JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Thursday, 19 Jun 2003

Vol. 1 No. 29

Immigration Bill 2002: Presentations.

Chairman

I welcome the delegation to the meeting, the purpose of which is to discuss the carriers' liability legislation, the Immigration Bill 2002 and the implications of a recent Supreme Court judgment on residency rights of non-national parents of Irish born children. On 13 May the joint committee met formally with the Irish section of Amnesty International, Comhlámh, the Irish Congress of Trades Unions, the Irish Council for Civil Liberties, the Irish Refugee Council and the Refugee Project to discuss these issues. At a meeting on 20 May 2003, the joint committee had an opportunity to hear the views of the Immigrant Council. This discussion was followed on 27 May by a meeting with Integrating Ireland. Following the meeting submissions were received from a number of groups. This will be the final meeting with representative groups prior to the select committee dealing with the Committee Stage of the Immigration Bill.

I welcome Ms Salome Mbugua from the African Women's Network. Perhaps Ms Mbugua will introduce herself and her colleague.

Ms Salome Mbugua

My name is Salome and I am accompanied by Judith Magajs.

Chairman

Thank you and you are very welcome. The Children's Rights Alliance is represented by Mr. Ray Dooley, Chief Executive Officer.

Ms Aine Ní Chonaill

I am PRO of the Immigration Control Platform and I am accompanied by our chairman, Mr. John Oakes.

Chairman

Thank you. The Tallaght Intercultural Committee is represented by Mr. Clement Esabamen.

Mr. Clement Esabamen

I am the equality officer of the Tallaght Partnership. The Tallaght Intercultural Action is one of our initiatives. Ms Muriel Okafar is also a representative.

Sr. Bríd Keenan

I am from the Vincentian Refugee Centre and I am accompanied by our settlement officer, Ms Adrienne Christie.

Chairman

I would remind members of the delegation that while members enjoy privilege, witnesses appearing before the committee do not. Anything that is said can be taken at face value. I now call on Ms Mbugua from the African Women's Network to make a brief presentation.

Ms Mbugua

On behalf of the African Women's Network, I would like to thank the joint committee for the invitation to make a submission on the carriers' liability and implications of the Supreme Court judgment on the rights of non-national parents of Irish born children.

I am speaking here today on behalf of African women living in Ireland. I am also concerned about women from many other countries. For the benefit of those of you who are unaware of the existence of the African Womens Network, I should say that we were formed in August 2001 with initial support from the Catherine McAuley Centre. We are a national network of, and representative body for, African women living in Ireland, irrespective of their ethnic or national backgrounds, religious traditions and socio-economic, legal or residency status.

Our position is guided by the following: the well-being of African women and the well-being of women from other continents that we do not represent; the well-being of children whose principal carers are their mothers. While we have been asked to comment on the implications of the Supreme Court judgment on non-national parents of Irish-born children, we contend that the judgment also has serious implications for the Irish-born children. We are also guided by the well-being of the larger family units of the mothers and children within which both mother and child have a bond and feel most secure despite all their vulnerabilities.

Our interest today is primarily concerned with the implications of the Supreme Court judgment. On the matter of carrier liability legislation, the vulnerabilities and level of danger that those entering Ireland and other European countries in search of safety encounter is evident from the large amounts of money often paid for passage. Many people have sold the little properties and belongings that they had in their home countries and took donations from friends and extended family in the hope of having a better life and providing for those left behind and for those seeking refuge in neighbouring African countries. In this regard, the legislation should clearly target the carrier who is profiting, as opposed to the vulnerable people being carried. We hold strongly the view that in the allocation of resources to enforce the legislation, priority has to be given to breaking carrier rings involved in the transportation of women for the European prostitution markets.

Regarding our submission on the implications of the Supreme Court judgment, we wish to highlight the need for an immediate and fair system of hearing cases and, where necessary, reopening cases of non-national parents of Irish-born children. AkiDwA feels that a general amnesty granting leave to stay to non-national parents of Irish-born children before the Supreme Court judgment would be the fairest way of dealing with all the complexities of each individual case. The reasons for this position will become more apparent, especially when we look at the implications for the Irish-born children. We feel that humanitarian consideration should be given in the cases of all children born after the judgment. We also feel that women who dropped their claims for asylum after giving birth did so on the basis of bad advice and need to be afforded the opportunity of having their claims reactivated

In light of our submission on the implications of the Supreme Court judgment, emphasis should be placed on the requirement that adjudications be made giving due regard to the application of social justice and humanitarian considerations rather than on the basis of negative racist stereotypes. On this point, AkiDwA contends that negative racist and sexist stereotypes of Africans, including African women, have developed around the issue of childbirth. There is a perception that the primary concern of African women when giving birth was to obtain leave to stay and to live off the welfare system. Nothing could be further from the truth. African women have no desire to be dependent on a welfare system. They do, however, want to be granted the opportunity to make a positive contribution to society, to earn a living, support themselves and their families in Ireland and their extended families - some in their home countries and others in safer locations. The women who gave birth when in Ireland were obviously of a child-bearing and sexually active age. Unlike Europe, where the average family comprises approximately two to three children, the standard African family has five to six.

