boundaries of Europe and telling people to go away, will solve the problem of the number of asylum seekers.
One of the problems with the huge superstructure of control of immigration we are constructing implies this country has a problem on a scale belied by the facts. The Government, the Opposition and a particular Fianna Fáil Deputy need to learn to exercise restraint and be very careful about the language they use.
Brendan Ryan (Labour)
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The judgment of Ministers is a matter of concern and that judgment seems to be harsher under the present regime.
This provision makes life more miserable for people whose lives are already miserable. It potentially criminalises large numbers of innocent people. I do not believe these checks will be operated with the rigour the Minister seeks. I do not recall any particularly thorough checks on my occasional ferry trips to France. How will someone checking people onto a busy ferry in Cherbourg or Roscoff know this State's visa requirements for third country nationals? How are people with passengers in their cars to know that? The operators will say it is not their responsibility, but a person driving the car with third country nationals in it – perhaps these people might be his or her friends – will be criminalised. This will achieve nothing because people will come by other routes.
If the driver of a container arrives in Rosslare and hears a noise coming from it, what is the likelihood he will try to find out if there are people in it knowing that if there are, he or his boss will be fined €3,000 for every individual found where a driver is found to have been negligent in any way? Perhaps he rushed through and did not carry out a thorough check. The chances are that drivers of such vehicles will wait until they get to a place where they will not be open to legal sanction before checking a container. That point is made in a briefing note we received this morning from three organisations involved in this area.
This legislation will drive trafficking further underground, the consequences of which will further enrich traffickers, none of whom has ever been brought before a court in this State or, as far as I am advised, any other member state of the European Union. Driving traffickers further underground will result in further such horrible events as happened last year. That is the reason this legislation is wrong. It will not solve the problem that allegedly exists because it is exaggerated. Having failed to solve it, it will create new problems that will put people at risk.
Kathleen O'Meara (Labour)
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The Minister for Justice, Equality and Law Reform, Deputy McDowell, constantly reminded us last night that all other EU member states had carrier liability legislation which underlined the necessity for us to have a similar framework. Be that as it may, he has not outlined the effect or non-effect of carrier liability legislation throughout Europe. Has it prevented illegals coming into the European Union? It has not. It has had the effect of creating horrendous trafficking, horrific incidents, of which we are well aware.
One year ago this month there was the horrific incident where people were found dead in the back of a container in County Wexford, the driver of which was attempting to gain entry to the United Kingdom, not here. The framework of carrier liability legislation throughout Europe is not working, rather it is having the effect of increasing trafficking. As Senator Ryan said, while there is a sanction in legalisation to deal with traffickers, not enough practical effect has been given to pursing them.
Brian Lenihan Jnr (Dublin West, Fianna Fail)
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In relation to Senator Ryan's understandable concern about persons who die while concealed in containers in attempts to enter the State, this legislation, far from increasing the risk of that occurring, will diminish it. It increases the number of inquiries that must be made by carriers before a person enters the vessel. By extending the obligations of the carrier, a further precaution is being taken against this type of activity. As was said many times during this debate, there is nothing unusual about insisting on this type of check.
Senator Ryan raised a fundamental philosophical point about immigration controls and smuggling. Once immigration controls are in place, smugglers will offer services to evade them. That cannot be avoided. Does the fact that persons put themselves at risk, or are willing to offer a service which puts others at risk, to circumvent legitimate immigration controls mean we should abolish such controls to avoid that risk? Every sovereign state must maintain some control over its boundaries. This touches on a point raised by Senator O'Meara, that carrier liability legislation has not worked in Europe. Such legislation is a feature of the legal landscape. Migration has increased dramatically in recent decades as is obvious throughout the European Union.
Brian Lenihan Jnr (Dublin West, Fianna Fail)
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We are not entering into a discussion on whether it is legal or illegal here. My point is that we must provide legislative responses to ensure there are proper travel arrangements. This measure brings us into line with other European countries.
Brendan Ryan (Labour)
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I appreciate that, and the Chair's indulgence, or rather his patience, if not his indulgence, or at least his silence, if not his patience.
Brendan Ryan (Labour)
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I would not dream of doing so, especially this morning. It would be very simple to draft legislation which made clear what procedures a commercial carrier had to operate in good faith before he or she brought anyone into the State. The legislation would state he or she was under a legal obligation to ensure certain things. The Bill before the House criminalises people unnecessarily.
