Seanad debates
Tuesday, 4 February 2003
Immigration Bill 2002: Report Stage.
2:30 pm
Rory Kiely (Fianna Fail)
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Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment who may reply to the discussion on the amendment. Also, on Report Stage each amendment must be seconded.
Sheila Terry (Fine Gael)
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I move amendment No. 1:
In page 3, line 12, to delete '"carrier"' and substitute '"carriers of passengers"'.
I ask for the Minister's advice on this matter. As the Bill stands, I understand it will apply to those who carry goods as well as passengers. Carriers of goods who unknowingly or unwittingly carry passengers are already covered by the Illegal Immigrants (Trafficking) Act, 2000 which allows for the imposition of a fine on such carriers. Should we not therefore confine the effect of this Bill to carriers of passengers only, not to carriers of freight? The term "carrier" includes carriers of freight who are already covered by the previous legislation.
Michael McDowell (Dublin South East, Progressive Democrats)
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The primary purpose of the carrier liability provisions in the Bill is quite straightforward. Carriers which bring non-national passengers into the State should satisfy themselves that those passengers have with them the appropriate documentation to allow them to disembark at their destination – be it a port or airport – in accordance with Irish immigration requirements. For that to work in a sensible practical way, it has to apply to every vehicle arriving in the State from outside the common travel area and, accordingly, it has to apply to the persons responsible for every such vehicle. The Bill, as it stands and subject to the right of the House to amend it, carefully defines a "carrier" in an inclusive all encompassing way.
I do not believe Senator Terry's amendment would add anything helpful to the definition. For example, if I travel alone in a camper van, commercial truck or minibus from France to Rosslare, no issues arise for me under the carrier liability provisions. If, on the other hand, I travel the same route with passengers, there may be issues under this legislation but the immigration officer will not know whether I am alone or whether I have passengers, nor can he tell what is the situation even if the vehicle is not designed for passengers or if it is not customarily used for carrying paying passengers.
The thinking behind the proposed use of the term "carriers of passengers", as suggested by Deputy Terry's amendment, appears to be a desire to confine the scope of the carrier liability provisions to commercial passenger carriers, airlines, ferries and bus companies only. However, it ignores the practicality that unless the term "carrier" applies universally to all arrivals in the State, private and commercial, designed for passengers or cargo only, or for both, the scheme simply will not work. A definition of the sort proposed in the amendment, in attempting to exempt the driver of a private car, actually provides a coach and four, if I may mix metaphors, for the smart and unscrupulous operator to find a way to circumvent the law.
It is not as if the Bill would place an unbearable burden on the operator of a private vehicle. It is only common sense that a driver should know who is in his or her car and check before embarking on the journey that everybody has their passports. In the example of the Rosslare-Cherbourg ferry, the term "carrier" has two meanings in that context. If the carrier is the master of the ship in one sense and also the driver of a vehicle that goes on to the ship in another sense both are encompassed within the definition. In order to get on the Rosslare-Cherbourg ferry at Cherbourg, for example, one will have to satisfy the owners of the boat or the master of the boat that one is documented. It will not be a problem for somebody who is driving their family or driving a group of friends onto a boat in a car because the ferry owner will be caught by this legislation and will not allow undocumented passengers onto the boat.
If I was to say that, in this context, a carrier should be defined as a "carrier of passengers", it could be implied that if one is driving a vehicle not adapted for passengers, they are somehow outside the category. The only sense of such an amendment would be to put the carrier – the owner of a lorry, camper, caravan or whatever – at a disadvantage in so far as there were unknown passengers on their vehicle.
I want to make the law operable. If somebody is travelling in a vehicle unknown to its owner and the owner could not, with reasonable care, know they were on board, no crime will be committed. However, if I say that the Act does not apply to somebody, for example, towing a caravan or a similar vehicle and have a definition that excludes them from the operation, the result will be that a clandestinely smuggled people or stowaways coming through the system will somehow be exempt if they travel in vehicles that are not covered by the Act. The target of the Illegal Immigrants (Trafficking) Act is those who knowingly, and for gain, smuggle people into the State. It has potentially very severe penalties for those who do so with bad mind.
This Bill has a much lesser aim – simply to create an incentive for those in charge of those travelling into the State in vehicles that they do not have on board people who should not be on board and that they check the documentation of those they know are on board. It will not be an additional imposition for somebody driving a jeep on to the ferry at Cherbourg with four golfing buddies, to take a practical example, because the ferry company will check them out anyway. If somebody is rolled up in a sleeping bag at the back of a vehicle, if somebody gets on to a vehicle in breach of the carrier's duty of care or if there is a container load of people at the back of a vehicle, the person driving the vehicle will commit an offence if they do not take reasonable care to ensure their vehicle is not being used for this purpose.
Joanna Tuffy (Labour)
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I move amendment No. 2:
In page 4, line 25, after "officers" to insert "if required to do so by such directions (if any)".