AkiDwA is working to address the fact that not all African women entering Ireland knew how and where to access family planning while others found discussing such issues with strangers culturally inappropriate. The underlying issue that we wish to highlight is the need to ensure that those hearing the cases do not do so with negative baggage.

We wish to highlight the need for the rights of the child to be protected. Although AkiDwA represents the position of African women it believes that the group that will be most affected by the recent Supreme Court ruling comprises Irish-born children. In the current climate in which deportation orders are being issued against the parents of these children, we envisage three possible scenarios that could emerge. In each case it is likely that there will be a negative outcome for the child, unless he or she has good luck.

In the first scenario, the parents of the child are deported and take their child with them. The child, an Irish citizen, will not, in most instances, be able to receive dual citizenship. The right of the child to an identity in a new land would be denied. Likewise, the capacity of the State to afford the child protection to an acceptable degree will be limited. The parents of the child would have entered Ireland in a vulnerable position and would be returned home more vulnerable and to greater poverty and insecurity than that which they experienced when they arrived. The child will have to contend with a culture into which he or she has not been socialised and will have reduced life options. In the event of parental separation or divorce, a question arises over jurisdiction in deciding on the fate and well-being of the child - in most African traditions, priority is given to men to take their children if they so choose, implying that the mother will lose out again.

In the second and third scenarios, the parents are deported and choose to leave the child behind. While this may seem like neglect it will actually be quite a logical decision and will only be taken after the parents have painstakingly weighed up the options and considered what might be best for the security, protection and long-term future of the child. In the second scenario, the child will become a ward of State and will most likely be assigned to residential care, foster care or put up for adoption. Each option will have a developmental and psychological impact on the child and possibly his or her guardians.

In the third scenario, it is quite possible that parents facing deportation will use a variation of the extended African family and use an existing network of parents with leave to stay to care for the Irish-born children. In this scenario, which I believe is quite possible, there would be a disproportionate number of children to guardians. The decision to entrust a child to parents with leave to stay will most likely be made by and between men but will impact on women as primary carers. Given the disproportionate number of children to parents, the degree of care and attention needed by the children will be reduced.

In respect of the requirement that the fears, concerns and needs of women be catered for, AkiDwA believes that the needs of a child are best served with its mother in a safe and secure environment. AkiDwA has recently encountered women suffering from psychological trauma as they envisage the prospect of deportation and the dangerous and difficult circumstances to which they will return. There are specific forms of violence against which women are not protected in many African societies - for example, female genital mutilation and death sentences for alleged adultery. Moreover, domestic violence is also accepted as the norm in many African societies. These, however, are not covered by the terms of the Geneva Convention as interpreted when asylum cases are heard. Nonetheless, they do warrant consideration on humanitarian grounds. As I stated, most African societies do not give priority to the mother in the case of a dispute on child custody. We believe this is wrong and represents a further reason why the Irish State needs to protect both Irish-born children and their mothers by granting leave to stay. Overall, we feel that everyone's best interests would be served by creating an enabling environment for African women and that investment in such a society would result in positive returns for all.

AkiDwA believes that a general amnesty should be given to all parents of Irish-born children before the Supreme Court ruling. Failing this, these and all individual cases after the ruling should be examined immediately on the basis of the legal entitlements of Irish citizens, including Irish-born children, social justice and humanitarian considerations, protection of the rights of the child and with due consideration for the concerns of women. AkiDwA believes that an enabling society should be established whereby Africans and their Irish-born children can make a positive contribution to society rather than be left in a state of dependence.

Chairman

Perhaps Ms Mbugua's colleague can contribute during the question and answer session because our time is limited. I ask Mr. Ray Dooley, chief executive officer of the Children's Rights Alliance, to make his submission.

Mr. Ray Dooley

I thank the committee for affording me the opportunity to comment on the implications of the recent Supreme Court judgment concerning the residency rights of non-national parents of Irish citizen children. The Children's Rights Alliance, a coalition of 74 Irish NGOs concerned with the rights and needs of children in Ireland, has taken an active interest in this matter since the Government made clear its intention to change policy in the area of residency for non-national parents of Irish citizen children.

Our primary concern in this regard has been to make sure that the constitutional and human rights of the children of non-national parents are respected and protected. For more than a year, in correspondence with the former and current Ministers for Justice, Equality and Law Reform and through a succession of public statements, we have been urging that the rights of children be directly addressed and not treated as a mere footnote to the issue of asylum and residency policy. What will happen to the Irish citizen children of deported non-nationals? Will they be left behind or, despite their status as Irish citizens, effectively deported or exiled along with their parents? If they are left behind, who will care for them? What preparations have been made and what resources have been allocated by Government to provide for the care of these children?

