Joint Committee on Justice díospóireacht -
Tuesday, 30 Apr 2024

EU Regulations and Directive on International Protection, Asylum and Migration: Discussion (Resumed)

An Cathaoirleach

I welcome our witnesses. I thank them for joining us. I will come to them all individually in a moment. The purpose of today's meeting is to consider the directive on international protection, asylum and migration, sometimes called the EU asylum and migration pact, from the European Parliament. This is part two of our deliberation. We met with the Minister last week, when we had some questions and answers on the directive. We are again considering it today.

I welcome our guests individually and collectively. Ms Fiona Hurley, CEO of Nasc, the Migrant and Refugee Rights Centre, is very welcome. I am informed that "nasc" is the Irish for "link" so that organisation is aptly named. She is joined by Mr. Kostas Kapantais, advocacy service manager at Nasc; it is good to have him with us. They are joined by Mr. Nick Henderson, CEO, and Mr. Alan O'Leary, both from the Irish Refugee Council; Ms Edel McGinley, director, and Mr. Neil Bruton, campaign manager, from Migrant Rights Centre Ireland; Mr. Enda O'Neill and Ms Maria Hennessy, assistant protection officer, from the United Nations High Commissioner for Refugees; and last but by no means least, Mr. David Leonard, barrister-at-law. They are our witnesses. As is normal procedure, we have observers from the Department of Justice. I welcome Ms Maeve-Anne Kenny, principal officer. While the Department will serve as an observer and will not make statements as such, some questions may be directed to her in due course if matters arise she is able to advise us on. We may ask for her opinion as things arise.

I will inform the witnesses of parliamentary privilege and the usual protocols. I remind all that the long-standing parliamentary practice is they should not criticise or make charges against any person or entity in any way that might be regarded as damaging to his or her good name or is potentially defamatory. If their statements stray over that line, I may direct them to discontinue their remarks. Please comply with that direction if given. We do not have any witnesses attending remotely so further warnings in that regard do not apply.

The way we will conduct our business is to have each organisation make a brief opening statement. Such statements are usually limited to three minutes. We will then go to members in a round-robin fashion and allow them to put questions and make submissions. We will allow three minutes per organisation for opening statements. There is a little latitude but if the representatives do not feel they have said all they have to say at that point, which they probably will not, never fear. They will have three hours to come back in and out as the meeting goes on. It is generally best to get the ball rolling. We can then delve into different matters that arise.

I call Ms Hurley from Nasc. As I said, she has three minutes to make her opening statement.

Ms Fiona Hurley

I thank the Cathaoirleach and members for the opportunity to share our observations on the new pact on migration and asylum. Nasc, the Migrant and Refugee Rights Centre, has been working with refugees and asylum seekers for more than two decades. Our view is that the EU migration pact is fraught with significant flaws. We are concerned that procedural guarantees and protections for asylum seekers will be sacrificed for deterrence and creating efficiencies in processing.

Given the time limits, I have confined our comments to three key areas of concern. First, the screening process and accelerated border procedure that would be created by the asylum procedures regulation is detrimental to the freedom of international protection applicants. Those who are processed under the border procedure will not be authorised to enter a state. Instead, their cases will be processed in closed facilities for up to 12 weeks in what is called "blurry soil", that is, in designated facilities close to the border that will not be considered the territory of the member state. Families with children can be held in these facilities, raising serious concerns about the well-being and rights of minors in these settings. The mandatory timeline of just 12 weeks imposed by the asylum procedures regulation to complete applications, appeals and removal decisions is exceedingly challenging and may result in rushed and inadequate assessments that compromise the integrity of the asylum process. I am concerned about the adequacy of legal aid that can be provided under these rushed timelines.

Furthermore, we have found that it often takes weeks or even months for asylum seekers to feel safe enough to disclose traumatic experiences, such as domestic, sexual and gender-based violence, DSGBV, or torture. I am concerned that these accelerated processing times may prevent victims and survivors from fully disclosing their experiences or seeking necessary support. I doubt authorities' ability to identify vulnerable applicants within such tight timeframes. The application of the border procedure to individuals deemed to have misled the authorities poses serious risks to the fairness of asylum procedures and fails to understand that those most at risk of state-led persecution are least likely to be able to apply for national identity documents before fleeing their country. The provisions targeting applicants from countries with low recognition rates risk creating a self-reinforcing cycle of rejection. Accelerated procedures increase the likelihood of negative outcomes for applicants from these countries and the crisis and instrumentalisation regulations allow derogations on procedural standards.

Second, the asylum migration management regulation’s mechanism for solidarity among EU member states is unlikely to achieve its goals. While countries are given options to contribute financially or provide technical support, the likelihood of successful implementation is dubious. Many states may opt for financial contributions to shift responsibility to border states or opt not to implement the solidarity mechanism at all, despite the threat of legal action, exacerbating existing disparities in asylum distribution.

Third, the pact's reliance on externalisation raises serious ethical and legal concerns. By outsourcing border control to countries outside the European Union, including countries with poor human rights records such as Turkey, Libya and Tunisia, we risk not just turning a blind eye to human rights abuses, violence, exploitation and lack of access to asylum procedure, but funding and becoming complicit in these human rights violations.

Mr. Alan O'Leary

I thank the Chair and committee members. We believe the reforms contained within the EU pact on migration and asylum reflect an effort to limit access to protection for refugees across Europe. The reforms will result in fewer safeguards for fundamental rights, significant provisions for detention and reduced access to legal advice. The following are some of the Irish Refugee Council's main concerns.

Border procedures, accelerated procedures and legal fiction of non-entry curtail full access to a just and humane asylum procedure. They create a space and systems with less procedural safeguards where fundamental rights may not be observed, and systematic and extended detention, or de facto detention, may be facilitated. The accelerated border procedure risks overlooking those who are most vulnerable and in need of our protection. These cases often require legal advice and careful consideration. People who arrive without documentation and those who have been forced to cross a border illegally will be subject to a mandatory border procedure and may be detained or have their movements restricted. This will include applicants from countries with high rates of refugee declarations, including Afghanistan and Somalia, who often have no alternative other than to travel by irregular means, without passports, or use substitute documents. The pact penalises people who have no other options.

People who arrive from countries with a recognition rate of 20% or less will be subject to the same procedure. In the context of an average Irish refugee recognition rate of approximately 35%, a recognition rate of 20% reflects a substantial need for protection. We are concerned that the pact overrules the right of appeal. Deadlines are unrealistic and appeals are not automatically suspensive. This means applicants may be returned to a country where they face persecution or harm and before a final decision is made on their protection application.

This would be a violation of the principle of non-refoulement. In Ireland, around 35% of appeals result in a grant of a protection status and that figure is 20% for countries designated as safe.

Limited vulnerability assessments during the screening procedure, which the Minister states will be replicated in Irish law, will not be sufficient to identify particularly vulnerable people and, coupled with provision for detention, could have significant consequences for the rights and well-being of vulnerable people. We have serious doubts that applicants will receive adequate vulnerability assessments within the seven days or less allowed for in the screening regulation before they are possibly detained, subject to a border or accelerated procedure, and returned or deported to a country where they may face persecution or harm. The outcome of the screening procedure has no appeal remedy.

The fast-tracking measures outlined in the pact could fail to recognise the individual circumstances and needs of vulnerable applicants and deny protection to those who need it. Families with children are not exempt from border procedures and can be detained. We are concerned that unaccompanied minors may be incorrectly identified as adults and erroneously subject to the border procedure. In Ireland, failures in the identification of unaccompanied minors have resulted in children sleeping rough and sharing accommodation with adults for extended periods. The border procedure does not allow people to apply for other forms of protection, such as humanitarian permission to remain, which could especially impact survivors of human trafficking and stateless persons, especially as they will have limited access to legal representation.

Over the past year, at EU level, the percentage of asylum applications that received a protection status fluctuated at around 48%. In Ireland, that figure has been around 30% at first instance. For so-called safe countries of origin, the recognition rate is about 20%. Given the very rigorous consideration of protection applications at first instance and appeal, this shows people have real protection needs which are recognised by the State. Underlying our concerns is the fact the EU’s share of the world refugee population has decreased from 70% in 1993 to under 20% since 2018. Approximately 74% of the world’s refugees are hosted by low- and middle-income countries outside the EU.

While the pact began with good intentions, it has been gradually eroded by various member states' hardening positions. We are not opposed to harmonisation and common standards. However, if anything, we need compliance with the existing body of legislation rather than a continued need for reform.

Ms Edel McGinley

I thank the committee for the invitation. For more than 20 years, MRCI has been working to challenge injustice with people in precarious and poorly regulated employment sectors, with undocumented people and with victims of trafficking.

Throughout history, people have risked everything in the hope of a better life. Most of us believe all people deserve to live in peace and safety, free from fear and danger. Whether we are black, white or brown, have lived here all our lives or come here seeking safety, most of us just want to make a better life for ourselves and our families.

Ireland is a country with a long history of migration. When times have been challenging, people the length and breadth of the country have moved to seek a better future for themselves and their families, and we continue to do this. In the past two years, many local communities have led the way in treating people coming to our shores in the way we would want to be treated. From Tidy Towns to men's sheds, ordinary decent people put out a hand of welcome. If any one of us feared for our life or for our family, we would like to know there are others who would help us to safety.

By having a fair asylum process, we can do that. We can show that when people are in harm’s way, we will do the right thing. When we treat people seeking asylum with compassion and dignity, they can get on with rebuilding their lives in our communities. We cannot let a few bullies distract us, whip up fear and spread dangerous lies about those of us who are different because of where we come from. We cannot fall into this trap.

Our policies for people seeking asylum should respect human dignity, but the Government is choosing to sign up to a system that will erode rights and dignity. This arbitrary group approach disregards the many reasons people may have been forced to move and the difficulties they face on their journeys. All people deserve to have a system that fairly examines their individual case in a safe space, with time and legal support to assert their rights.

These worrying proposals also extend to people living and working in Ireland long term. It means that people could be singled out on the street because they look different. It means people's right to due process is under threat. The potential for harm to people and communities is immense.

The solidarity measures may see wealthy countries like Ireland simply pay from our large budget surplus and not support our fair share of people. Doing what is right means upholding solidarity and fairness. We cannot turn an issue of human rights into pay-offs and political bickering. We need to remember that human rights are the tools we all rely on for our basic rights and freedoms. They belong to every person from birth until death. We cannot simply allow these to be eroded by a few people who have managed to spread fear and disinformation and baited politicians to adopt regressive and restrictive policies such as this one.

We all have a stake in making the world a safer place and in doing our fair share. People need a chance to rebuild their lives and integrate into our communities, and the State needs to also invest in the material needs of local communities so that all can flourish and prosper.

Most of us believe that immigrants contribute to our culture, community and workplaces, and that we are all the better off because of it. We call on the committee to ensure Ireland rejects regressive policies that row back on human rights and dignity in all their forms for all people.

Mr. Enda O'Neill

I thank the members of the committee for the invitation to address them on UNHCR’s views on the proposed motion concerning protocol 21 and Ireland’s opt-in to seven instruments of the EU pact on migration and asylum.

The current EU asylum system has not been implemented in a way which has managed asylum for member states or promptly delivered protection in practice for refugees. Dangerous practices, such as denial of access to territory, pushbacks and the non-implementation of fair and efficient procedures and solidarity, cannot continue if they undermine a well-functioning EU asylum system. The long-term lack of agreement has also led to a rise in externalisation proposals, shifting responsibility away from Europe and putting access to territory and asylum in the EU under threat. We hope the eventual adoption of the pact will stand in firm opposition to these proposals.