The reason we propose the insertion of the words "if required to do so by such directions (if any)" is that we believe the drafting of this section is defective and we intend to achieve clarity with our amendment. It is intended to make clear that total disembarkation should be mandatory only if required. The Minister said this was his intention on Committee Stage but we do not believe the section makes that clear.
Michael McDowell (Dublin South East, Progressive Democrats)
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The amendment would insert in page 4, line 25, after the word "officers", the words "if required to do so by such directions (if any)". It would then read that the carrier concerned shall ensure that all persons on board the vehicle seeking to land in the State or to pass through a port in the State in order to travel to another state disembark in compliance with any direction given by immigration officers if required to do so by such directions, if any. That would be an omelette. The Senator has come forward with many useful amendments and I accepted a number of them on the last occasion. Some, indeed, tidied up and removed mistakes and drafting errors but to accept this amendment would be to insert a drafting error because it would make it almost unintelligible and would not add anything to the meaning of the section.
Amendment, by leave, withdrawn.
Joanna Tuffy (Labour)
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I move amendment No. 3:
In page 4, after line 46, to insert the following:
"(4) This section shall not apply to an alleged contravention by a person who arrives in the State having a well-founded fear of persecution in his or her country of nationality, or (in the case of a Stateless person) habitual residence.".
The Bill should not be a measure which will prevent people entitled to asylum coming to this State at risk to their lives and force them into alternative arrangements which are dangerous. It is important to add this subsection. It does not, in any way, dilute the measures the Minister wishes to introduce, but if the person were found to be a refugee the carrier would be exempt.
Michael McDowell (Dublin South East, Progressive Democrats)
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I oppose the amendment. Although I understand the intention behind it, which is to exempt those entitled to protection under the 1951 Act from the operation of the Bill, it would be unworkable. It would not be possible to determine at the point where a carrier had committed an offence under the subsection whether the person in question was or was not a person having a well-founded fear of persecution. Take the case of someone who arrives at a check-in desk at Orly Airport or the ferry terminus at Cherbourg and presents to a carrier for carriage to Ireland. If the subsection was applied, it would mean it would be lawful for the carrier to carry the person to Ireland if the carrier believed that, notwithstanding the fact that he or she had no documents, visa or legal entitlement to come to Ireland, the person was a genuine refugee.
What would happen at the check-in desk at Orly Airport or Amsterdam Airport where someone was standing at the head of a queue and was asked for a ticket and passport and a Nigerian passport was produced but there was no Irish visa? The Aer Lingus, Air France or Ryanair employee would say the person did not have documents for Ireland and could not be carried on the airline. The passenger would say he or she intended claiming refugee status there and the carrier would tell the person he or she could get on the aeroplane because with this section the carrier would not be committing an offence under Irish law. It would mean that anyone could pass through any checkpoint by asserting that they intended coming to Ireland to claim asylum. Only fools would queue with genuine documentation if by repetition of the verbal formula "I am on my way to Ireland to claim asylum" one could walk up the gangway on to the aeroplane or boat. That effectively is what I am being asked to do. If carriers had to satisfy themselves at the airport that the person was liable to be persecuted and carry out a mini inquiry at the harbour wall in Cherbourg or in the middle of the airport in Paris to find out if this was true, we would be turning check-in employees at ticket counters into immigration officers for the Irish State.
The process implied in the amendment is not acceptable. I cannot accept the amendment as it would tear up the Bill. There would be no point in having it if it was to apply to anyone claiming to be a refugee. He or she would walk on to the aeroplane without any determination being made of whether he or she was a refugee and become our problem here.
As an earnest of the Government's commitment to the full expression of the policy, I introduced an amendment on Committee Stage, now section 2(9), which addresses in statutory form the undoubted assertion by opponents of the Bill that it will compromise our obligation under the 1951 Geneva Convention on the status of refugees and its related protocol, the 1967 New York Protocol.
That is as far as I can go to meet the point, otherwise I might as well have no carrier liability. As I said on Committee Stage, Ireland is the only state within the European Union which does not have carrier liability. That is not a choice which is even open to us because we are required by European law to introduce a system of carrier liability. We cannot introduce a system which has virtually no meaning. If the amendment was to succeed, this provision would cease to have any meaning and become just a licence for anybody to get on an aeroplane and come to Ireland. It would worsen the situation rather than improve it.
Joanna Tuffy (Labour)
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It is being withdrawn but I would like the Minister to reconsider the matter.
Amendment, by leave, withdrawn.
Rory Kiely (Fianna Fail)
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Amendments Nos. 4 and 5 are related and may be discussed together.
Sheila Terry (Fine Gael)
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I move amendment No. 4:
In page 5, line 17, to delete "may from time to time" and substitute "shall".