During the High Court proceedings in the "O" and "L" cases, lawyers representing the Department of Justice, Equality and Law Reform said that it was the parents' duty to take their children with them. In the aftermath of the Supreme Court decision, the Minister for Justice, Equality and Law Reform has publicly stated that the Government will insist that deported non-nationals take their children with them even if those children are Irish citizens. If the children are taken to a foreign country, how long will they be required to remain in exile? How will their constitutional rights as Irish citizens be protected during their childhood in exile? How will consular officers ensure that the children will be able to realise their rights to a proper education, decent health care, protection from abuse and all of their other rights under the Irish Constitution, the European Convention on Human Rights and the UN Convention on the Rights of the Child?

What will happen to the children if they are forced to move to a country where even the limited benefits of consular assistance are unavailable to them? What will be done if the government of the foreign country to which the children are being transported refuses them entry or subsequently deports them on the grounds that they are non-nationals with no permanent right to residency? If the exiled Irish children find themselves in a country that routinely engages in serious breaches of human rights, how will they protect themselves? What will happen to the children if their parents are placed in prison following deportation?

Forced marriage, female genital mutilation and torture are common practices in a number of the countries to which Irish citizen children could find themselves exiled. What safeguards and protections will be put in place to ensure that Irish children forced to move to these countries do not fall victim to such abuses of their basic human rights? What if these exiled Irish children are forced to flee persecution? Where would they be allowed to go?

Many foreign countries provide free or subsidised public education and health services only to their own citizens. How will the transported Irish citizen children, as resident aliens in these countries, have their basic education and health rights vindicated? Ireland is a party to the UN Convention on the Rights of the Child. In ratifying the convention Ireland has accepted and assumed its own responsibility to make the best interests of the child a primary consideration in all of its actions and decisions affecting children. How does the Department of Justice, Equality and Law Reform propose to determine what would be in the best interests of the child? After making such a determination, what weight would the Department give to the child's best interests before making a decision to deport the child's parents and effectively deport the Irish citizen child?

The answers to these questions are critically important to thousands of Irish children who could find themselves separated from their parents or forced into effective exile. While the cases were before the courts the Government declined to answer these questions. A spokesperson for the Department of Justice, Equality and Law Reform said that these were hypothetical situations that had not arisen yet. Now that the Supreme Court has handed down its decision, these respective scenarios are no longer hypothetical for more than 11,000 Irish children. The Government must stop pretending that the rights of children can simply be ignored and must provide answers to these legitimate and practical questions.

The Government must reveal its plans for the children involved, address itself to the consequences of its actions, explain how the rights of the children will be protected and establish proper systems and procedures for ensuring that primary consideration will be given to the best interests of the children involved. Until that happens there should be a moratorium on the effective deportation of Irish citizen children.

At an administrative level, a system of procedures must be designed, developed and put into place to ensure that the rights of the children are adequately protected. Minimally, it must be a requirement that a child impact review be undertaken before any official action is taken that would bring about the effective deportation of an Irish citizen child. The child impact review must involve a thorough examination of the circumstances prevailing in the foreign country to which the child may be forced to go. This review would include a close look at the practices and policies that would bear upon the child's ability to vindicate his or her constitutional human rights in the country in question. Following the examination, written findings would be made. The findings would be assessed against standards that would need to be designed and developed to enable officials conducting the review to determine whether it would in fact be in the best interests of the child to be transported to the country in question.

Weightings and criteria would need to be developed to ensure that such assessments would be applied on a fair and consistent basis. Staff responsible for conducting these reviews must receive adequate training in children's rights and the requirements of relevant international and domestic law. Particular attention must be paid to section 3 of the Guardianship of Infants Act 1964 and to section 24 of the Child Care Act 1991, which provide that the first and paramount consideration be given to the welfare of the child, and to Ireland's obligations under the UN convention regarding the primary consideration to be given to the best interests of the child in matters that affect them.

Sufficient resources would need to be allocated to ensure that such reviews would be undertaken in a manner consistent with the genuine respect for the rights of the child and with full regard for the momentous nature of the decision being addressed. Unless the Government takes this approach to its responsibilities in this area several outcomes will occur. First, the State will proceed on a systematic basis to take actions in violation of the basic constitutional and human rights of Irish children. Second, the State will find itself facing litigation for years to come from those whose rights were abrogated. Third, test cases will be taken that will in all likelihood result in a deportation order being overturned by a higher court, as occurred in Canada when the Canadian Supreme Court determined in 1999, in Baker v. Canada, that insufficient weight had been given to the fundamentally important impact that a non-national parent’s deportation would have upon her children and upon their rights and welfare.