As population movements increase globally, addressing the challenges posed by forced displacement demands a coherent and effective strategy. We believe the pact has the potential, if implemented with sufficient safeguards, to ensure access to the territory and asylum in the EU for individuals seeking international protection while ensuring respect for human rights. Accordingly, UNHCR welcomes the agreement reached between member states and the Council and the European Parliament on the pact and its anticipated adoption in the coming weeks. However, legal reform is merely the first step. Our attention must now turn to the pact’s protection-sensitive implementation. Resources should be dedicated to establish fair and fast asylum procedures with the necessary procedural safeguards, including protection-sensitive and child-sensitive border procedures as well as adequate material reception conditions, in particular for vulnerable groups. We believe detention should be a last resort and we welcome the assurances provided by the Minister, Deputy McEntee, on this point at this committee last week. We also believe border procedures should not be applied to unaccompanied or separated children, including for cases of security or public order. The use of such procedures is also not suitable for victims of trauma or trafficking and persons with mental disabilities. These elements must form the cornerstones of the regional and national implementation plans.

A fair distribution of responsibility and solidarity is another vital cornerstone of the new pact. UNHCR welcomes that solidarity has been codified into law for the first time and has long called for a functioning solidarity mechanism with responsibility sharing across the union to support EU member states where most asylum seekers arrive. We welcome the mandatory but flexible solidarity contained in the pact and call on states to prioritise relocation as a solidarity measure over other options. We strongly discourage utilising financial solidarity to invest in deterrence measures.

UNHCR looks forward to working with the Government and Members of the Oireachtas to transform the pact’s commitment into concrete actions. I thank members for their attention and look forward to an exchange on these issues.

Mr. David Leonard

I thank the Cathaoirleach and the committee for the invitation to attend today. Some people fear the pact will lead to greater migration flows into Ireland and are concerned the European Court of Justice will now have the final say on interpreting the substance of asylum law. In reality, that has been the position since the original qualification directive in 2006, and that power residing in Luxembourg has not caused any problems for the State.

Concerns have been raised that new burden-sharing obligations will lead to greater flows of people here. However, any burden-sharing may be a proportionate price of remaining within the European club when it comes to asylum and immigration.

Some advocacy groups are concerned that the system will be less fair. However, several key improvements in procedural fairness can be identified. The asylum interview must now be the subject of a video or audio recording which must be shared with applicants and their lawyers before the decision is made. This is an improvement in fairness. If applicants claim that inconsistencies in their accounts were down to a bad interpreter, that can be objectively checked, helping applicants where there was a genuine interpretation error. It will help the authorities if the interpretation difficulty was simply manufactured. There is a new EU law right to have relevant documents translated. There is a fairer test for whether an applicant should be permitted to make a subsequent application. These improvements are not push factors that will attract more applicants, rather, they are procedural improvements that should lead to fewer judicial reviews.

Concerns around the border procedure have been raised by some advocacy groups. However, a reading of the relevant provisions shows that the border procedure manifestly does not mean mandatory detention. It is clearly and unambiguously stated in the proposed law that the border procedure must enable a complete and fair examination of claims. The courts both in Dublin and in Luxembourg will not shy away from condemning any implementation of the border procedure that leads to unfairness.

There is no interest group on either side that is entirely happy with the pact. This is not necessarily a sign that it is bad, rather, this may indicate an imperfect consensus based on compromise. When upgrading a computer network it is dangerous to leave one computer running the old software. There is a risk to Ireland's interests if we are left running the old version of EU legislation, crudely tacked on to the new legislation in force everywhere else. The edges of the old system not seamlessly meeting those of the new is the sort of thing that could easily lead to generic judicial review arguments, applicable in every case, that could cause paralysis in decision making.

An Cathaoirleach

I thank Mr. Leonard and all the witnesses for their opening remarks. That sets the context for our questions. I am now going to invite members of the committee to take the floor. The first member offering is Deputy Pringle.

Deputy Thomas Pringle

I thank everybody for the presentations to the committee. We are going through this procedure today but it does not have any bearing on the actual decision that is being made. The decision will take place in the Dáil when it is scheduled to come up. This committee hearing is basically around the information to inform the decision-making process when we get there.

Last week at the committee the Minister's view was that we have no choice but to adopt this procedure and continue on with it. We adopted the previous procedures. That relates to what Mr. Leonard said that basically we cannot stay outside of it, so it is a moot point and we have to go with it. That was the Minister's view last week. Is that the view of the witnesses in relation to it and is that the view would be shared by all? That question is open anybody who wants to answer it.

Mr. Nick Henderson

Unlike the experience of the UK, which left the European Union entirely, it is theoretically possible that Ireland could still operate its asylum legislation in a way that would be consistent with European Union law and not be part of the pact. Presumably, it could be negotiated. It would still have some access, or full access to, the devices that are currently in existence including, the Dublin regulation. From our perspective, we have to look at this through the lens of our mission, which is to advocate for people seeking protection. The widespread view of more than 160 organisations throughout Europe and the European Council on Refugees and Exiles, ECRE, of which we are member, is that this pact represents a downward slide in procedural rights for refugees and for people seeking protection. I do not think it is binary. While it would possibly be awkward, it would still be possible for Ireland to exist within the wider orbit of European Union asylum law, if not within the immediate orbit of its asylum law, if that makes sense.

Mr. Enda O'Neill

It would depend on which instruments we are talking about opting into or not opting into. If we were to opt into none of them, we would be in a very complicated situation in terms of the Dublin regulation, for example. If we are still bound by the Dublin regulation but no other country in Europe is, it would be very complicated to imagine how that might work in terms of identifying the member state responsible for determining that case. Similarly Eurodac is quite a large reform of that system. I believe new computer system databases will be involved in that, so there may be technical and practical issues around accessing existing systems if we are the only country still applying the old laws. From a legal perspective, as alluded to by Mr. Leonard, this is the third iteration of the common European asylum system. We opted into some instruments of the first one and some instruments of the second one. Therefore, if there is a third iteration and we have a pick and mix from different times, as the pacts are closely interlinked, it would probably result in legal complications in trying to interpret certain provisions at various times.

Deputy Thomas Pringle

The witnesses and all the bodies here are probably hedging their bets in terms of their submissions. That is probably because there is a sense that the UN would have a wider remit maybe. Mr. O'Neill seems to be giving a lot of hope to this new pact, that it is going to work. The view from the other organisations is that it is detrimental to asylum seekers. In practice, maybe what they are saying sounds good but what they actually do in practice is not very good. That is evidenced by the graveyard in the Mediterranean. Are Mr. O'Neill's comments made in the hope that it will be implemented properly or are they based on reality?

Mr. Enda O'Neill

Our view is that the legal instrument is just one part of the situation. The member states and the European Commission are working on implementation plans that are starting soon. We expect them to be ready by the end of the year. That is a really crucial part of the process. Also, within all of the different instruments, there is still a great deal of discretion left to member states as to how they apply the provisions. I would still expect to see quite a variety in how it is applied within member states.

As I mentioned in our opening statement, there are issues with compliance with the law at present, so changing the law will not automatically fix that. What it does, however, is provide a much more comprehensive framework throughout the EU for managing the situation. We believe that international co-operation is essential to manage the movement of people. One only has to look at the media over the past week for an example of that. We need to have co-operation between neighbouring countries and across Europe in order to manage situations effectively. The pact is the best opportunity to do that.

Deputy Thomas Pringle

Can I come back in?

An Cathaoirleach

Yes, of course. We will have a second round. Senator Ruane is next and then Senator McDowell, Deputy Ó Laoghaire, if he is back in the room at the time, and Senator Gallagher. That is the running order at the moment.

Senator Lynn Ruane

I thank everyone for their presentations.

An Cathaoirleach

We will come to the visitors afterwards. Apologies for interrupting the Senator. There are visitors in the room. To observe protocol, we will take committee members first and then go to visitors at the end.

Senator Lynn Ruane

Much of it speaks to the concerns I have with the pact. When we think of international protection and asylum we should be thinking of enhancing people's rights. The pact is a punitive measure. It is not really about international protection. It is actually about detention. The moment we begin to speak about detention of any group, especially under the conditions that are laid out in the EU pact, it is extremely concerning. Even the idea of a last resort is concerning.

People say we use prison as the last resort in Ireland, yet our prisons are overflowing with people who should not be there. I do not really know where the measurement of last resort comes for people. We only have to look at Greece, how people have been detained there and how the EU has stood over that. The EU has also been making deals with Tunisia and other countries about borders, and other stuff is happening with regard to Albania. I am not sure exactly to whom I should address this question but perhaps one of the witnesses will comment on where they see the biggest risks for violations of human rights with this pact. The safe third country is one aspect and potentially the access to fair and just legal proceedings should a person not be granted access. A witness might also speak to why the third country issue is so problematic, especially when we consider people being able to have freedom and choice in where they seek refuge or asylum, which may be for a number of reasons such as the political climate there, because they have family there or other ties that were removed.

On the safe third country and the access to legal rights, reference was made to the amount of appeals that are overturned. Obviously if a person is going through a truncated system of 12 weeks, there would be less information available within 12 weeks compared with an appeals process. Perhaps we could home in on that and get some comment on where we see the biggest risks for violations of human rights.

An Cathaoirleach

Is that question for Nasc first?

Senator Lynn Ruane

Yes.

Ms Fiona Hurley

I thank the Cathaoirleach for the "link" comment.

An Cathaoirleach

It is a good name.

Ms Fiona Hurley

We are very concerned about the border procedure. It might not be referred to as detention and is explicitly not referred to as detention in the EU migration pact, but if a person is required to reside in a particular designated facility and if that is not considered the territory of the EU, is that de facto detention? What will that facility actually look like when it is implemented? We are concerned about the 12 weeks from start to decision, including a return decision. We work with people who are arriving in the State and, during the first 12 weeks, people are in a whirlwind. They have just moved country and they do not have the headspace to engage in any of this, including trying to ensure someone has legal counselling in that time. We do not know what legal counselling will look like as opposed to legal representation, which has a very separate and specific meaning. With legal counselling, is it with someone who is suitably qualified and knowledgeable to speak to the individual about the intricacies of their case, particularly because they have already been identified as someone who may have a weaker case? Will the legal counselling identify whether the person might be a victim of trafficking or a victim of domestic, sexual or gender-based violence and how do they raise those submissions? How does the person get a medical legal report within that 12-week process to support the fact he or she is a victim of torture? This is not happening at the moment. We are concerned these vulnerabilities are going to be missed. At present the State is not able to complete vulnerability assessments for international protection applicants. There will need to be a huge amount of resourcing put into legal counselling and into identifying people with vulnerabilities or people who need these special procedural safeguards. There is a huge risk in these facilities. We are quite concerned that children will be in these facilities with their families. We must consider what happens to these children. There is provision within the pact for access to education, but realistically how are these children accessing school in those 12 weeks and what happens to them afterwards? For us there are very significant concerns, especially those aspects of the border procedure.

Senator Lynn Ruane

Can we get a comment also on the issue of the safe third country?

Mr. Nick Henderson

As we read the procedure regulation, it gives greater opportunity to a member state to pass somebody back to a country they pass through or they have a connection to. That raises concerns for us on whether there is adequate human rights protection in that country. That is the thin end of a wedge of an attempt to reduce access to protection per se in the European Union. We are hugely concerned by it.

Mr. Neil Bruton

I echo what Ms Hurley has said. We are deeply concerned for the exact same reasons about this speeded-up procedure in that it prioritises efficiency and speed over fairness. We are deeply concerned it will lead to bad decisions that are going to mean people who have fled the worst of situations are going to be sent back to places where their life is under threat. We do not agree with that.

Senator Michael McDowell

I welcome our speakers today. There are a number of points I want to throw out there. Are there any of the regulations that anybody who is critical of the entire package actually favours? The Houses of the Oireachtas are being given a job lot: adopt the whole thing or nothing. I do not know about the legality and the constitutionality of this since they are all separate options. Are any of the NGOs that are opposed to the entire package content with any of the regulations and in favour of them?

Mr. Nick Henderson

There are nine regulations in total, seven of which are being proposed. To put it simply we can point to parts of each regulation that could be positive, as Mr. Leonard and colleagues from the UNHCR have said. Bearing in mind there are 1,300 pages of legislation here, an analysis of each leads us to conclude there is more bad than there is good. That is an attempt to answer the Senator's question.

