John Gormley (Dublin South East, Green Party)
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Question 329: To ask the Minister for Justice, Equality and Law Reform the number of asylum seekers and refugees who have been here for a number of years without having their status clarified; the steps he intends to take to remedy this situation, such as the granting of an amnesty; and if he will make a statement on the matter. [17077/06]

Michael McDowell (Dublin South East, Progressive Democrats)
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A distinction firstly needs to drawn between a 'refugee' and an 'asylum seeker'. A refugee in this State is a person whose asylum claim has been investigated and is found to meet the definition of 'refugee' as set out in Section 2 of the Refugee Act, 1996, as amended. By contrast, an 'asylum-seeker' is a person who has lodged an asylum claim but whose claim for refugee status has not been finally determined.

Over recent years because of a significant level of investment in the area of asylum determination by the Government, very considerable work has been undertaken by the Office of the Refugee Applications Commissioner (ORAC) and the Refugee Appeals Tribunal (RAT) as well as within the Irish Naturalisation and Immigration Service (INIS) generally to deal with applications for asylum on hands and speed up processing times. The work involved has resulted in a situation where processing has continued to move strongly in both ORAC and RAT. At the end of March 2006 there were 2,609 cases on hands in both agencies compared to some 7,000 cases on hands at the end of January 2004. With specific reference to the Deputy's question, it should be noted that the number of applications over six months in the ORAC and the RAT at the end of March 2006 stood at 484 as compared to some 6,500 at the end of September 2001. The backlog of applications has been eliminated in ORAC with only 63 cases on hands over six months at the end of March 2006 and some 421 in RAT a significant number of which are at an advanced stage of processing. There is continued momentum in processing timescales for asylum applications with new arrangements for speedier processing of prioritised asylum applications (from nationals of Nigeria, Romania, Bulgaria, Croatia and South Africa) introduced from January 2005 with a 17 working day processing time at first instance in ORAC and 15 working days at appeals stage in RAT. Currently, almost 40% of total applications fall into the prioritised category. With effect from 1 November 2005, all applicants for asylum are notified of their interview date by the Office of the Refugee Applications Commissioner at the time they make their applications. The interview appointment is normally within 20 working days of application. However, for those applicants within the prioritised category, interviews in ORAC are held, more speedily, within 9 to 12 days. The typical processing time in the ORAC for non-prioritised cases is in the region of 8-9 weeks. The average length of time taken to process and complete substantive appeals in the RAT is approximately 14 weeks.

This significant investment of resources by the Government into the asylum determination process in recent years to meet our obligations under the 1951 Geneva Convention relating to the status of refugees, has had a very significant impact in terms of processing times and the elimination of backlogs of claims outstanding.

I have no intention to grant any amnesty to asylum seekers currently in the asylum determination process. Such a move would impact negatively on the very considerable progress made in terms of the reduction in asylum applications on hands and in processing timescales as well as on the State's ability to accommodate the individuals concerned. Moreover, it would also act as a 'pull factor' by increasing applications being made in the State. The Deputy will be aware that the present trend in applications for asylum is substantially downwards from a high of nearly 12,000 in 2002 to some 4,300 in 2005, a fall of almost 64%.

By way of illustration in relation to pull factors, I would refer the Deputy to the fact that a considerable increase in asylum numbers was experienced in the aftermath of the July 1999 decision to allow asylum seekers access to the labour market. This led to a three-fold increase in the average number of applications per month, rising to 1,217 applications in December 1999 as compared to an average of 364 per month for the period January to July 1999.

In relation to what follows the asylum determination process, the Deputy will be aware that following the making of a negative recommendation to the Minister by the Office of the Refugee Applications Commissioner (or by the Refugee Appeals Tribunal if an appeal was unsuccessfully made), the person concerned is informed in writing that it is proposed to make a deportation order in respect of him/her. The person concerned is then afforded three options vis a vis their position in the State, in accordance with Section 3(3)(b)(ii) of the Immigration Act, 1999 (as amended), namely to leave the State voluntarily, to consent to the making of a deportation order or to submit, within 15 working days, written representations setting out the reasons why he/she should not be deported i.e. why he/she should be allowed to remain temporarily in the State.

Furthermore, in determining whether to make a deportation order or to grant temporary leave to remain in the State to a failed asylum applicant, I must have regard for the eleven factors set out in Section 3(6) of the Immigration Act, 1999 (as amended), including consideration of any representations submitted by or on behalf of the person concerned in support of their application to be granted temporary leave to remain in the State. I must also have regard for the provisions of Section 5 of the Refugee Act, 1996 (as amended) on the Prohibition of Refoulement before signing a deportation order. This means in essence that the safety of returning a person to their country of origin, or refoulement as it is commonly referred to, is fully considered in every case when deciding whether or not to make a deportation order. Refoulement means that a person shall not be expelled from the State or returned in any manner whatsoever to a State where, in my opinion, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. My Department uses extensive country of origin information drawn from different independent sources, including the United Nations High Commission for Refugees, in evaluating, in each individual case, the safety of making returns to third countries.

It does not follow that a failed asylum seeker is automatically either issued with a deportation order or is granted leave to remain and the terms of the Deputy's question need to examined in that context. Temporary leave is considered regardless of whether representations have been made by, or on behalf of, the person concerned. Consequently, records are not maintained which would distinguish the number of cases where representations have been received from those where no representations have been made. Moreover, it must be borne in mind that many of those who failed the asylum process, and who did not opt to return voluntarily on notification to the Department or consent to deportation, nonetheless left the State of their own volition before a decision to deport or grant leave to remain was made.

Further, many persons who applied for asylum in the period concerned have since received alternate forms of leave to remain outside the process in the Immigration Act, 1999 described above. For example, some may have married Irish or EU nationals and many would have been granted leave to remain based on their parentage of an Irish Born Child. In this latter respect, 10,584 persons were granted leave to remain based on their parentage of an Irish Born Child under the procedure which operated prior to the Supreme Court Judgment in the L&O case in January, 2003 and a further 16,693 were granted under the subsequent IBC(2005) Scheme.

Following the conclusion of the IBC/05 Scheme, it is my intention to undertake an analysis so as to determine the number and nature of the remaining cases on hands of persons who have not yet had a final decision on their applications to remain temporarily in the State, particularly where such cases have been on hands for some time. Indeed it is likely that many such persons are no longer in the State. The Deputy will appreciate that such reviews are part and parcel of any processing area which are resource intensive and, as such, priority attention has to be given to particular caseloads, as evolving circumstances dictate.

Overall, I am satisfied that the means by which asylum applications and applications made by rejected asylum applicants for temporary leave to remain in the State are processed are case specific and comprehensive and I see no justification for the granting of any amnesty in this area.