The recent Irish Supreme Court decision in the "O" and "L" cases may have permitted the State to deport non-national parents in two particular instances but it does not permit the State to absolve itself of its responsibility to promote and protect the rights of Irish children whose parents are subject to possible deportation. We ask the Chairman and members of the joint committee to consider these issues during their deliberations on this matter.

Ms Ní Chonaill

As the committee will have seen from the submission we submitted it, it is the very strong feeling of the Immigration Control Platform that the grave difficulties this country faced and faces, uniquely so in Europe, in relation to citizenship/residency have been only partly addressed by the Supreme Court ruling. Yes, residency has been addressed but automatic citizenship remains. I cannot stress strongly enough that this is unique in the EU and puts us in an extremely vulnerable position as regards regular migration. It will continue to act as a honey pot or magnet. I have said on several occasions that for somebody from the developing world to get Irish citizenship, and, therefore, EU citizenship, for their child is the equivalent, quite frankly, of somebody in this part of the world winning the lottery. It is not just a question of residency. Indeed, as the first speaker said, it is not just about any immediate residency. The proof of that, if proof were required, is that our maternity hospitals have given plenty of evidence of people flying in from developing countries to have their child and flying out again, or coming from Britain, where they already had anti-natal treatment, just to have their child here before leaving immediately.

These people were not seeking immediate or medium-term residency. They were investing in the long-term in a project which they knew, as we know, has all sorts of spin offs, including the return eventually of that citizen and other things such as later claims for family reunification. From the report commissioned by the Department of Justice, Equality and Law Reform from IOM, The International Comparative Study of Migration Legislation and Practice, we note on page 55, and it is not the first time we have seen such a comment, that family reunification has accounted for three fifths of legal immigration into Europe over many years past. Paradoxically, although that immigration would be legal, it is not what the recipient country wished or sought. Legal it may be but is forced upon them because of the initial migration.

It may not be immediate residency that anybody is seeking but there are all sorts of long-term implications. It is a long-term investment. The factors that asylum seekers and illegal immigrants take on board when deciding where to go - it may not always be in their capacity to decide - include many variables. Those include the likelihood of their being deported, getting employment, meeting people of their own ethnic grouping and so on. The one non-variable which we will be able to offer irregular migrants is automatic citizenship. Therefore, it is our strong belief that the issue of automatic citizenship must be addressed by a change in Article 2 of the Constitution. We are aware of commentary on the alleged difficulties in light of the Belfast agreement. We do not think they are insuperable. I am happy to speak to the committee in that regard if members so wish.

I am grateful for the contribution made by Mr. Dooley of Children's Rights Alliance. I do not think I could possibly have asked for a contribution which would underline more the truth of what we are saying. Members will see from the submission, under the fourth point raised, that we stated that questions had been raised by asylum seekers, refugee and immigration support groups and the group represented by Mr. Dooley, regarding the difficulties of protecting the rights of those citizens in their native countries. The catalogue of difficulties enumerated by Mr. Dooley was mind-boggling and horrendous and underlines our position, that what one should do is legislate to ensure such children will not have automatic citizenship. I could not have sought a stronger affirmation of our position than the appalling vista opened up by Mr. Dooley.

We can change the Constitution in this regard and I will be happy to speak on that should members wish. We believe the manner in which this was included in the Belfast agreement was a grave mistake. Appendix 1, annexe 2 of our submission contains support for our argument. It is obvious from that that the British saw the difficulties and the corner into which we were painting ourselves. The wording of annexe 2 shows how they got around it. They were not to be similarly entrapped. That could be used as a template for our change. I can be more specific if members wish. It may have been a strategic mistake on our part to include an alternative because we think it is so important that automatic citizenship be addressed. We thought it was suitable to include, as we have done in appendix 2, an alternative - albeit a poor one - which only addresses some of the issues which arose before a previous committee during discussions on the Nationality and Citizenship Act. Although it has its merits it definitely falls far short of what we consider is absolutely crucial, a move away from automatic citizenship.

On residency applications made previous to the judgment, while it has been said that each of them will be decided on its merits, it is difficult for us to see why people should receive residency status on the basis of the Irish born child per se. Under section 3 of the Immigration Act 1999 many factors have to be taken into consideration before the Minister can order deportation. If such factors do not exist as would prevent deportation in such cases there seems no good reason to make any different judgment on those applications. We understand and would agree with the first speaker from the African Refugee Network that, given the system in which we are operating, those who withdrew their asylum applications in preference for residency must be allowed to re-apply for asylum. That would be only just.

Mr. Esabamen

I thank the committee for the opportunity to make a submission to the committee on behalf of the Tallaght Intercultural Action Group. This is a voluntary body of community development workers, refugees, asylum seekers working together to bring about equality of treatment and conditions of ethnic minority groups experiencing social exclusion in Tallaght using community development principles. The situation in Tallaght is unique in that asylum seeking and refugee communities have been established there since 1993. We are dealing with approximately 400 families whose positions and feelings on a wide range of immigration issues are very clear.