An Cathaoirleach

If there were a pick 'n' mix option available, is there something the witnesses would pick?

Mr. Nick Henderson

As I understand it, each regulation would be proposed to the Dáil, not the total package.

Senator Michael McDowell

The EU resolution is for us to opt in for the whole lot. I do not know whether that is lawful constitutionally because each measure has to be separately voted on, but that is another issue. I am just wondering is there anything where the NGOs could say, for example, that the Eurodac regulation has no particular problems, or whatever.

Mr. Nick Henderson

The one that would stand out would be the asylum and migration management regulation. As I understand it, the initial genesis of that was an attempt to support southern member states, for example, Italy and Greece, who were taking a disproportionate number of people seeking protection. It was an attempt to relieve them of responsibility. That started with good intentions but became increasingly watered down to a point now where member states can pay their way out of responsibility. That initial good intention has been lost to a certain extent. That is also coupled with an update of the existing Dublin regulation and we have concerns with some of the devices that have been established and added to that Dublin regulation. That is the one we would pick that began with good intentions but has been gradually watered down, unfortunately.

Senator Michael McDowell

On the border procedure, Senator Gallagher elicited from the Minister on the previous occasion that, in her view, 80% of applications for international protection were from people who had come to Ireland from the United Kingdom, and this was based on the proposition that they seem not to have gone through migration controls at ports and airports. Does the border procedure necessarily apply to somebody who arrives at Mount Street having been here for a period of time? Do the witnesses have a view on this? It seems to me the border procedure appears to be tied to the notion that a person is unlawfully present and has been detected entering.

I have a query, however, as to whether the board of procedures and all the accelerated time limits will apply to someone such as a student on a visa who goes to the IPO and looks for refugee status. Will it apply to them?

Ms Fiona Hurley

I might be able to answer part of that. A student who is legally resident here might not be caught by part of the border procedure but they may, as I understand it, be caught by a separate aspect if they come from a country that has, say, a 20% or lower recognition rate. They could be caught by one or multiple provisions of the border procedure.

Senator Michael McDowell

I accept that the 20% recognition rate triggers certain consequences, but am I right in thinking it has to be part of the border procedure before that kicks in?

Ms Fiona Hurley

No, as I understand it, if you are from a country with a 20% recognition rate, you will move into that accelerated procedure.

Senator Michael McDowell

I see. Turning to Mr. Leonard, I do not know whether he was involved personally in the A and B case-----

Mr. David Leonard

No, I was not.

Senator Michael McDowell

Mr. Leonard can speak more freely about it, therefore. In that case, it seems that a lot of Ms Justice Phelan's findings went far beyond mere non-compliance with EU safe country criteria by the Minister's original determination and that there were other issues the judge parked, so to speak. Are they going to come back and bite us? Does Mr. Leonard have any insight into the capacity of the Oireachtas to deal with the menu of items that are hovering in Ms Justice Phelan's judgment but have not been decided?

Mr. David Leonard

I would think the Department of Justice will look at those aspects of the judgment that raised issues which could come up again, and it will probably look into whether those items can be addressed before they raise their head in more cases.

Senator Michael McDowell

It will not be a simple, technical Bill, therefore, that tweaks one little thing. If we are to deal with all the issues raised in the judgment, a lot of legislation will be involved. Does Mr. Leonard agree?

Mr. David Leonard

One of the issues that arose for potential determination related to whether there was a lawful basis for data sharing between Ireland and the UK. That is obviously not covered by anything to do with the EU migration and asylum pact but it is something the Department might want to consider, and I am sure it is considering it.

Senator Michael McDowell

Will the Rwanda plan disappear as an issue, in Mr. Leonard's view?

Mr. David Leonard

Who knows what is going to happen? I know the UK has passed an Act that states it is lawful to send people to Rwanda but we are in unprecedented territory, as far as I am aware, because that Act was passed to get around a judgment of the UK Supreme Court. It would not be a lawful Act here if it were passed by the Oireachtas because of our Constitution, but it will be interesting to see what will happen in the UK because it does not have a written constitution and it places a lot of weight on parliamentary sovereignty. Nevertheless, I would be slow to predict that the Rwanda plan will go ahead.

Senator Michael McDowell

If it does go ahead, however, and if the UK does start deporting people to Rwanda, are our courts going to say we will not deport people to the UK as a safe country?

Mr. David Leonard

Given that the UK Supreme Court found that the previous proposal to send people to Rwanda was unlawful because it could lead to a breach of human rights, if applicants are at risk of being sent to the UK and, in a chain, on a flight to Rwanda from the UK, it could be argued Ireland could not lawfully send them to the UK and expose them to that risk. There would definitely be case law on that if the Rwanda plan does go ahead and if people are at risk of it through being moved from here to the UK.

Deputy Donnchadh Ó Laoghaire

I thank all the organisations and acknowledge the importance of their work. It has always been challenging work and, in many ways, it has become more challenging. While we might not agree on every element of this proposal or any other policy, it is vital to have organisations speaking on behalf of asylum seekers and people who are vulnerable, who may not have the voices other people have.

My first question is almost the reverse of what Senator McDowell asked. He queried which of the seven provisions might be the least offensive. Which of the seven presents the greatest concern or risk in terms of arbitrary detention and so on? There was reference to the burden that Second and Third World countries carry in the context of asylum, and that is a fair point that should be recognised. From an Irish point of view, however, and the decisions that are made here, it is important for the resources that are available to be prioritised for those who are most in need and who are genuinely seeking protection. In the case of people who are travelling under that guise of seeking protection, it might, in some cases, be more appropriate to use the work visa system to ensure we will protect the resources for those who really are in need of protection.

A reasonable point was made about the 12-week period and it is worthy of consideration. We have had the other extreme in Ireland for a long time, whereby people have spent years and years without a decision, living in limbo and uncertainty. That is not good for either the system or the individual to have that level of uncertainty. If 12 weeks, in our guests' estimation, is not adequate, what is a reasonable timeframe? I know it is complex because there are the issues relating to trauma and so on that have been flagged.

It is undoubtedly the case that there are questions relating to human rights in a number of these provisions, which need to be recognised and taken into consideration. I note Mr. Henderson's surprise at the fact the seven proposals will be voted on as one. I am not asking for a comment on that from our guests but I think it is a flaw of the approach being taken by the Oireachtas. While they are part of a package, they are seven relatively different proposals that will have very different impacts. Some of them are interconnected, such as the AMMR and the Eurodac proposals, which would be difficult to divorce from each other, but a lot of the others are quite different propositions and people can have different views on them. It is similar to how we recently had two referendums, and while many people voted No-No and many voted Yes-Yes, many other people voted Yes-No or No-Yes. People are capable of distinguishing between propositions. I think it was an error of the Minister to adopt that all-or-nothing approach.

Mr. Enda O'Neill

On the risk of detention, the procedures regulation, which mandates the border procedure in certain circumstances, does not contain specific provisions on detention itself. That is contained generally in the reception conditions directive, which is another example of how the proposals are interconnected. The risk is that the conditions would amount to de facto detention, because people would have to stay at a particular location. It remains to be seen how that would be applied in practice, both in Ireland and in Europe more generally. Thankfully, in Ireland, we do not have a practice of widespread detention as it stands, and the Minister has given a commitment that this would not change significantly.

In terms of a practical change in the Irish system, one that could be relatively significant is these very accelerated procedures. For the first time, someone would be required to stay in a particular location, even if they are not detained. People with no other options will usually choose to stay in IPAS accommodation but they are not mandated to stay there and if they have other options, they can go there.

As mentioned, access to legal assistance in that accelerated procedure would be important. As I touched on in my opening statement, as there are categories of vulnerable persons or people who are inappropriate to send through such an accelerated procedure, it really is about how that is applied in practice and what the safeguards are around that procedure.

I might just add one small point. The number of places mandates for Ireland for that border procedure is relatively small. It could be 5% of the number of applications received in a year. It is not going to be a wholesale change and to address the previous question from Senator McDowell, someone who applies in the country or the border could equally be referred to the border procedure.

Senator Robbie Gallagher

I thank the witnesses for their attendance. In the limited time available to us for this procedure, we are trying to get a handle on what this is all about and it is extremely difficult. As there are 13,000 pages of legislation relating to this, we are limited in what we can do and ultimately, unfortunately we are limited in how we can influence those who make these decisions. Mr. O'Neill or Mr. Leonard might respond to those who would say that as a country, we would potentially lose control on the numbers that come into the State. How would they respond to that? The EU is trying to get all states to sign up to this. Is that an admission on our part, as a member state of the EU, that effectively, the system we have currently is not working?

If I could turn to my colleagues sitting straight ahead of me and while I would not dare speak for everyone in this room, what we are trying to reach here is, as a country, to get a system that is both fair and firm. They are the two words that are currently bandied about. There are those who legitimately have concerns in relation to the term "secondary movements", whereby some percentage - from 50% to as high as 70% - relate to people who arrived in another EU state and decided for whatever reason to come here. Why do the witnesses think that is? Why are those who flee a war-torn area and who arrive safely in an EU state then deciding to come here?

Ms Fiona Hurley

I thank the Senator. On the last point, what we hear is that as someone might have a family member in the State, he or she moves to Ireland to be closer to that family member who is already settled here and where that person knows he or she has support. As we do not create statistics on ourselves, what I am giving to the Senator is probably anecdotal rather than solid data but from what we have heard from the people who access our service, family seems to be a key driver.

Senator Robbie Gallagher

Does Ms Hurley have an idea as to how we compare with other EU states in that regard?

Ms Fiona Hurley

I am afraid not. I do not have the statistics to hand.

Senator Robbie Gallagher

Do any of the witnesses present have information on those statistics?

Mr. David Leonard

I do not have any statistics but the whole idea of the regulation that would replace the Dublin system is that if an applicant has a connection with another EU state before coming here, there is a more streamlined process for sending him or her back to that state for his or her application for international protection to be processed there. The idea of the new system - it is the asylum and migration management regulation that would replace the Dublin system - is to make it easier to send people back to the first state they have a connection with in order for their application to be processed there.

The Senator asked whether the fact that the EU wants everybody to sign up to this measure is an indication that the system is not working. It is an imperfect system at the moment and the EU considers that it can be improved with these measures. While that is true to some extent, there is a distinction between improving the law and then putting resources into the systems to make sure the laws are implemented in the way that serves the State and applicants in the best possible way. Just because we improve the law does not mean it will fix everything without putting in the resources to manage the system and implement everything fairly. That is a separate issue.

Senator Robbie Gallagher

Do any other witnesses want to make a comment?

Mr. Nick Henderson

This pact is extremely complex. Some regulations may have effect as soon next year, I think the qualifications directive will because it was agreed last year, but most of the regulations will not have effect until two years from when approval comes in May. There is a lot of expectation, we would suggest too much expectation, that this pact will solve the serious challenges that exist today. Instead, as Mr. Leonard says, another approach would be to invest and resource the existing structures and ensure our existing asylum legislation, nationally and at a European Union level, is implemented. Where members do not implement the law, there are sanctions. The European Commission has been extremely reluctant to uphold complaints against member states for breaches of European Union asylum law.

On the secondary movement point, there is much debate about and media attention on the United Kingdom at the moment. It cannot be overstated how dysfunctional the UK system is at present. I refer to its Illegal Migration Act and the limits that puts on the ability of somebody to seek asylum in that country.

An Cathaoirleach

I thank Mr. Henderson. I will move to the next member in a moment, because that is the -----

Ms Edel McGinley

Can I come in around the supports? We are talking about this in the abstract and it is about the operationalisation of all this and how it is going to be done now and into the future. It is the sense that we are eroding the rights of people who are coming here seeking safety. It is something that we, as a country, this justice committee and the Dáil, should all be concerned about. We should be looking to enhance people's rights and not erode them. As for the issue of resources and how somebody in the accelerated procedure accesses legal representation and advice, in our experience over the years it takes time for people to tell a story and for their situation to be known and understood. In these accelerated procedures, that is not going to happen. It is very worrying, and very concerning legislation.

