A named individual V A named Detective Garda Immigration Office, An Garda Siochana, Limerick (represented by the Office of the Chief State Solicitor)
Equal Status Acts 2000 to 2004 - Direct discrimination, section 3(1)(a) - race and marital status grounds, harassment - definition of service - jurisdiction of the Tribunal - Failure by complainant to attend hearing - no prima facie case
1.1 This dispute concerns a claim by a named individual that a named Detective Garda in the Immigration Office, An Garda Siochana, Henry Street, Limerick, discriminated against him and harassed him on the marital status and race grounds on 20 June 2002. The claim was referred to me as Director of Equality Investigations on 11 December 2002. I commenced the investigation on 21 September 2004 and a hearing was held on 24 November 2004.
2. Summary of the Complainant's written evidence:
2.1 A named individual, who is a Turkish citizen married to an Irish woman, claimed harassment on the race ground in that he was subjected to verbal abuse, derogatory and unfounded insinuations when he applied to the Immigration Office in Limerick to renew his permission to remain in Ireland, which had lapsed some five months previously. He also claimed discriminatory treatment on the race and marital status ground in that he was provided with a limited service when permission to remain in Ireland was renewed for one year rather than two. He also claimed that the Gardai further harassed him by trying to contact him after he made his initial complaint.
3. Summary of the Respondent's written evidence:
3.1 Statement by a named Detective Garda:
3.1.1 A named Detective Garda furnished a statement, in response to the notification form, that he applied standard procedures to the process of renewing the complainant's permission to stay and that this procedure was no different from any other person in similar circumstances. He also denied harassment or discrimination.
3.2 Further submission by the Respondent:
3.2.1 The Respondent's representative further submitted that immigration control within the State is outside the Tribunal's jurisdiction as it does not represent the provision of a service within the meaning of the Equal Status Acts. They cited Donovan v Donnellan1 in their support, which concluded that the controlling functions of the State (including the investigation and prosecution of crime) are not services within the meaning of the Equal Status Act. In the alternative they submitted that the complaint was frivolous or vexatious. For the avoidance of doubt, they also strongly denied the detailed allegations made by the complainant.
4 Outline of events:
4.1 A hearing of the case was arranged for Wednesday 24 November 2004 at the offices of the Equality Tribunal. Both parties were notified of the hearing by letter issued on 21 September 2004 and confirmation of the respondent's attendance was received on 1 November 2004. The Tribunal further wrote on 10 November to the complainant enclosing the respondent's further submission, emailed a reminder on 15 November and attempted to phone the complainant on 15th and 16th November. No confirmation was received from the complainant and no application for an adjournment of the hearing was lodged.
4.2 On the date of the hearing the respondent party with his legal representatives and witnesses attended at the Tribunal for the hearing of the case. The complainant did not attend and the office sought unsuccessfully to contact the complainant by mobile telephone to ascertain the reason for his non-attendance. The respondent's representatives confirmed that they were not aware of any reason for the complainant's non-attendance as he had current permission to remain in Ireland until June 2005. I am satisfied that the Tribunal made every effort to contact the complainant.
5. Conclusions of the Director:
5.1 From my consideration of the submissions in this case, two distinct complaints of discrimination were raised by the complainant: a) the allegations of discriminatory treatment on the ground of race regarding the way the complainant was treated by the respondent when he sought to renew his permission to stay in Ireland; and b) the allegation of discrimination on the ground of race and marital status regarding the substantive decision to renew the permission to stay for one year rather than for two.
5.2 In accordance with the Tribunal's settled practice, the onus is in the first instance on the complainant to establish a prima facie case of discrimination. In order to establish a prima facie case, a complainant needs to establish, to the satisfaction of the Tribunal, primary facts which are of sufficient significance to raise a presumption of discrimination. In the absence of the complainant, it is not possible for him to establish a prima facie case. The respondent thus had no case to answer.
5.3 I consider it may nevertheless be helpful to make some general comments on the jurisdiction of the Tribunal, which are necessarily obiter given the absence of the complainant at the hearing of this case.
1 Donovan v Donnellan, DEC-S2001-011
5.4 The definition of "services" in section 2 of the Equal Status Act 2000 clearly covers services provided by the State. However, not all functions carried out by the State amount to provision of services. I would refer to the Equality Officer's decision in Donovan v Donnellan concerning the possible liability of the State in proceedings under the Equal Status Act. That decision makes a clear distinction between: i) the exercise by the State of executive functions which relate to the exercise of the controlling functions of the State and which do not amount to the provision of a service to the public; and ii) the treatment of an individual by the State in relation to ancillary matters, which may amount to the provision of a service generally available to the public or a section of it.
5.5 Donovan v Donnellan held that the investigation and prosecution of crime was not a service provided by the State to a person accused and was accordingly outside the scope of the Equal Status Act. Conversely, I note the point made in that decision, and the similar conclusions of the UK Court of Appeal under the Race Relations Act in Farah v Metropolitan Police Commissioner  2 WLR 824, that Gardai actions such as the treatment of persons reporting a crime, asking for witnessing of passport application or giving directions to a person on the street can amount to services provided to the public, which are covered by the Equal Status Act.
5.6 I would refer to the statement made by the Minister for Justice, Equality and Law Reform during the Dail debates on the Equal Status Bill on 15 December 1999 to the effect that: "The service aspect of policing, immigration, defence and prisons will, however, come within the scope of the Bill. For example while a decision to grant a visa would not be covered by the Equal Status Bill, the interaction between officials and the visa applicant and collateral services and facilities, such as access to buildings and information, would come within the scope of the legislation." I am conscious of the High Court and Supreme Court caselaw in relation to the use of parliamentary debates as an aid to statutory interpretation. Given that this statement was made by the presenting Minister, and as I am fully aware of the legislative history of this particular Bill, I am satisfied that it accurately reflects the basis on which the Oireachtas enacted this particular provision. I consider therefore that I am entitled to take the Minister's statement into account in my deliberations.
5.7 My preliminary view is accordingly that, on the one hand, certain decisions made by the State on applications concerning immigration and the entry of nonnationals may well also be the exercise by the State of controlling functions which are not covered by the Equal Status Acts. On the other hand, by analogy, it appears that the treatment by the State or its officers (including gardai) of a person wishing to make an application in an immigration matter may involve provision of a service to the public and thus may come within the Equal Status Acts.
5.8 However, I wish to stress that this issue has not been decided, as no facts have been proved in the present case.
6.1 I find for the respondent, a named Detective Garda.
9 December 2004