On carriers' liability, while we acknowledge states have a sovereign right to control their borders, we submit that this right should only be exercised in compliance with international law and international human rights obligations. Article 14 of the Universal Declaration on Human Rights states that every person has the right to seek asylum. We strongly believe that implementation of the carriers' liability will prevent people from seeking asylum. In other countries in the EU where this sort of legislation exists, there is no conclusive or even convincing evidence that this limits or aids controls at borders. Legislation imposing fines on airline carriers has been in place in the United Kingdom for many years. We know that applications have increased and the channels used by people have all been hijacked by human traffickers. The implication of carrier liability legislation will drive asylum seekers into the hands of traffickers and into significant situations of danger. The experience of Kurdish refugees who perished in a container en route to Wexford in December 2001 is a case in point.

Tomorrow is international refugee day. The fatal realities of fortress Europe have been documented during the period between 1993 and 2003. Some 3,750 refugee lives have been lost in that ten year period. People have died trying to enter fortress Europe. The main causes are put down to border militarisation, asylum laws, detention policies and even deportations. Refugees in Ireland, and their families in particular, are experiencing difficulties. We know of a family in Tallaght whose relatives are divided by borders from Burundi, Rwanda and Kenya. They have family in those areas with whom they are not in contact. Under international law, they have a right to be reunified with their family. Those people have no choice but to find ways and means to reunite with their families. The reality is that under this law the State will hand over the right of immigration control to airline staff, who are untrained even in regard to the documentation required to enter a particular country.

I have experience of having to deal with airline staff in relation to immigration regulations and so on. They have prevented me from boarding flights on several occasions without understanding I am legally resident in the Republic of Ireland. They do not wish to fall foul of particular legislation in relation to carriers' liability. We recognise that people enter Europe in an irregular fashion but that does not make them illegal. People seeking asylum are fleeing from conditions of grave danger. We must recognise, in relation to people who seek asylum, that while the majority of them are not approved by the stringent application of the Geneva Convention in Europe, 100% of African people seeking asylum in other countries do obtain recognition. The core dimension of that is clear, especially in the European Union. Airline officials faced with people from particular regions prefer to err on the side of caution and refuse people permission to travel.

On families of Irish born children, we are concerned that the Supreme Court judgment of 23 January 2003 did not take full account of the values of respect for the unique and equal dignity of every individual in the asylum process. Leaving aside administrative fears, the Minister has decided that cases will be taken on a case-by-merit basis which negates the EU Commission communication that judicial or legal precedent be set in determining issues around residency. The protection of family members in the Constitution, as Ray Dooley of the Children's Rights Alliance pointed out, is in jeopardy in this instance.

We come across particular situations in our work at community level. These laws coming from central Government impact on how communities integrate at local level, where we work and try to build a community that reflects the values of the Irish Constitution. We are placed in the unpleasant position where we have to constantly redefine our roles and how we engage with people. This makes it difficult for us. The issues resulting from this revolve around racism, violence and crime.

We must recognise that a large proportion of the families with children born here are here to stay. Many of them have been here for a number of years. Some of them are working and their children are doing well at school. There are issues around progression pathways for people who have residency but this has been put in jeopardy as a result of this recent judgment. We urge this committee to ask the Government to make concrete recommendations on a legal basis regarding the issues concerning how people can continue to live here.

I will now ask Ms Okafar to speak as she is in a better position to tell us about the particular issues in regard to the families of Irish born children because she has an Irish born child herself.

Ms Muriel Okafar

I did a little work with SONAS DP Ireland. Since the judgment, most families of Irish born children are uncertain of their future and have sleepless nights. With my legal background and work experience I feel that the decision that has been made does not clarify what will happen to the rest of the people who have applied. Most of the people who have applied were advised by operatives at the immigration office to withdraw their applications for asylum. As a result of that advice they are now caught by the decision of the Minister. Nobody knows what will happen.

The whole situation is out of their hands. It was not their own decision. Some of these people went innocently to the immigration office. I am aware that some of them were advised wrongly to apply for asylum but they did not know whether they would qualify or not. There is a lack of correct information on the ground. Our job is to try to inform people about the procedure which must be followed and to provide them with the information they need to qualify for refugee status. Some people who were not clear about the provisions of the Geneva Convention did apply. At this point they are not entirely responsible for the decisions that were made because they too were advised by operatives here. Are we to blame them or to blame those in authority who advised them?

Sr. Keenan

I thank the Chairman and the committee for inviting us to make a submission this evening. I will not talk about the Vincentian Refugee Centre because I assume the committee had time to read our annual report which was submitted during the week.

We believe that anecdotal evidence suggests that the Government, through the Office of the Refugee Applications Commissioner, was advising asylum seekers to withdraw their application for refugee status if they became parents of Irish born children. Government policy, therefore, was misleading, unclear and confusing. It played on people's unfamiliarity with the English language and, more important, with the legal system. This lack of clarity meant that many withdrew their applications.