An Cathaoirleach

I thank Ms McGinley.

Ms Maria Hennessy

I just want to add a point around the protection-sensitive implementation of the pact. There are provisions where, for example, if a person has special procedural needs that cannot be met during the border procedure he or she is then exempted. It is really important to look into the details as although most of these are regulations with direct effect, they do contain within them some flexibility.

For example, there is a move towards legal counselling now in the asylum procedures regulation at first instance, which looks more like legal information than legal assistance or representation. However, it does enable member states to maintain national law standards where they would have legal assistance at first instance. That protection-sensitive implementation is really important. One practical point in terms of the timeframe is that the qualification regulation would only be adopted in two years from when the pact is agreed. It would not be next year. The only one that would be implemented faster is the resettlement union framework when it is officially published.

An Cathaoirleach

I thank Ms Hennessy. Before I move on to the next member, Deputy Ó Ríordáin - I see Senator Martin has joined us and he may wish to put a question - I want to pick up on a point that Senator Gallagher raised. This is an EU pact; it is not a piece of Irish domestic legislation as we are all aware. The Senator asked what the experience has been in other EU countries in relation to this pact. Are they adopting it or debating it? I am going to invite our witnesses to comment on that if they are in a position to do so. I think someone said they are not aware of what is going on but it strikes me that we should have some awareness of what the experience is around the EU before we make any comment on this after these sessions. That would be helpful to our deliberations. Does anyone have any knowledge of this that they perhaps want to share? I call Ms Kenny.

Ms Maeve-Anne Kenny

I thank the Chair. I think the Minister may have mentioned last week when she appeared before the committee that Ireland and Denmark are the only two member states which are not automatically bound by the pact. Denmark's position is different to that of Ireland. It cannot opt in to the asylum measures of the pact; it does not have an option to do so. That was part of its negotiated deal when the Lisbon treaty came into effect. Ireland on the other hand does have an option to opt in to the asylum related measures, but not the Schengen ones. Denmark is obviously a Schengen member state as well so it will apply the border measures of this pact.

An Cathaoirleach

Ms Kenny might explain why is it that Ireland and Denmark are the only countries that are not automatically opted in?

Ms Maeve-Anne Kenny

Procedures were put in place for Ireland and the UK because of the common travel area. They actually pre-date the Lisbon treaty but were reinserted into the Lisbon treaty. In measures in the areas of freedom, justice and security, we are not automatically bound by them. That was in order to protect the common travel area or the common law system, where criminal law matters are concerned. That is the purpose of protocol 21, as it is known, to the treaties. We did make a declaration under declaration 56 to say that we would participate in freedom, justice and security measures to the maximum extent possible.

An Cathaoirleach

I thank Ms Kenny. I call Mr. Kapantais.

Mr. Kostas Kapantais

In terms of another country, I would like to speak about Greece. Yesterday, Mr. Kairidis, the minister for migration, signed a deal regarding the European pact. In terms of the Chair's question regarding secondary movement, in previous years on both the mainland and the islands there were no comprehensive safeguards against grave violations of human rights. With regard to the secondary movements, they continued to come to Ireland, Sweden, Germany and other countries because integration and general migration system in Greece was completely inferior in comparison to the other countries. From the minister, Mr. Kairidis's statements, we can see there is a lot of hope in Greece where the implementation of the European pact is concerned. That is why many people from the EUAA head for the islands and the mainland to implement it in collaboration with the ministry for migration. However, there are many reports from migrant and other organisations about pushback and, as Ms Hurley said, detentions. As we have seen in Greece, there is extensive detention of asylum seekers and unaccompanied minors. Detention can be from three to six months, without any proper safeguards. Ireland does not have the same system but if the pact is not implemented properly, taking into consideration the 12-week limit for deportations, it is going to have consequences in respect of safeguarding rights.

An Cathaoirleach

I thank Mr. Kapantais. That was very interesting. I call Mr. Bruton.

Mr. Neil Bruton

Undoubtedly this pact has been influenced by far-right parties across Europe. We are probably the only country in Europe without a far-right party, thankfully. Far-right parties across Europe have moved this pact to the right and we are probably in a unique position where we can analyse this pact without that pressure coming from far-right political parties. They are starting and growing but we do not have a major, mainstream political far-right party to date. We are in a position to analyse this in a fairer and more empathic way in terms of people coming here.

An Cathaoirleach

I thank Mr. Bruton. I am going to go to Deputy Ó Ríordáin and then to Senator Martin.

Deputy Aodhán Ó Ríordáin

I thank the Cathaoirleach. I am sorry I had to miss many of the presentations, but I had to be in two places at once. There was an education debate in the Dáil Chamber. On the last point about far-right parties, many of the voices in the Oireachtas that I am hardwired to immediately disagree with have been very critical of this. That is why people like myself have been willing to give this pact a second look. The history of this whole area has been very problematic in Irish politics. We have had difficulty within the Department of Justice for a long time and I have been critical of this myself, having spent 18 months as a Minister of State. The direct provision system allowed people to languish in the system for ten years, with children growing up in the system and becoming institutionalised. There was a reluctance to allow people to work, which is a basic provision of dignity. That led on to the McMahon report in 2015 and there was compromise by many NGOs in the sector with the Department. We felt it was not fully implemented, and it certainly was not enthusiastically implemented by the Department. There was this common phrase "pull factor", which the Department of Justice always used to use at meetings, meaning that the nicer one is and the more humane one is, the more people will come here.

My question is around those who are critical of this pact and who ask Oireachtas Members not to adopt it. Is it the witnesses' position - they may have outlined it in which case I apologise because I was not in the room - that any migration pact would be a bad idea? Could there a better migration pact? Is this pact being influenced by parties on the far-right? Is it their contention that what we have right now, problematic as it is from an Irish perspective, should be done better?

An Cathaoirleach

Is that being asked of anyone in particular?

Senator Aodhán Ó Ríordáin

I would like to start with Mr. Henderson and go from there.

Mr. Nick Henderson

As we said in the statement, we are not opposed to harmonisation. We are not opposed to common rules. The common European asylum system has existed since 1999. As I said earlier, we look at this through the lens of our missions as a charity and charities supporting people seeking protection and we apply the standard of whether this improves, or at least safeguards and prevents regression of, people's rights. When we apply that test to each regulation - bearing in mind that there are more than 1,000 pages and it is a very complex piece of legislation - there is more bad here than good. The phrase "better the devil you know" comes to mind in that respect.

Ms Edel McGinley

The EU has introduced really good legislation for Ireland over the years and has pushed us forward on gender equality, worker rights and labour migration. It has pushed us forward in a number of areas and has been hugely beneficial to Ireland but we do not believe this particular pact, as it is, is beneficial. That is not to say we have not benefitted over the years but in its totality, because it is being taken in its totality, we do not believe this pact is a good approach for Ireland. As the Refugee Council would say, it is better to look at what we have here already, to implement it properly and to resource it, going back to the resource issue.

We need to resource these things properly and make the system work a little bit better. Adopting this is eroding the rights of people seeking safety on our shores.

Deputy Aodhán Ó Ríordáin

I am interested to hear what other people have to say. On the system we have, imperfect and problematic and all that it is, and with the history we have of a Department which often could be justifiably described as institutionally racist - that is my own view - we should try to improve it, rather than going into an EU-wide pact which undermines some of the basic rights that have been built up over generations. Is that, in some way, the witnesses' position?

Mr. Neil Bruton

Hypothetically, one would be delighted to sign up to a really progressive asylum and migration pact, but that is not what this is. In light of that, we would rather stay and improve the current system. If a really progressive asylum migration pact was put forward, we might have a different position on it.

Mr. Nick Henderson

It is asking a very significant gamble of organisations like ourselves to have trust in a very complex piece of legislation that has various red lights flashing within it, with the hope and expectation that it creates a better system than what currently exists. At the very least it is a significant gamble.

Ms Fiona Hurley

I would agree with the Irish Refugee Council. It is asking for a huge show of good faith to expect that the protections contained in the pact, where there are procedural difficulties and protections, will be adequately resourced to ensure that international protection applicants actually have access to a fair and efficient procedure and not just a really efficient procedure at the expense of any sort of procedural fairness.

Senator Aodhán Ó Ríordáin

I thank the Chair.

An Cathaoirleach

I thank Deputy Ó Ríordáin. We will now hear from Senator Martin.

Senator Vincent P. Martin

I thank the Chairperson and the witnesses for their contributions today and the vital work they do on the front line, with advocacy and representation for people who often have no voice.

An Cathaoirleach

I draw to the members' attention to the fact a vote has been called in the Seanad. If any members need to leave, they can resume when they return.

Senator Vincent P. Martin

I have been called for a vote. I thank the Chairperson.

An Cathaoirleach

We move to the next member, who is a visitor. Senator Martin will have the floor when he comes back. I call Deputy Harkin.

Deputy Marian Harkin

I thank the Chair and the witnesses for coming today. I missed some of their contributions, although I quickly scanned their documents earlier. Unfortunately, I was held up with local issues which were also about migration. It is in all of our inboxes and telephone calls these days.

To come back to what we are discussing here today, I had a look at the votes in the European Parliament. Some of those votes were very close and some were nearly defeated. Having spent 15 years in the European Parliament, I am aware that votes can sometimes be defeated by those on what we might call the right or the left - I will not talk about the hard left, right or otherwise. Together they can sometimes defeat votes. It nearly happened with some of these votes. It is widely believed that if we did not have something in place before the European elections, the Commission and others would be very concerned about what the outcome of the elections might be.

I have significant reservations about this pact from Ireland's perspective. The witnesses made very strong statements today that they oppose every aspect of it. There is no part of the pact that is more positive than negative and that leads me to believe that the witnesses think Ireland should remain as it is and have its own migration policy. That was already partly interrogated earlier. We face a binary choice; we cannot opt for bits of this or that. As politicians, we face a binary choice and so do our witnesses, although I am not telling them their business.

Do the witnesses really believe the regression of people's rights within the pact is such that they think we would be better under current circumstances than working with our EU partners? As I said, I have significant concerns but sometimes you have to look at the bigger picture and look at outcomes and what the outcomes of decisions might be. That is my first question.

It looks as if Ireland might have upwards of 20,000 asylum seekers this year if numbers continue as they have in the first three months of this year. Have any of the witnesses' groups done any analysis on the number of migration officials, legal experts, legal counselling and the kind of resources we will need to manage that?

We asked the Minister about resources in the context of the solidarity mechanism and whether any analysis had been done. We could not get a satisfactory answer. When people speak to me, they ask about cost. They say there is a budget coming up and they ask how much of the budget needs to be diverted to manage the circumstances we find ourselves in. The first was a comment, which nobody has to respond to, and the second was my question.

Deputy Aodhán Ó Ríordáin took the Chair.

Mr. Nick Henderson

On the first question, I do not know whether anybody knows whether this will work or not. It is two years away and a very complex piece of legislation. Much can change in that time. We are a member of the European Council on Refugees and Exiles, which is the umbrella body for refugee organisations in Europe. One of its main points is that we do not know whether this will work as a piece of legislation. There is great expectation on it. It seems there is a relentless intent at a European Union level to reform and reform, as opposed to implement what we have. The European Commission is very reluctant to intervene when member states do not implement what they are supposed to. We do not have an expectation that they would do so in this next round. I would moderate the lure that this would get us out of the existing challenges we face.

As to the resourcing, the chairperson delegate of the Legal Aid Board appeared before the committee earlier and one of our critical calls in every budget is to ensure adequate resourcing of the Legal Aid Board.

Mr. Enda O'Neill

On the question of resources, it would be helpful to get more analysis on it in terms of on the head count needed per thousand applications. I cannot give the Deputy an analysis but it would be helpful to get a perspective on that from the Department. One thing I would say is that I think there is probably scope for greater efficiencies within the system. Under the pact, for example, a return decision is to issue at the same time as a negative decision on international protection. In Ireland at the moment, if a decision is issued by the IPO and someone is refused, he or she can appeal it to the tribunal. If the tribunal issues a negative decision, he or she can go back to get a permission to remain review by an official. A more streamlined and efficient system could be envisaged as well. It does not always have to be about the numbers being multiplied.

