On June 6th the Minister for Justice, Mr O'Donoghue, introduced a number of amendments to the Illegal Immigrants (Trafficking) Bill, which is going through the Dail. These gave new powers to the Garda in relation to deportation and detention, and were due for discussion less than 24 hours after their publication.
The Labour Party and the Irish Refugee Council objected to the haste with which these amendments were being rushed through, ail, and to the fact that they were not voted on. The vote is expected to take place this week, and the debate on the rest of the Bill is expected to be completed, and the Bill passed by the Seanad, before the summer.
The Illegal Immigrants (Trafficking) Bill is a very different piece of legislation now from when it was first introduced. Then it had nine sections, all related to the issue in its title. Four new sections, unrelated to trafficking, have been introduced and these will have the effect of amending existing legislation on refugees and the rules of the superior courts.
The first major set of amendments sought to reduce to two weeks the time limit for asylum-seekers whose applications have failed to seek a judicial review of any aspect of the decision-making process. These amendments also sought to rule out any legal challenge except judicial review.
The amendments give rise to a number of concerns, according to lawyers working in the area. Senior counsel and former refugee authority member Mr Peter Finlay told the Oireachtas Committee on Justice, Equality and Women's Rights that he considered the reduction in time to be discriminatory, as the law allowed citizens up to six months in which to take judicial review proceedings. Such discrimination was repugnant to the Constitution, he said.
The deputy leader of the Labour Party, Mr Brendan Howlin, tabled a number of amendments to this section. According to his spokesman, the Labour Party's legal advice was that it was unconstitutional because if the 14 days had expired it was impossible for a person to defend themselves against a criminal charge - that of refusing to leave following the issuing of a deportation order.
Another amendment restricts the right of an asylum-seeker to appeal to the Supreme Court, except where a High Court judge thinks an important point of law is at stake. The Irish Refugee Council (IRC) is concerned that this may be unconstitutional, and points to Article 34.3.2 which states that the High Court has total jurisdiction on all matters.
The IRC has also stated that the restrictions on the right to judicial review runs counter to the European Convention on Human Rights, which is about to be incorporated into Irish law. However, the amendments relating to judicial review were voted through the Dail.
The amendments on detention and deportation, yet to be voted on, allow for the serving of a deportation order on asylum-seekers whose applications have failed, and for them and their families to be detained that same day, with no facility to prepare themselves or notify employers or schools. It is not clear where they would be detained, but at the moment the only places are garda stations and prisons.
According to the IRC, this would again severely limit the ability of the asylum-seeker to get legal representation should they wish to have a judicial review of the order.
Ms Sara MacNeice, legal officer of the IRC, said the council understood that the Garda had guidelines on deportation procedures, but these were not public. She said such guidelines had to be revised in Britain following the death of a woman while being forcibly deported, and should be open to public scrutiny here.
Mr Howlin's spokesman said the Labour Party's legal advice was that these amendments ran counter to the right to habeas corpus contained in the Constitution.
However, a spokesman for Mr O'Donoghue said the Minister had extensive consultations with the Attorney General on all aspects of the legislation, and was absolutely satisfied as to its legality.
If any aspect of it does face constitutional challenge, this could come from either the President referring it to the Supreme Court through the Council of State, or an individual asylum-seeker challenging it through the courts.