One of the many examples is that of an asylum seeker from the Congo who withdrew her application for refugee status as she thought a residency application would be dealt with much quicker. She is now very worried, stressed and afraid, like many of the other women who visit the Vincentian Refugee Centre. The Minister does not allay her fears of a return to the Congo when he says there will not be mass deportations. That woman wants to know what criteria will be used in processing her claim for residency and how long more she has to wait in limbo for that decision.

We acknowledge that some have abused the system. Nevertheless, we must never forget that this is a women's rights issue because it is women who are responsible for bearing and rearing these children, without adequate support and as strangers in a society that does not always welcome them.

At present the applicants have a legitimate expectation for residency, in light of the case of the Fajujonu family who assumed they would be allowed to remain in the State. Immediately after the Supreme Court ruling, the Minister said publicly that there would be no mass deportations. Many of the parents awaiting a decision are living on €19.10 a week, are not allowed to work and unable to integrate into Irish society. For many, their child will be at least three years old before a decision is reached on the possibility of them remaining in the State with their Irish born child.

We call on the Minister to grant an amnesty to those who have already made an application for residency. The decision in the L. (D.) & O. (A.) case appears to be based on the view that children born to asylum seekers are not entitled to the same protection of the family in the Constitution as other children, yet our Constitution sees the family as the natural, primary and fundamental unit of society.

The UNHCR has declared 20 June 2003 as world refugee day, dedicated to refugee youth. By proposing to deport the parents of Irish born children, we are breaking up families and placing thousands of youth at risk. We want to know what support mechanisms could be put in place for Irish born children if their parents are removed from the State. If there are going to be de facto deportations, we in the Vincentian Refugee Centre would have grave concerns if the parents of an Irish born child were deported as they may face detention, torture, be unable to earn a living or provide for their child. Their Irish born children may face the danger of being victims of female genital mutilation, forced marriages or of being infected with HIV. They may have a poor quality of education, inadequate healthcare and live in poverty.

The Minister indicated that the length of time the parents of Irish born children have resided in the State would be one of the key factors in considering residency applications and that he would not be inflexible or unreasonable. We welcome this. We hope the Minister will clarify whether the length of time refers to the time in the State before the birth of the child, after the birth of the child or both. We want to know what the Minister has put in place to provide for the child whose parents decide to leave him or her in Ireland in the belief that this is in the best interests of the child rather than return with the parents to the country of origin. Who will care for these children? In reaching a decision, the Government must take into consideration the UN Convention on the Rights of the Child, the Geneva Convention on Refugees and all the other international obligations Ireland has ratified.

In regard to carriers' liability, additional resources should be given to the Garda National Immigration Bureau at the ports of entry rather than training airline and ferry staff as immigration officers, thereby creating a dual system. Many of the conventional refugees known to the Vincentian Refugee Centre came to the State using false documentation, otherwise it would have been impossible for them to enter the EU. The introduction of carrier's liability prevents asylum seekers from availing of the protection of a safe country. We believe that carrier's liability will drive asylum seekers into the hands of unscrupulous traffickers and it will not deter people from attempting to reach another country to seek asylum.

In the EU countries where carriers' liability exists, it has not worked as highlighted by the fact that the people who were found dead in the container in Wexford were not heading for Ireland but for the UK which already has carriers' liability legislation.

Chairman

We do not have much time left because we must deal with Committee Stage of a Bill. Before I call on members to put questions I would like to hear the personal experiences of somebody who is affected. I ask Ms Judy to tell us about her situation.

Ms Judith Magajs

Thank you, Chairman. I am a parent of an Irish child who is faced with the danger of going back to its parents' country. There is a fear of what the future holds for the child. I have been two years here with my baby. This child is used to this community. The immunisation system here is different to what we have at home because the diseases are different. Taking these children away from this society is life-threatening for the child. We all worry about what will happen to our children. As parents we prefer to go with our children rather than leave them in the care of people you do not know. There is a fear that if the child is taken back home we do not know what will happen. Malaria is a life-threatening disease which is airborne and it exists everywhere in Africa. The child is used to the food and culture of Ireland and all this will be taken away from him or her if they have to go away. We have a big fear of the future and of where we stand. Every day you live in agony. If you hear news on the television or in the newspaper, you do not sleep. You do not know how to take it in. One of our women is in a psychiatric hospital because of the shock she experienced. It is traumatic to think about going there with your children. I have two children. If I have to take them away from this country it will be to a country where they have never been used to living. The climate is completely different. We know how we feel when we go back to Africa. A very big right or privilege will be taken away from this child and we do not know what will happen to the child. Thank you very much.