Deputy Marian Harkin

To clarify, is Mr. O'Neill referring to Ireland at the moment, or under the pact?

Mr. Enda O'Neill

That is how it works in Ireland at the moment. Under the pact, a permission to remain-type decision would normally issue at the same time as the international protection decision.

Deputy Marian Harkin

That issue was raised here the last day. If we have judicial reviews, that the timeframes that are spoken about in the pact simply could not apply here because no Government can put a timeframe on how long it takes for a judicial review.

An Cathaoirleach Gníomhach (Deputy Aodhán Ó Ríordáin)

I am conscious of time. Does somebody else wish to come in?

Ms Edel McGinley

I want to pick up on Mr. Henderson's comment. This is a political pact. It is born out of the political crisis of 2015 in responding to people fleeing war and claiming safety on the territory of the EU. This rolls on and on. Politicians at European level want to be seen to be doing something and this an iteration of that. It tries to harmonise things on an unprecedented scale. The pact is very political. It is less about people and their rights and more about how the member states respond to this. It does not have people at its heart or its core and that is the fundamental problem with this.

Senator Sharon Keogan

It is a bad deal.

Ms Fiona Hurley

I have a quick point on the resourcing. Someone has already spoken about legal aid and the cost of counselling and additional resources needed for that, but there are additional resources needed for things like unaccompanied minors who need to have temporary representatives appointed and potentially longer-term representatives appointed. There is also a need for medical professionals or other professionals who can assess special procedural or reception needs. At the moment we are falling down in regard to both of those things. There are additional resources outside things that might immediately come to mind, like additional people in the IPO to deal with applications, and in legal aid there are also additional-----

Deputy Marian Harkin

Has anybody put a figure on those additional resources?

Ms Fiona Hurley

There are no figures. It is just important to note they are also additional costs.

Deputy Marian Harkin

Okay.

An Cathaoirleach Gníomhach (Deputy Aodhán Ó Ríordáin)

I am conscious of time. Deputy Gannon is next.

Deputy Gary Gannon

Gabhaim buíochas leis an Cathaoirleach Gníomhach. Like him, I have had to master the art of bilocation today, so I apologise in advance if any of these questions have already been asked.

Last week we were assured border procedures were absolutely not detention centres. Will the witnesses speak to that if they can? I am very fearful of the border procedures to be set up under this pact near airports and other places people coming here might arrive. We are told they are simply not detention centres. The idea of any form of detention centre fills me with dread.

A quagmire is built into this political pact where applicants under the border procedure are not authorised to enter the territory of a member state, meaning there will be a legal fiction whereby some international applicants who are in the country are not deemed to be in the territory. Will the witnesses speak to me about the dangers of a system like that, where people are essentially not just stateless, but unrecognised within the law of the territory where they physically exist? I would like to get the benefit of their expertise on the dangers that might present for both adults and children. Some 160 human rights organisations, some of which are represented here, have come out against this pact, yet when that point was raised with the Minister last week she told us that in the eight years over which this has progressed through the European Parliament many of the concerns have been addressed. It is clear they have not been addressed. The witnesses may have done so already, but maybe they can take the specific ones they believe have not been addressed.

We are all working in very difficult circumstances at the moment. Will the witnesses speak to how their work and the representation they do for people is impacted when incendiary language or figures that are not based on data or evidence are put into the public domain?

Deputy James Lawless resumed the Chair.

Mr. Enda O'Neill

I will mention a few of the provisions around detention. I think it was before the Deputy arrived that I mentioned the border procedures do not have provisions on detention itself. The usual conditions around detention that are set out in the reception conditions directive would still be the rules that apply. We can say that in Ireland there are currently in the law a number of provisions around detention that are not usually used, so much will come down to implementation of the decisions of the State in terms of how it intends to implement it. There is a danger that the way the border procedures are established could amount to de facto detention if the conditions are very restrictive.

There are also a number of provisions in the pact that provide some safeguards. Members states are obliged to set up a national human rights monitoring mechanism that looks at the screening or border procedures to ensure human rights are complied with. There is a provision that cases too complex to be considered in a border procedure are directed to the regular procedure. Equally, for vulnerable applicants like people with special needs, if they cannot be provided with those supports in the accelerated procedure then they must be diverted to the regular procedure as well. Those are some of the safeguards in the pact, but I will pass over to some of the other witnesses to speak to their concerns.

Ms Fiona Hurley

We have a particular concern, and share Mr. O'Neill's concerns, about the facilities at the borders. If you are required to reside in one place and you are not allowed to leave it or enter the territory of the member state, that is de facto detention. We may not call it detention for the purposes of these regulations but that is, in effect, what it will be. We are really concerned about how people residing in those facilities will engage with services in the wider community. That could be somebody seeking help with medical issues that are not caught initially but not feeling safe saying it to someone at a facility. We often find people are reluctant to disclose details about themselves to people they perceive as being agents of the state. They are much more comfortable doing that with an NGO or an external service provider. That could be a health issue, a domestic, sexual or gender-based violence issue or disclosing they are a victim of torture. These are all things we are quite concerned about in the context of people's ability to access services outside those facilities.

Ms Edel McGinley

I will comment on the impact on the work. This morning we heard that 100 gardaí will be redeployed to border control. It is unclear what that is. We are very concerned it means profiling along the Border and that there is going to be an increase in ethnic profiling in the State. When that happens it is very detrimental. It is very distressing for people who witness it and those who experience it. We do not require all Irish people to carry their passports, so how are we going to identify people on buses and trains crossing the Border? There is a real risk in relation to ethnic profiling and those comments this morning relating to it. It is also linked to the pact, in that this could be extended to in-country. How do you determine whether a person is irregularly in the State? We are concerned about the comments this morning, as well as the pact going forward.

An Cathaoirleach

Ms McGinley might clarify which comments this morning she is referring to.

Ms Edel McGinley

The Minister for Justice indicated there would be 100 gardaí freed up from registration.

An Cathaoirleach

Grand.

Deputy Gary Gannon

It is not grand that we have a situation happening at the Border where, devoid of any legislation, we have buses being stopped and people being profiled based on the colour of their skin and asked to show a passport. I am unsure, and perhaps the committee can inform me, under which legislation that currently happens and under which legislation the 100 gardaí headed to the Border presently will be able to ask people to show their passports.

An Cathaoirleach

Deputy, I am sure you are aware the committee does not answer questions.

Deputy Gary Gannon

Sure.

An Cathaoirleach

The committee facilitates debate and hearings with witnesses and engagement. You are very welcome as a visitor to our committee and thank you for your comments. We are going to move on to the next member-----

Deputy Gary Gannon

There are still questions outstanding.

An Cathaoirleach

You are actually out of time, but I will permit the witnesses to respond if they wish to do so. I do not know why you are directing questions towards the Chair or the committee, because we do not-----

Deputy Gary Gannon

Apologies, Chairman. I am not a member of this committee; I am a visitor-----

An Cathaoirleach

That is how all committees work in my experience, but in any event, Mr. Bruton wishes to respond.

Mr. Neil Bruton

Deputy Gannon was asking about the 160 organisations and whether their concerns have been allayed. Based on all our representations, they clearly have not been allayed. Most of us here are deeply concerned about the screening, the arbitrary grouping of people into sped-up procedures and their not having adequate time or the ability to assert their rights in those procedures. Those concerns have not been allayed.

An Cathaoirleach

I will come back to Mr. O'Leary in a second. I will go to Ms Hennessy first because she has had her hand up for a minute.

Ms Maria Hennessy

Coming back to the question around the fiction of non-legal entry in those prophecies, the UNHCR is very much of the view that international human rights and EU human rights law will apply at that stage. We are emphasising that the Commission will also emphasise that in its own implementation plans and in national implementation plans, because international legal obligations will still apply and, legally, that will be examined by courts as well.

An Cathaoirleach

Mr. O'Leary wanted to come in.

Mr. Alan O'Leary

On the legal fiction, Ms Hurley mentioned access to services. That is doubly a concern for children within families who are not exempt from de facto detention. I do not know whether children, for example, would have access to mainstream schools.

An Cathaoirleach

I thank Mr. O'Leary. Senator Martin was in the hot seat before he had to go to a vote and I said I would come back to him as soon as he returned. Now the Senator is back with us. The Senator has six minutes but I will reset the clock for him because he had to run out at the start.

Senator Vincent P. Martin

Apologies, a vote was called in the Seanad. I thank the Cathaoirleach for facilitating the Senators. The expert practitioner, Mr. David Leonard, in his contribution mentioned the procedural improvements - the proposed introduction of video recording and translation. They may well have a positive net effect on the number of judicial reviews, for instance. They would certainly, I believe, help transparency, accountability and a better understanding of the process. I would like to get our guests' views. Are those proposed improvements to be welcomed?

I would try to get some underlying agreement. I do not want to pursue anything, but would we all, or would most of us, accept the reality of burden-sharing as a concept once it is fair and proportionate? I would like to get the guests' views as advocates often working heroically on the front line. Do they accept that Europe is stronger together and that this is not one country's problem? We saw a great example in the past couple of days as a result of Brexit. I would not like to see 27 other countries on different pages. What of a joined-up approach?

They are general questions. I would like to try to build a consensus because this is one of the biggest challenges of our time. Consensus was key for the Good Friday Agreement. Consensus in the Republic of Ireland was vitally important in how we dealt with Brexit. It was not turned into a party political issue, which can cause division. We have to lead as politicians. We cannot merely wash our hands of it. If there is a divisive moment later down the road, we have to lead from the front as public representatives. I would like to hear the guests' views on those questions. Perhaps, if I may, I will ask Mr. Leonard to elaborate on those proposed improvements. Mr. Leonard stated they should have a positive impact.

Mr. David Leonard

I pointed out a number of small procedural improvements that are significant. There will be video or audio recording of interviews. That is a major procedural improvement. It is something the High Court previously determined years ago was not a minimum standard required by constitutional standards of fair procedures here.

Senator Vincent P. Martin

Can I interrupt Mr. Leonard? Am I correct in saying that at present there is only a memo taken? There is no stenographer. There is no transcript.

Mr. David Leonard

No. At present, the person who interviews the applicant just writes a note of the questions that are asked and the answers given but it is not word-for-word or everything that is said. In effect, it is a summary. There is scope for disputes to arise, particularly where one only has a written summary in English where an applicant may have given his or her evidence and answers through an interpreter. There is no way at present to check whether the interpretation was accurate but there would be with the recording. It is something I thought I would point out because we hear a lot about the risks of procedural standards being lowered through these measures but there are some concrete improvements.

Senator Vincent P. Martin

I thank Mr. Leonard.

Mr. Nick Henderson

On the point around interviews, currently, if one of my colleagues would attend the international protection office which they have the right to do as the person's legal representative, they cannot make a note, using a laptop, of that interview. We have asked that repeatedly. It was previously allowed but it is not currently allowed. A person has to make the record by hand.

Senator Vincent P. Martin

It seems a bit draconian.

Mr. Nick Henderson

It seems draconian. In all honesty, it should not take a pact of this nature to achieve something that is pretty basic. It may sound trite but something so basic should not necessarily be a cause for celebration.

As to the idea that we are better together, I can understand that and we have spoken about that. I suppose Ireland would remain within some sort of orbit of the European Union asylum law, if not within that inner orbit. We are looking at this through the lens of our missions as charities supporting refugees seeking protection and when we do the positive and negative, there is more that we are concerned about in these regulations than we are welcoming.

Senator Vincent P. Martin

What of the concept of burden-sharing?

Mr. Nick Henderson

Ireland takes a small proportion of the European Union's total number of refugees and the European Union takes a relatively small proportion of the world's refugees. The regulation that attempts to deal with the burden-sharing within Europe has, in effect, been watered down in that there is now, as we have said, the get-out that allows a member state to pay.