Having raised this matter with the Minister at an earlier meeting, I am now asking him to tighten up the provision thus making it imperative that guidelines would be drawn up. Section 2(8) should state "the Minister shall draw up and publish guidelines .". If we leave it as suggested, that "the Minister may from time to time draw up and publish guidelines .", it will be far too loose. For that reason I am seeking the new wording using the word "shall". To compensate for this, I have tabled amendment No. 5 which seeks to have the Bill reviewed annually. That would make it absolutely clear that the guidelines would be drawn up and that they would be reviewed on an annual basis.
Joanna Tuffy (Labour)
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I second these amendments. The Minister should be obliged to publish guidelines because the Bill places a substantial obligation on carriers to which it will be difficult for them to adjust. It is important to state clearly what they will have to do. In addition, the guidelines should be reviewed regularly.
Michael McDowell (Dublin South East, Progressive Democrats)
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I am opposed to the amendment because it would introduce an absolute requirement on me to draw up and publish guidelines on a mandatory basis, instead of stating I should do so "from time to time". If the amendments were agreed to, the subsection would then state, "The Minister shall draw up and publish guidelines concerning steps to be taken by carriers to ensure compliance by them with this Act to be reviewed annually." First, I need more flexibility than that and, second, the phrase "from time to time", which it is proposed to delete, is designed to give me that flexibility. Under the terms of the Senator's amendments, if I noticed a mistake in the guidelines or an inadequate provision which could lead to undesired or unfair results, I would have to wait for an annual review before I could change it. The proposed text allows me to do so "from time to time" as the occasion arises.
As the Government anticipates it will have the co-operation of commercial carriers – that is the essence of the Bill – it simply would not make sense for the Minister of the day not to issue guidelines to assist carriers as regards what they should or should not do in order to comply with the requirements of the Bill. For instance, the guidelines may cover what was or was not adequate documentation, or what documentation might be sought.
The guidelines will be of assistance and I submit that the current formula is preferable because it is flexible and allows them to be altered from time to time. The implicit justification for the amendment, that the Minister of the day would try to operate the system without guidelines for any substantial period, is an unlikely scenario. There is no reason the Minister would not be attracted to issuing guidelines to secure maximum co-operation from the carriers.
A voluntary code of practice for the haulage industry was agreed in 2001. This encourages best practice by hauliers to prevent illegal immigrants entering a state hidden in vehicles. That followed discussions involving the Departments of Justice, Equality and Law Reform and Public Enterprise, the Garda national emigration bureau and the Irish Road Hauliers Association. The Immigration Bill 2002 provides that hauliers may be prosecuted if they are responsible for bringing people into a country with inadequate immigration documentation. There have been discussions between the Department and the IRHA with regard to this legislation. Informal guidelines are already in place and I ask the Senator to accept that including a mandatory provision such as this will only complicate life. For example, if it transpires that a guideline, for whatever reason, is undesirable, should the Act fall into abeyance between a problem arising, on one hand, and it being solved by further guidelines, on the other? There would be a free for all in the period during which I tried to deal with a problem that had already arisen in respect of one guideline, which I wanted to withdraw and replace.
Sheila Terry (Fine Gael)
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I withdraw the amendment, based on what the Minister has said. My intention was to make the provision obligatory because it is too open.
Amendment, by leave, withdrawn
Amendment No. 5 not moved.
Joanna Tuffy (Labour)
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I move amendment No. 6:
In page 6, line 24, to delete "both, or" and substitute "both.".
My colleagues and I do not disagree with the need for penalties for employers who employ illegal immigrants. However, the penalties in paragraph (b) are over the top. I already raised with the Minister about the need to reform the system so that there is provision for asylum seekers to work after a reasonable period and that there should be a proper green card system in place. I notice the Tánaiste is making adjustments to the work permit system. This is a case of crisis management instead of having an overall coherent system to deal with the employment of non-nationals.
While I agree there should be penalties, the penalty included in the legislation does not recognise the spirit in which people employ non-nationals. I have given an example of Irish people who have been employed illegally in other countries. As it might not be a case of an employer setting out to exploit a non-national worker, this section should be reconsidered. I ask the Minister to explain how the Government will rectify the problems to which I have referred.
Jim Walsh (Fianna Fail)
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If the amendment was accepted it would mean the penalty would stand at €3,000, which would be totally inadequate. It would be a strong inducement to employers who would be of a mind to break the law because it would be quite profitable to do so. The points made by the Senator could be countered by recognising that the prescribed ten years or €250,000 do not exceed the particular penalties. This leaves it open to judicial discretion, which is the correct way to approach the issue.
There could be a fairly serious breach of the provisions of the Bill and arguments have been made that many people have profited by employing non-nationals. There is anecdotal evidence that employers may be currently employing non-nationals under permit where national workers are available. This would obviously put them in a position where they would be making substantial profits. The penalties would need to be set at a level which would act as a deterrent and be commensurate with the offence if it was a very serious breach of the section.