Chairman

I wish to introduce the Deputies who are present today: Deputy John Deasy, spokesperson on justice for the Fine Gael party, the largest Opposition party; Deputy Joe Costello, the justice spokesperson for the Labour Party; Deputy Finian McGrath, an Independent Deputy from Dublin North Central and Deputy Seán Ó Fearghaíl from Kildare South is a Fianna Fáil Government Deputy. I am Seán Ardagh, the Chairman of the committee and a Fianna Fáil Deputy.

Deputy Deasy

I wish to ask a couple of questions. What I say may not be germane to what everybody else was talking about but I want to talk to you about your group and ask you a few questions about it. How much Government funding have you received since 1997? Have you enough funding and how many people are employed as volunteers?

Chairman

I ask you to take a note of the questions, because of the time constraints.

Deputy Deasy

Do you have enough funding to deal with 400 families, as was mentioned? That must be difficult. Racially motivated crime and violence was mentioned and could you say what kind of levels exist in your area? What is your relationship with the Garda? I agreed with a point in your submission which caught my eye, that integration activities should seek to enable refugees to use their own skills, knowledge and qualifications to represent themselves. I strongly agree with that statement. Is that happening? I take it that it is not happening as much as you would like.

Chairman

Deputy Deasy, do you wish to address any other person?

Deputy Deasy

No, thank you.

Deputy Costello

I am delighted to welcome all the groups who are present. We have discussed this issue for a long time. We are required to put the immigration legislation through the House before the summer and the Supreme Court decision is something that is hanging over everybody. This committee is in a sense facilitating both issues and trying to find a resolution.

The approach from some of the groups was that there should be a general amnesty as a result of the Supreme Court decision. That was suggested by the African Women's Group and the Vincentian group. The Children's Rights Alliance suggested that there should be a moratorium and that during a period of grace there should be an examination of the situation and an impact assessment carried out. The third position was that being born in Ireland should give no rights to the granting of asylum or refugee status and the Constitution should be amended to remove that right.

We are looking for direction on how to proceed. Nobody who has appeared before this committee has argued that there should not be some serious consideration given to resolving the issue arising out of the Supreme Court decision in light of the fact that all the children are Irish citizens and as such have constitutional rights. While the Supreme Court made a decision in relation to their parents' rights, it did not make clear the position in relation to the rights of the child or explore it in a fundamental fashion. That is the dilemma and the question is how to resolve the dilemma. As Sr. Bríd from the Vincentians stated, I would have thought that everybody was in agreement on the requirement to reactivate the application. The anecdotal information is that people were directed by the Rights Commissioner to change their approach once they were the parents of an Irish child. Therefore, it would seem that the State was misleading people in giving that direction. At the very least it should allow them to submit a fresh application.

The Immigration Bill that is before the Houses is a very tough Bill in that it will introduce tight controls on people coming to Ireland in the future. It will virtually exclude economic refugees from coming to Ireland. Perhaps Ms Ní Chonaill has not seen the amendments tabled which run to about three or four times the length of the original Bill. The Minister is very late in coming forward with amendments and has only produced the heads of his amendments. The Minister is considering introducing a period of detention, which effectively will be internment, followed by deportation. While this may be news to Ms Ní Chonaill, I would like her to respond to it.

The Bill goes so far that it will be extremely difficult to respect the international conventions, to which we are party, particular the 1951 Geneva Convention, and our commitments under the UN Convention on the rights of the Child. I would love to see the many organisations that have been represented here prepare a common recommendation on the way forward. We will also be advising the Minister of the direction he should take on this. The proposal of Mr. Dooley probably represents the best way forward, the declaration of a moratorium during which there will be the opportunity to explore the various issues, taking into consideration all the complexities involved. The danger is that we will do an injustice to the children, who are Irish citizens, if the Minister makes decisions without taking full cognisance of the full responsibilities to the child. A child-based approach would be the most appropriate.

Chairman

There are only seven minutes for Deputies McGrath and Ó Fearghaíl and for replies.

Deputy F. McGrath

I welcome all the groups, and particularly those working on the issue of racism and interculturalism. I commend and thank them for the work they have done. I know this is an extremely difficult time for them. As they are appearing before the joint committee it is important that we focus on the words justice and equality. In this committee today, regardless of political allegiances there is a serious commitment to justice and equality.

Do the witnesses feel that over the past 12 months racism has increased or decreased here? By preventing asylum seekers from travelling to Ireland under the new carriers' liability provisions, is the Government contravening Article 33 of the Geneva Convention, which prohibits the return of people to situations of danger? While I feel it has, I would like the witnesses' opinion on that. Based on personal experience, I strongly share the view that carriers' liability will push people into the arms of traffickers and criminals.

The Supreme Court judgment in January 2003 was not in favour of children's rights and I was very critical of it at the time. Does Ms Ní Chonaill feel Immigration Control Platform has made a positive intervention into the whole debate on interculturalism in Ireland in 2003? A leaflet published by that organisation states:

The aim of the organisation is to address the phenomenon of immigration to Ireland and to lobby Government for a tight immigration policy. The organisation aims at a very rigorous policy in relation to asylum-seekers, refugees, and a determined response to all illegal immigration.