Senator Vincent P. Martin

Financial.

Mr. Nick Henderson

Exactly. Not as a part of the pact, but Ireland took that in terms of the one-off burden-sharing agreement last June, if I recall correctly.

Senator Vincent P. Martin

I think I am out of time. If anyone else wants to respond, I am finished.

An Cathaoirleach

I thank the Senator. Ms Hurley can come in, if she wants.

Ms Fiona Hurley

In relation to some of the resettlement aspects around that, meaning the burden-sharing, and we are talking about resettlement as well, there has been a decrease in the number of EU member states agreeing to hold resettlement quotas. It is down to 14 from 17. The numbers of places committed has also fallen by 50% this December. We would be stronger together but there is not that consensus towards burden-sharing or providing those resettlement spaces across EU member states.

An Cathaoirleach

I thank Ms Hurley. We have heard from all the committee members and we had started with the visitors. Senator Martin was excused because he had a vote and he came back in again. I call Senator Keogan.

Senator Sharon Keogan

I thank our guests for their presentations here this afternoon. In relation to the Eurodac, last week the Department officials spoke about the Eurodac system as if we would not continue to be part of the system if we did not sign up to this pact. This is misinformation. If we reject the migration pact, we will continue to operate within this system. We already operate within this system. I wonder why that is being stated at this time. Is it some sort of shock statement to the public that if we do not have access to this Eurodac system, we will not know who is coming onto our shores when we all know that everybody who arrives on our shores at present, if they present themselves to the IPAS office, but only then, are fingerprinted, their ID is gathered and their photo is taken? We have access to the Eurodac system and the Europol system within our current legislation. I just want to find out about that Eurodac system at this moment in time.

An Cathaoirleach

Ms Kenny has offered to respond to that question.

Ms Maeve-Anne Kenny

The Department has not made any attempt to misrepresent the situation. The new Eurodac regulation will introduce a new Eurodac system. We would be required to opt into that regulation in order to access the system. It is a case that we can fingerprint individuals when they arrive in the State, but Eurodac allows us to match those fingerprints to any on its system, which will tell us than an individual either has or has not been in another member state before. The Minister has-----

Senator Sharon Keogan

Is a system like that-----

An Cathaoirleach

My apologies, Senator, but one voice at a time, please.

Ms Maeve-Anne Kenny

To make it abundantly clear, the system we have now will not operate after the Act is implemented. It will be a new system, and a system we would have to opt into. I just want to make that very clear.

At the moment, Eurodac takes fingerprints and these are compared across the EU. The new Eurodac system will include biometric facial images and security information we can access, so it will enhance our ability to be able to identify who is moving into the State, where they have been before and whether there are any security concerns that we need to be aware of.

An Cathaoirleach

Are there any other comments on the operation of Eurodac from the witnesses? No.

Senator Sharon Keogan

The system we are currently operating at this moment whereby we have access to all of the data that Ms Kenny outlined will be null and void if we do not opt into this pact. Is that correct? Is that what Ms Kenny is saying?

An Cathaoirleach

Ms Kenny can respond if she wishes.

Ms Maeve-Anne Kenny

The Eurodac system we are currently operating under will no longer exist and we will be required to opt into the Eurodac regulation in order to access the new Eurodac system.

Senator Sharon Keogan

Does that also apply to Interpol?

Ms Maeve-Anne Kenny

No, Interpol is a completely separate matter.

Senator Sharon Keogan

On the detention centres that are proposed in the legislation, the Government, in a document it put out on 27 March, referred to providing reception and integration centres and accommodation centres that would be State-run and that would hold up to 13,000 people. It also stated that it had contingency accommodation, developed to national standards and run by commercial providers, for up to 11,000 people. It further stated that it had emergency accommodation, which commercial providers would also run, for up to 10,000 people. Do our witnesses have any concerns about that? Our numbers are obviously rising. Do they agree with this action on the part of the Minister, Deputy O'Gorman?

An Cathaoirleach

Is this question about action taken by the Minister in connection with the pact? Is that right?

Senator Sharon Keogan

This is obviously to do with the pact because it is exactly the kind of thing the centres-----

An Cathaoirleach

That is fine. I was just clarifying in order to keep things on track. Do we have any volunteers to take that question?

Mr. Nick Henderson

My understanding is that the plan referred to is the Department of integration's plan to overhaul accommodation for international protection applicants and is not necessarily part of the pact at all. There is a reception conditions directive within the pact. It is a directive; it is not a regulation. My understanding is that they are two different things.

As to whether we agree with what was proposed-----

Senator Sharon Keogan

These are different centres completely. The centres proposed in the pact will be additional detention centres.

An Cathaoirleach

Let us be clear now. What is the Senator referring to?

Senator Sharon Keogan

The Euro pact basically states that detention should be a last resort. These detention centres, I assume, are within the pact.

An Cathaoirleach

That is why I asked the question. The Senator referred to the Minister, Deputy O'Gorman.

Senator Sharon Keogan

The Minister put out a document on 27 March on-----

An Cathaoirleach

If the Senator will just let me speak-----

Senator Sharon Keogan

Yes.

An Cathaoirleach

-----I am sure he put multiple documents out. However, the Minister for Justice, Deputy McEntee, is sponsoring the pact. This committee does not have jurisdiction over what the Minister, Deputy O'Gorman, may or may not do. I am trying to zoom in on the elements of what we have under discussion today in order to keep us on the right side of the debate.

Senator Sharon Keogan

While I agree with an Cathaoirleach, there is one hand doing something and another hand doing something else.

An Cathaoirleach

There may well be.

Senator Sharon Keogan

It is all very relevant in the context of what is happening within this country at present.

An Cathaoirleach

That is as may be, but this is the Joint Committee on Justice. We consider issues relating to justice, legislation and proposals from the Minister for Justice and related matters. The Senator stated that she is not sure if it is in the pact or not. It is hard to answer a question about something in the abstract.

Senator Sharon Keogan

The detention centres are within the pact.

An Cathaoirleach

Yes, but the Senator said that she assumes that a proposal has been made.

Senator Sharon Keogan

It is with the Department of children and integration. A similar proposal has been made about these detention centres. They are also actually called that. They are referred to as "Reception and Integration Centres and Accommodation Centres, at or above national standards". They are also referred to as being State owned and capable of holding up to 13,000 people.

An Cathaoirleach

What document is the Senator quoting from?

Senator Sharon Keogan

This is from the new strategy that was put forward by the Minister, Deputy O'Gorman, on 27 March.

An Cathaoirleach

I take no view on that strategy; I am just saying that it is not something for the committee to deal with today. We do not have the power to examine the actions of the Minister, Deputy O'Gorman. We do justice; we do not do the matters that are proper to the Minister, Deputy O'Gorman-----

Senator Sharon Keogan

It is all linked.

An Cathaoirleach

The Senator is welcome to attend at another committee that may be considering that matter.

Senator Sharon Keogan

It is all linked.

An Cathaoirleach

Perhaps. In any event, the Senator is out of time. I will come back around again. As a matter of information, for any Senators in attendance, a vote has been called in the Seanad.

We will start the second round of questions now. Senator Ruane is up first but given that there is a vote, does she want me to come back to her?

Senator Lynn Ruane

No, I will go ahead now.

An Cathaoirleach

Okay. That is fine. We will then hear from Deputy Pringle and the other members. As per the first round, we will take our committee members first, and we will then take questions from visitors in the second round should anyone want to come in. I will hand over to Senator Ruane.

Senator Lynn Ruane

This question is for either Mr O'Neill or Ms Hennessy. It relates to the 1951 convention in the context of non-refoulement and the EU pact. The information provided by the witnesses does not go into how the pact interplays with previous conventions in the context of eroding some of the protections and core principles within those conventions. Will the witnesses comment on what assessment or analysis they have carried out on pact in the context of the watering down or dilution of the very core principles within the previous UN conventions?

I am not sure who might want to answer my second question. It relates to mass surveillance. We keep skipping past the use of technology, fingerprinting and facial recognition as if that is some sort of protection for the State when what is involved is a mass gathering of information and surveillance of vulnerable people. I do not think that it should be put forward as a necessarily positive thing to protect us in the context of what will happen to that data. For example, all children will be subject to fingerprinting and to their data being kept on a system before they are even old enough to make decisions about what countries they are brought to for refuge. They will be profiled at a young age. Do any of the witnesses want to comment on the impact on civil liberties and privacy and on the potential impact this will have on minors, particularly in the context of their future lives being mapped out at such a young age on the basis of mass surveillance?

An Cathaoirleach

I thank the Senator. Who wants to comment?

Mr. Enda O'Neill

I thank the Senator. The refugee convention is very much part of the pact and has always been part of EU law. There are references to it in the treaties. One of the things we have tried to emphasise is that there is a focus on externalisation and political discussions around shifting the responsibility away from developed wealthy European states towards states that have far fewer resources. One of the reasons we are saying we support the pact, if adopted in an appropriate way, is because it seeks to ensure that people will have access to a particular territory, that they will be able to lodge an application for asylum and that they will able to access a procedure and get a decision on-----

Senator Lynn Ruane

What about member states being able to apply to the Commission to have a crisis declared? There is an obvious opt-out in the context of particular laws. I am particularly interested in member states being able to declare a crisis and ignore what is in previous conventions. Is Mr. O'Neill worried about that?

Mr. Enda O'Neill

With all instruments, there are areas of concern. There are positive elements, which includes that one.

One of the concerns with that is timelines, delaying registration and things such as that. It is important that people can get a decision on their merits. The safe third country concept was mentioned. That is still optional. It is not mandatory on states and it still requires a connection to a country. If a person transits through another country, that would be sufficient to say that person’s case is inadmissible and the case would not be considered on its merits. The only caveat I would add to that is that there was political agreement that the question would be looked at again in 2025. It is something we will have to review in the future. In its current form in the pact, we are satisfied that at least the application of that concept is optional and it still requires someone to have a real link to that country - just passing over a border would not be sufficient.

An Cathaoirleach

I will move on to the next member unless-----

Senator Lynn Ruane

Could we briefly speak about surveillance please?

An Cathaoirleach

Yes. Does the Senator wish to come back in or would she like to hear Ms Hurley's views?

Senator Lynn Ruane

I would like to hear from Ms Hurley.

An Cathaoirleach

As I thought.

Ms Fiona Hurley

We are concerned it will create massive databases that contain a huge amount of information about individuals. The Senator mentioned children. Children over the age of six can have their data held and we understand that data will be held for over ten years. That means the data will follow children potentially up until the age of 16 if the data is collected at age six. It is massively concerning that this level of data can be shared among police forces in member states in the EU.

Deputy Thomas Pringle

Regarding DNA testing and the retention of DNA statistics of children that is included in this pact, last week the Minister was of the view that it is a good thing, it is good for children’s safety and so on. What do the witnesses think about that? If it is such a good thing, why is it not rolled out in respect of children all over the rest of the country?

I recently came through the airport and the gardaí were standing at the end of - I cannot remember what it is called - the elevator thing that you take from the plane into the terminal building. The gardaí were checking dates and passports at that point. After this, could a detention centre be set up in Dublin that would be in Ireland but not part of the member states? The witnesses might not know this, but is somebody not technically in Ireland if they are getting off the plane and have not actually landed into the terminal building yet? Could they then be moved to somewhere not in Ireland although in Ireland? Is that possible? Do the witness think it will happen and is it possible?

Ms Edel McGinley

Regarding refusal of leave to land, there is a big problem with that now in the State anyway. There is no oversight over it and people are not given the reasons. There is no legal representation in that process anyway, so it is fraught with difficulties as it is currently. The introduction of the pact is not particularly going to change that. It is problematic and we need better oversight of it as it is.

It is a disproportionate approach to fingerprint children and hold any data on children, and we are not in favour of it. Holding it in mass databases is problematic. We do not know how it will be used or how it could be weaponised into the future. Anything that impacts on people’s rights in this way is very worrying. That kind of mass surveillance element is a worrying part of the pact.