With the permission of the Chair, I will quote a paragraph from a document signed by Amnesty International, the Irish Council for Civil Liberties and the Irish Refugee Council:
Research for the United Nations High Commission for Refugees has shown that the vast majority of asylum seekers now enter Europe in an irregular fashion and more than likely with the assistance of traffickers and smugglers. The main nationalities who are trafficked and smuggled are those who go on to gain refugee status.
We are driving people who, it is ultimately discovered, have legitimate claims to refugee status into the hands of smugglers and traffickers. I do not know what that is purported to achieve.
This measure forms part of the Schengen Agreement, but as is our entitlement, we operate the agreement selectively. When it suits us, the open travel arrangement between Ireland and the United Kingdom is used as a great excuse to close down free movement between Ireland and the rest of the European Union. It is an affront to our membership of the European Union that we, as the most passionate Europeans, as we describe ourselves, retain passport restrictions more consistent with the slightly xenophobic and isolationist mentality across the water in Britain than with ours. We were told that our non-accession to the entire Schengen accord related to problems with the common travel area. It is clear that we will now never agree to any form of passport free status within the European Union because we have got ourselves into a frenzy of concern about asylum seekers.
The reason we have so many asylum seekers is we took five years to develop a means of processing applications for asylum. That is the fundamental problem. While the numbers are significant, they are not huge in proportion to the rest of Europe. It is interesting to examine them because, if all countries in the European Union have carrier liability and it has made no difference to the numbers of asylum seekers with which they must deal, and if those numbers are increasing at the same rate as ours, why are we implementing this legislation? We do so in order that we can say we are doing something about asylum seekers, because there is a constituency that does not like people with dark skins coming into the country. We would want to be very careful how we deal with this issue.
Ulick Burke (Fine Gael)
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Perhaps I could beg the indulgence of the Leas-Chathaoirleach on this question to the Minister of State.
It is entirely inappropriate for the Department of Justice, Equality and Law Reform to discriminate against legitimate students wishing to enter the country by denying them visa access. They come here through a proper internationally recognised agency and have free access to Dublin business and language schools. However, when they seek permission to attend similar properly structured schools in the provinces, especially in the west, they are refused.
Some 19 students, which represented the full intake for a business and language course in the west of Ireland, were denied access. They were Bangladeshis who had all the proper preparations for entry made, including visa applications, but were turned down. Four of them were refused by the Department of Justice, Equality and Law Reform in conjunction with the Department of Foreign Affairs for particularly spurious reasons. There is a feeling of resentment that we are discriminating against these people.
This is an ideal opportunity to promote activity and learning as well as being important for business in the west of Ireland. There is a failure to get any information or response and an appeals mechanism was introduced.
Ulick Burke (Fine Gael)
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They are being classed as illegal immigrants, which is not fair to a legitimate business opportunity. They came through an internationally recognised agency. The Minister should intercede as a matter of urgency so these groups are not so classified and denied access to this country.
Brian Lenihan Jnr (Dublin West, Fianna Fail)
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If Senator Ulick Burke communicates the details of the matter, I will of course arrange to have it investigated in the Department. I am not familiar with the facts of the particular case. It is not the policy of the Department to discriminate in relation to private colleges.
Brian Lenihan Jnr (Dublin West, Fianna Fail)
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If the Senator has evidence of that he should furnish it and I will arrange for it to be examined. There is a difficulty with colleges in that there is no precise legal register or regulation of private colleges in the State. It is not the policy of the Minister to discriminate as between institutions in different parts of the country. The policy is to examine visa applications on their merits.
On the general points raised in consideration of section 2, Senator Ryan returned to the question of the migration patterns. There is a meeting of minds on this Bill. The crucial point is that we have a system of control, which is unexceptionable. Senator Ryan recalled his own experiences of transit through Rosslare. The controls are so relaxed in character that people do not notice them readily when going through. At airports and ports, prior clearance is now a universal norm in European countries.
On the wider Schengen question, raised by the Senator, we always made it clear that we were prepared to accept the full Schengen principle of unrestricted access throughout the European Union area. However, we do not just live in our own island. We live beside a bigger island, which does not accept that principle should be implemented. The common travel area is something that has been important since the foundation of the State. It was of course interrupted during the war years, when there were controls – a fact that is often forgotten. The common travel area is deeply ingrained in our cultural consciousness. It would be difficult for us to implement the Schengen Agreement and have to institute controls at the land frontier with Northern Ireland. It is not a practicable proposition. The Government is committed to and would like to see what the Senator envisages, namely, free movement throughout the European Union. That is why we are trying at European Union level to devise legal responses to this problem of uncontrolled migration.
Question put.
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