Does Immigration Control Platform have a problem with people of different races and religions living on the island? Are its representatives aware that many of its figures are being used throughout the country at meetings organised by disability groups to protest at lack of services? Such figures make statements about 20% of births in the Coombe and 25% of births in the Rotunda. Does Immigration Control Platform believe these children have civil rights? From reading its leaflets, it seems to have a problem with that.

Given that this is an emigrant nation, does Immigration Control Platform feel any sympathy for migrants? I can name a country where there are 5,000 illegal Irish people. I will not name them, as I do not want to have them deported. Does the organisation feel some of its statements provoke and contribute towards racism? Its leaflet mentions that 11,634 people applied for asylum last year. That would make Croke Park look empty.

Deputy Ó Fearghaíl

I thank all those who made presentations. Mr. Dooley, in particular, summarised the very stark questions that need to be addressed. At this stage we need to pose questions to the Minister and I will keep any questions I might have until he and his officials appear here.

Chairman

I would like Mr. Esabamen to reply to the questions of funding posed by Deputy Deasy. Ms Mbunga should reply to the question raised by Deputy McGrath as to whether racism has increased. Ms Ní Chonaill should reply to the general questions. Each of you have one minute.

Mr. Esabamen

TIA is receiving absolutely no funding from anywhere at present. In the past it received funding from the Tallaght Partnership to do some work. It received particular funding to do research with the Combat Poverty Agency. The co-ordinator of TIA has been working for free for the past eight months.

With regard to the issue of violence and crime, overall the issue of violence and intimidation against refugees, asylum seekers, people of difference, migrants and people who are non-Irish in Tallaght was very significant from 1997 to 2000. Since we have been very active in 2001 this has significantly reduced. There is a meaningful level of integration. Serious work is going on in Tallaght, advocated by the Tallaght Partnership and Tallaght Intercultural Action. There has been a positive effect.

Chairman

Does Ms Mbunga find a similar situation?

Ms Mbunga

Is your question on racism? I am supposed to answer on racism.

Chairman

Yes. Is it similar to what Mr.Esabamen outlined? Is racism getting worse?

Ms Mbunga

I think it is getting worse. We have what we call institutional racism. What we have been calling for is a change of policy and the law, which are very discriminatory in themselves. We are trying to work with people at the grassroots level, but how much work can be done at a grassroots level when the institutions and the law are very contradictory? From my point of view it is increasing, which is very sad.

Ms Ní Chonaill

I cannot possibly deal with the scatter-gun of hostile questions, which I anticipated and heard from Deputy McGrath. So I will concentrate on the overarching one. He asked if we feel we have made a positive contribution. We most certainly do. He particularly mentioned racism and interculturalism - absolutely. Obviously, we stand against illegal immigration and the abuse of the asylum system. It is our belief that, in most European countries, it is illegal immigration, abuse of the asylum system and a feeling among the indigenous population that they are being abused and taken for a ride which causes feelings of hostility. That is the reason we made a contribution to the national action plan against racism, in which we stated that the best antidote to racism was proper immigration control, whereby a citizen walking along the street has the right to feel confident that a person from the visible minority passing by is here on our say-so. When one knows that, one is happy.

The Deputy also stated that this is the committee for justice, equality, defence and women's rights and he wished to put an emphasis on justice and equality. Well, I wish to put an emphasis on defence. Although I have been criticised for saying so, I repeat and stand over it: illegal immigration and the abuse of the asylum system are the modern form of invasion. One does not invade the west with a gun in one's hand - one would be shot. One makes damn sure one's hands are empty of everything, including documentation. Accordingly, it is the defence element of this committee which I address.

Deputy F. McGrath offered.

Chairman

That was a very stimulating discussion, but it is now over, Deputy McGrath. Beidh lá eile ann. I wish to thank all of the——

Deputy Deasy

Having read all of the submissions, all of the groups, with the exception of Ms Ní Chonaill's, have stated that the advice given when people withdrew their applications was very unclear and very vague on the part of the Government.

Chairman

That is right.

Deputy Deasy

That point has been very clearly emphasised in all of the submissions and I believe the committee should look into it.

Chairman

I thank the Deputy. That is something that has come across in all of the contributions from previous groups also. It is certainly very relevant to the whole debate. I thank everybody for their attendance at this meeting. It was very useful to have all those inputs to the debate. I am glad that Mr. Oakes and Ms Ní Chonaill also attended. They stated that they expected a hostile environment but I hope they have not found it hostile. We are trying to obtain more information so that we will be better informed and make better decisions for the Irish people. I thank members of the delegations for their help in that regard. Go raibh míle maith agaibh.

The joint committee adjourned at 6.33 p.m.sine die.