On the solidarity mechanism, Ireland has a big budget surplus, so we can pay and opt out of any solidarity. We do not have to accept people. We can pay and that money can go towards anything, such as externalisation or the processing of people off the territory of the European Union. We are not in control of where that money will go and that is problematic. It means that richer countries can just offload their solidarity to countries that perhaps do not have as much money. We need to stay true to our values as a country and as a nation, where people are respected and cared for and we promote safety. We fought hard for many years for human rights in this country. Over the years, we have been a country that has punched above its weight with regard to human rights and we want to continue that reputation. Right now we are at risk of not continuing that reputation in this pact and that is worrying. It should be worrying to all of us, not just NGOs or civil society - politicians should be worried about it too. We and the committee need to think about this seriously.

Senator Michael McDowell

I wish to return to the issue of whether the border procedures apply to somebody who has been in this State for some time. I would like clarity on that. I am looking at the briefing paper we got from the Library and Research Service. It states:

... on 20 December 2023 concerning the Pact, the core aim of the proposed Screening Regulation to "strengthen control of persons at external borders". It will apply to persons entering the EU territory without fulfilling the entry conditions, including: individuals who request international protection at an external border crossing point or in a transit zone; individuals who are brought ashore following a search and rescue operation at sea; individuals who are apprehended in connection with an unauthorised crossing of an external border by land, sea or air; and individuals who are apprehended within the territory of an EU Member State who eluded controls at the external borders at ... first instance.

I ask the Department of Justice whether somebody who has been in the State for some time is within the ambit of the external border procedures and the screening process that follows from that.

Ms Maeve-Anne Kenny

I thank the Senator for the question. The screening regulation is a Schengen measure and Ireland will not be opting into that, but it is the intention for us to replicate the provisions of the screening regulation insofar as possible. If a decision is taken to opt in, the screening regulation does apply to people who are found to be irregularly staying in the territory of the member state and a screening procedure can take place at that point.

Regarding the application of the border procedures, our interpretation is that an individual should be apprehended crossing a border point. If it is a case that they, for example, show up at the International Protection Office and we have not actually apprehended them crossing a border, the border procedures will not apply. This could be subject to change. For example, it is open to us to designate other locations in the territory as a port of entry. For example, if we identified that the effectiveness of the border procedure was not what it should be, we could designate other points in the State as ports of entry for the purposes of the border procedure.

Senator Michael McDowell

Will that be a matter of Irish law or EU law? Is this an additional thing we can do or are obliged to do?

Ms Maeve-Anne Kenny

It would be a matter of Irish law.

Senator Michael McDowell

It is an optional thing for legislation, is it?

Ms Maeve-Anne Kenny

There is legislative provision already in place for it.

Senator Michael McDowell

Regarding the legislation the Minister brought to Cabinet today and got authority to draft or proceed with, does that legislation deal with the Rwanda question? In other words, does it deal with a scenario were somebody comes through the process in Ireland who we eventually want to send back to the UK?

They can make the point that they will not go back because the Rwanda policy has been found by the ECHR to be in breach of the convention. Is that going to remain a serious issue, from our point of view, unless and until the UK Government abandons Rwanda?

Ms Maeve-Anne Kenny

The legislation that Cabinet gave approval to draft today will address some of the procedural safeguards that the High Court deemed to be missing from the legislation.

Senator Michael McDowell

Yes, I know the procedural ones but this Rwanda question-----

Ms Maeve-Anne Kenny

The High Court did not make any finding in terms of the safety or otherwise of the UK. The legislative changes are necessary to enable the designation of the UK as a safe third country. Once the legislation is enacted, it is the Department's intention to continue to operate returns to the UK under the agreement that was made in 2020 following the UK's exit from the EU.

Senator Michael McDowell

I accept that is the Department's intention. However, as I understand it, from both ECHR law and the court decisions until now by the Supreme Court in England, the use of Rwanda is considered unlawful under international law. I am asking a very simple question. I wonder is a lot of this academic, because people will actually be able to say to the Irish courts that what Ms Justice Phelan found as technical defects may have been remedied but they still have a fundamental objection to being sent back to the UK because of being exposed to the risk of being sent to Rwanda. Where are we on that?

Ms Maeve-Anne Kenny

I have two things to say on this point. The legislative fix is not simply to deal with the UK. The option is there for the Minister to designate other countries as safe third countries and that needs to be remedied.

Senator Michael McDowell

We were told that 80% of asylum seekers were coming from the UK. I am just wondering if we are talking about something that is going to come unstuck, because 80% of asylum seekers will be able to object to being sent back to the UK as long as the Rwanda law remains in place.

An Cathaoirleach

I think it is an interesting point, Senator, but Ms Kenny was about to elaborate further.

Ms Maeve-Anne Kenny

Yes, I was. I thank the Chair. We cannot predict what a future court will determine. Of course it is open to an applicant to make an argument such as the Senator has outlined. The UK policy has not been put into operation yet and there has been no ruling from the European Court on it, so that is relatively premature at this stage.

Senator Michael McDowell

I will leave it at that, Chair.

Mr. Neil Bruton

I want to make a quick comment in relation to the first point about extending the screening to people in-country. MRCI would have deep concerns around that and the ethnic profiling, apprehension, detention and denial of due process that currently exists for people who are found to be in-country who are undocumented or otherwise.

An Cathaoirleach

Are you making those remarks in the context of the Rwanda policy?

Mr. Neil Bruton

No, in the context of the Senator's previous question about whether the screening procedures could be extended to people in-country.

An Cathaoirleach

Multiple topics are being debated today and when people go to look at the transcripts and review the comments of the committee, I want to make sure that it is clear what every contribution was directed towards, in order to help illustrate the points being made.

Deputy Donnchadh Ó Laoghaire

I think the question Senator McDowell asks is a valid one. I think it is still important to appeal and it is still important to pass the legislation because we are still potentially dealing with the hypothetical. It is right to rectify the flaw that exists, because we could still be dealing with a situation where Rwanda does not happen or it is unclear how many people might end up there and who those people might be. There might be a change of Government and a whole load of different variables. It is important we rectify it and it has the greatest effect possible.

A number of concerns have been raised about human rights relating to detention. Some of the other stuff which has been raised relates to outside of the EU and the responsibilities that have been given to other countries. Is that specifically codified or is it implied or is it something we can just assume from bilateral agreements between the EU and Egypt, Turkey, Albania and so on? I know that Amnesty International and some of the organisations here have raised concerns about the human rights records in those countries and the relationship the EU has with them. Is that specifically codified anywhere in the migration pact or is an assumption being made - quite reasonably, probably - about the way the EU currently functions at its borders with non-EU countries?

Mr. Enda O'Neill

There are different ways in which the external dimension could be relevant to the pact. I am not sure if the Deputy has something specific in mind. Would it be around returning people to a country outside of the EU or these safe third country arrangements we talked about?

Deputy Donnchadh Ó Laoghaire

Partially, but I also understand that Albania has been given some responsibility.

Mr. Enda O'Neill

This initiative by Italy is under the safe third country concept. This is relatively new and is under the existing laws. It really goes back to the discussion we had earlier about externalisation. The UK is trying to do something with Rwanda. In Italy's case, it entered into an agreement with Albania which is a little bit different. It would involve disembarkation in Albania. I do not think it has yet taken effect or that people have been transferred there. There are probably questions around it to be answered regarding its compatibility with current EU law. Returning people to the UK is under the safe third country concept, under current EU law. It all has a similar pattern but it will depend on the individual's circumstances. In response to Senator Ruane's question earlier, I mentioned that under the current law and under the proposed pact, it would require a person to have a connection to that country, rather than just be transiting through. If an application is deemed inadmissible and the person is to be returned to this third country, a number of criteria have to be met. These include that the person would be able to access protection in that country and that they would have a meaningful connection with it. The specific example given with Italy is a novel proposition because the Italians say that Italian law will apply with Italian officials operating in that country. We need to learn more about this scheme and it will potentially be tested as well.

Deputy Donnchadh Ó Laoghaire

If I understand Mr. O'Neill correctly, it does not exist within the four corners of the pieces of legislation.

Mr. Enda O'Neill

There have been some suggestions that the pact is designed to facilitate this. I do not think that is correct. One thing that is relevant is this political agreement that the concept of "safe third country" will be reviewed in 2025. That was one of the ways which enabled them to get agreement on the pact. There may be further developments.

Ms Maria Hennessy

On the actual definition of "safe third country", the presumption of safety exists if the EU has concluded an agreement with a third country, but the connection criteria will still remain. I just wanted to emphasise that point.

Senator Lynn Ruane

I want to come in on the connection piece and tie it in to the mass data piece. Can the mass data piece be used to uphold the connection piece? There may be large families that have to flee from places and set up in different countries. If there is a mass database that identifies a person as having a family connection in the UK or France could that be used to add to the criteria, rather than a connection that is more grounded in the person themselves? We can start mapping families across countries so what exactly are the criteria for connection? Could one family member in a country be used as part of that argument for a safe third country?

Ms Maeve-Anne Kenny

At the moment, sufficient connection is applicable in Irish law in relation to the safe third country concept.

Normally, the types of criteria we see relate to the length of time somebody has spent in a country, whether they have any family members there and whether they were issued with any residence documentation. It would be not just one factor but would be looked at in the round. There is currently a test in that regard under legislation.

Senator Lynn Ruane

Not all the criteria, however, have to be met. It could be that the person has transited through somewhere and has a family member who has been identified only through fingerprinting, and those two factors combined could be enough.

Ms Maeve-Anne Kenny

To clarify, transit is not sufficient to establish the connection-----

Senator Lynn Ruane

Yes, but if that is matched with data that has been collected through fingerprinting to say that person has a family member in that country, that would also be seen as a connection. That could be used as enough to send somebody to a safe third country.

Ms Maeve-Anne Kenny

It is an academic question, to a large extent. It is done on a case-by-case basis, so it would depend on the circumstances, such as the familial connection and any other evidence that was put forward by the applicant. It is not straightforward in that way.

Senator Robbie Gallagher

I might talk about the current figure of 30,000 for EU countries to share, whereby every country will get a percentage, based on GDP and population, of that 30,000. There are some fears that, perhaps, that figure will ultimately grow. Is there a ceiling to it such that member states will have an option to discuss it and perhaps to opt out of it at some point within the agreement?

Mr. Enda O'Neill

The text of the instrument provides that it will be a minimum of 30,000 cases. As for whether there is a ceiling, a process is outlined in the law whereby the European Commission plays a prominent role in assessing the status of the member states each year, produces an annual report and makes recommendations. A process is outlined in the AMMR to indicate how that process will work, and a figure will be determined for the year.

Senator Robbie Gallagher

If, for example, further down the road, a state's GDP has collapsed and its population is such that it feels as though it cannot accommodate any more, what will be the procedure? If a state wants to opt out of an increase, will it have that flexibility within the agreement?

Mr. Enda O'Neill

No, but the GDP will be taken into account in the allocation. There are also other considerations. In Ireland's example, we would generally see a degree of secondary movement from other countries, and there are responsibility offsets. If the Irish Government were to say we already had 3,000 people who had arrived in a year from Greece, instead of us sending them back under the AMMR, we could allow them to stay and that would be offset against the responsibility mechanism.

Senator Robbie Gallagher

There is no opt-out, therefore, at any point down the road. We will be tied into it.

Mr. Enda O'Neill

Yes.

Senator Robbie Gallagher

Following on from Senator McDowell's comment about the UK and what might happen down the road in that regard, it looks as though all we can do is jump the fences as we meet them, and the first fence is bringing in legislation, which we all fully agree with. What happens thereafter is out of our control in many ways, and this could drag on. In the interim, people are crossing over the Border, and a media report today referred to 100 gardaí being redeployed to Northern Ireland. Where are these gardaí coming from? Which units are they coming from and will that leave a void in those units?

Ms Maeve-Anne Kenny

Unfortunately, I do not have that information on the redeployment of gardaí, but I can certainly check with colleagues in the Department and get a response for the Senator and the committee if necessary.

An Cathaoirleach

To be fair to the Department and Ms Kenny in particular, we are considering the pact, and while I appreciate there are breaking developments in Cabinet and in the ether that are relevant, Ms Kenny does not know all the details right now.

Senator Robbie Gallagher

I appreciate that. It is just that the UK is having its own difficulties with France, and I suspect it might use the fact it has us over a barrel in many ways in respect of this. This could open up negotiations between the UK and the EU that could ultimately affect what we are discussing.

An Cathaoirleach

Absolutely. I think it is very fair to raise it, but the witnesses may not have the answers to all our questions, as is always the case. It is a fast-moving situation.

Senator Robbie Gallagher

I appreciate that.

Mr. Neil Bruton

Just to say, the news article stated the gardaí will be taken from registrations, which is something over which we would have big concerns because that area is already extremely stretched. We would certainly have deep concerns over taking 100 staff from that function and putting them into the very costly, and what we would see as ineffective, task of trying to enforce deportations, and over the impact that will have on other people who are moving to the country, for a lot of different reasons, and their ability to register, work and study.

Ms Fiona Hurley

To add to Mr. Bruton's point, at the moment there is a legal obligation to register within 90 days with the Garda National Immigration Bureau. If you live outside the Dublin region, such as in Cork, it takes four and a half months to get an appointment, which would exceed that 90-day period, and I believe that in Limerick it is similar, at about four months. It is essential that gardaí who are involved in that registration process will not be redeployed elsewhere because we actually need additional resources at those registration desks, rather than having them taken away.

An Cathaoirleach

We will now move on to our visiting Members.

Deputy Gary Gannon

At present, although I would imagine this will become more relevant if the pact does come in towards 2026, what legal powers does the Garda have in terms of enforcement at the shared border between North and South? I am concerned about profiling and requests to produce passports. What are the legal powers at present and does the Department envision a scenario whereby legislation will be passed to give greater enforcement powers to the Garda at our shared border North and South?

Ms Maeve-Anne Kenny

First and foremost, as the Chair mentioned, we are here to talk about the pact and not about wider immigration law issues. I can certainly get some information for the Deputy on the current powers under the immigration Acts. I know there are powers relating to requesting individuals to produce documents, but I do not have the details on the exact provision and I do not want to mislead the committee in any way. In any event, we do not envisage that the pact will interfere with those pre-existing powers under immigration law that were there even prior to the introduction of the common European asylum system in some cases.

Ms Edel McGinley

The Garda does have powers to stop persons and ask them for identification, but that is linked to ethnic profiling. How does a garda know to stop somebody? Is it because they are different, because of how they present or what? That is the risk with the Border issue and the redeployment of staff. While they can stop and ask people, how can they identify that person? Is it because their skin is a different colour or because they look different? What identifier would cause them to do that? There are serious concerns in that regard and there is no oversight of why people are stopped and searched. There is nothing in legislation to say we have to document why we stop and search somebody. There is a lack of visibility and transparency in that process and we do need legislation in that area. I know it is outside the scope of this committee at the moment but it is a growing concern.

Deputy Gary Gannon

I will make a brief comment in the time I have left. Importantly, we have a shared border, which is different from any other country that joins the pact. The lacuna within those legalities has not been addressed satisfactorily, so I would like that information.

An Cathaoirleach

I call Senator Keogan.

Senator Sharon Keogan

Regarding the extra gardaí appointed today under Operation Sonnet-----

An Cathaoirleach

Just to advise members, a vote has been called in the Seanad if Senators wish to leave.

Senator Sharon Keogan

No, that is okay. One hundred extra gardaí were allocated to Operation Sonnet today. That operation had some success late last year and again this year when it returned to the UK people who had come through Northern Ireland. They were returned via ferry from Dublin Port. Twenty-five people were caught between 9 and 13 October. This February, 25 people were removed from the State as well via ferry to Holyhead or train to Belfast. Obviously, the extra gardaí are a welcome addition, but the fact that there are only 16 gardaí in the people trafficking unit is worrying. It needs to be strengthened.

On burden sharing, the UN has predicted that the figure for climate migration will reach 1.2 billion people by 2050, rising to 1.4 billion by 2060. Sharing in that burden would require a vast amount of money of this or any country.

I want a show of hands from the panel of witnesses: who wants to opt in and who wants to opt out of this agreement?

An Cathaoirleach

We will not have a show of hands. Thankfully, we do not reduce ourselves to such-----

Senator Sharon Keogan

Some of the witnesses are in favour of it and some are not. I would like to know who among our guests is in favour of Ireland opting in and who is in favour of Ireland opting out. It is a simple question.

An Cathaoirleach

That was clear from the opening statements. The witnesses can respond if they want, but I will not ask them for a show of hands. We will keep some dignity in the process.

Senator Sharon Keogan

Maybe we can ask the question of each witness. Would people be in favour of opting in or opting out of the EU migration pact?

Mr. Neil Bruton

We made it clear in our opening statement that we were not in favour of opting in.

Mr. Alan O'Leary

We also made it clear that we were not in favour of opting in. Even in what could be a positive burden-sharing agreement, there are still more negatives than positives.

Regarding the Senator’s point about 1.2 billion refugees, we mentioned in our opening statement that approximately 74% of migrations occurred outside the EU. That is likely to be the same for the 1.2 billion refugees. Ireland and the wider EU do not have the greatest burden in terms of bearing the world’s refugees.

Ms Fiona Hurley

We are not in favour of opting into the pact. To add to Mr. O’Leary’s point, the vast majority of refugees are accommodated in neighbouring countries and do not make it to the EU.

An Cathaoirleach

I did not catch that last part. Would Ms Hurley mind repeating it?

Ms Fiona Hurley

The vast majority of refugees are living in neighbouring countries and do not make it as far as the EU.

An Cathaoirleach

Does Ms Hurley mean neighbouring to the EU?

Ms Fiona Hurley

Neighbouring to their countries of nationality.

An Cathaoirleach

I thank Ms Hurley.

Senator Michael McDowell

On a point of order, I understand that we will be finishing at 7 p.m. and will say that we have considered the report.

An Cathaoirleach

Yes.

Senator Michael McDowell

There was discussion about us sending a letter in addition to that. Could that be deferred until the members of the committee can absorb what they have heard today? As I understand it, the letter is not official.

An Cathaoirleach

I will ask the Senators to bear with me. We will go into private session after the witnesses withdraw. Those members who are remaining can have a discussion.

Senator Michael McDowell

I am under pressure timewise.

An Cathaoirleach

Does the Senator need to vote in the Seanad?

Senator Michael McDowell

Yes.

An Cathaoirleach

Does the Senator wish to go and return? We can reconvene in 15 minutes if he wants.

Senator Michael McDowell

Yes. I am just trying to work out where we are going.

An Cathaoirleach

We will have that discussion about where we go next, and it is important that we do so, but that is a matter for us to consider as a committee rather than with the witnesses present. In any event, as it happens-----

Senator Michael McDowell

My problem is that many members of the committee are not here now and will not be here at 7 p.m.

An Cathaoirleach

That is their problem, not Senator McDowell’s.

Senator Sharon Keogan

It is the country’s problem.

An Cathaoirleach

Decisions are made by those who show up. That has always been the way.

Senator Michael McDowell

I know.

An Cathaoirleach

That is not to cast an aspersion on anyone who is not present, but it is the reality that we cannot convene repeatedly just to try to get maximum attendance.

Senator Michael McDowell

No. I-----

An Cathaoirleach

I know the Senator is not suggesting that, but-----

Senator Sharon Keogan

What is happening now? Is the Chair saying that, following this meeting, the committee will make a decision that will be referred to the Dáil?

An Cathaoirleach

Exactly. It is for the members to decide.

Senator Sharon Keogan

It will just be members.

An Cathaoirleach

Of course.

Senator Sharon Keogan

And that will happen today at 7 p.m.

An Cathaoirleach

No. Senator Keogan is welcome to attend our meetings, put questions to witnesses and engage, but she is not welcome to engage in the business of the committee.

Senator Sharon Keogan

I am well aware of that.

An Cathaoirleach

I am sure the Senator is on other committees and she enjoys full freedom there, but she is not a member of this committee. I am not sure how that works in terms of what committees she opted into or out of.

Senator Lynn Ruane

She has got through border patrol.

Senator Sharon Keogan

That is fine.

An Cathaoirleach

Maybe there are checks on the way in. I do not know.

Senator Michael McDowell

The Senator will need to be deported.

An Cathaoirleach

In any event, this committee will make a decision later on.

Senator Sharon Keogan

I will be sent to Rwanda.

An Cathaoirleach

The committee will have a discussion. As all members who offered have now spoken, there is a vote in the Seanad that the Senators need to attend.

Senator Lynn Ruane

May I add something so that it makes its way into the letter, which we probably have not-----

An Cathaoirleach

No, let us do that in private session.

Senator Lynn Ruane

I wish to put it on the record. Obviously, we do not want to be adding points later that are not on the record.

An Cathaoirleach

The Senator can make a point regardless of the letter.

Senator Lynn Ruane

No, I do not mean that. I want to do it so that I can refer back to it when we are doing that work,-----

An Cathaoirleach

The Senator can do it anyway. We are not going to be-----

Senator Lynn Ruane

-----even if it is not in public.

An Cathaoirleach

Let us not wind ourselves up in procedure. If the Senator wants to say something, she should say it.

Senator Lynn Ruane

Grand. Regarding biometrics, we may have missed an opportunity at this meeting to avail of more expertise to inform our own understanding. Biometrics includes DNA scanning. DNA is a physical attribute. There are behavioural attributes and physical attributes. Being in the pact does not necessarily mean everyone would engage in DNA scanning, but it is included as an option under the biometrics heading.

Ms Maeve-Anne Kenny

The Eurodac regulation does not refer to biometrics in the round. It refers to a biometric facial image. Regarding facial recognition, it might be useful for the committee to hear that, generally speaking, fingerprints are checked against the database. Facial images will not be checked unless fingerprints are of insufficient quality and the person cannot be identified based on them. It will not be routine to match facial images across the system.

Senator Lynn Ruane

So, we will not be using facial recognition technology, which is being introduced by our justice Ministry, to manage our Border. There will be other legislation on border patrols and policing that interacts with the issue of facial recognition and other biometrics. The Department could say that the Garda could share facial imaging data with the border patrol of another country, given that they have to interact.

An Cathaoirleach

This is a point the Senator wanted to put on the record before we made our report, so for her information, I believe Deputy Pringle raised similar concerns with the Minister last week, meaning this matter has already been debated. The Senator has raised it again. We are probably going a little beyond the realm of what we can usefully consider today.

Senator Lynn Ruane

Is the Department saying that the EU pact only refers to biometrics - obviously, I have a problem with facial recognition provisions – and lists those biometrics? It does not say “biometrics identification”. It lists which biometrics will be used.

Ms Maeve-Anne Kenny

That is my understanding, yes.

Senator Lynn Ruane

We might need to check that because the DNA piece ties into the family piece.

An Cathaoirleach

I do not know how we could check it. We have to operate on the basis of what is practical and possible. However, I note the Senator’s point.

All members who offered have now contributed at least once, with most contributing a couple of times, and the other members have departed. Not to put him on too grand a stage, but I will give Mr. Leonard the last word among the witnesses.

Mr. David Leonard

It is clear from the proposal for the amended Eurodac regulation that the only biometrics that would be in the database would be fingerprints and facial images. That is defined in the regulation. It will not cover DNA or anything like that.

An Cathaoirleach

I thank the witnesses, who have been very helpful. We covered a wide variety of topics and information. The witnesses are free to go. I thank them for their time. Non-members may also go. I ask the members to stay with us.

In regard to some housekeeping. We will have a private discussion on the nature of a letter that we may well send, subject to the decision of the meeting.

We have now completed our consideration of the motion, in accordance with Standing Orders, a message to that effect will be sent to both Houses. I propose we publish the opening statements on the committee’s website, as per normal procedures. Is that agreed? Agreed.