I have read and heard many comments to the effect that this is a deportation Bill and nothing else. That statement is untrue. This legislation runs across the gamut of immigration law. There is no democracy that I am aware of that does not have immigration laws.
There is no reason in principle why a non-national should be immune from deportation or exempted from all other provisions of immigration law, as amendments Nos. 1 and 2 propose, simply because a person is under the age of 18. It cannot be the case, for instance, that a convicted non-national drug smuggler should be ineligible for deportation because he or she is only 16 or 17 years of age. There may be other factors among those set out at section 3(6) of the Bill which, when taken into account, will dictate that in particular cases such a person should not be removed from the State.
The protection of unaccompanied non-national minors in the State as set out in section 8(5) of the Refugee Act, 1996, ensures that in every case where such a person arrives in the State the local health board is informed and the provisions of the Child Care Act, 1991, thereupon come into play. The health board's role includes determining on behalf of the child whether an asylum application should be made and the pursuit of such application as necessary, but it is, of course, much wider, extending to every aspect of the child's welfare.
Among the amendments to the 1996 Act, which I will be proposing later on Committee Stage, there will be one to extend the provisions to deal with unaccompanied non-national children who are already in the State when they come to notice. This is the more usual way in which such cases have emerged in practice.
Pending the coming into operation of the main provisions of the Refugee Act, the procedure envisaged by section 8(5) and its proposed amendment are already being operated in practice on an administrative basis. The usual circumstances in which such children come to notice are that they present themselves at the Refugee Application Centre in Lower Mount Street in Dublin. This one-stop-shop for asylum seekers, which was established on my initiative, also houses an Eastern Health Board centre and any such child is immediately brought across the lobby to that centre.
The phenomenon of unaccompanied children is a small but growing one. It did not feature before 1996. It may interest Deputies to know that so far, since the beginning of 1996, 33 unaccompanied minors have applied for asylum, all but five of whom came to notice at the Refugee Applications Centre or, before it opened its doors, at the head office of my Department.
I do not accept the logic underlying amendment No. 1 which assumes that there are never circumstances where such a person who has been refused asylum or who has not applied for asylum should not be returned either to the country of origin or the country where his or her parents, guardian or other relatives are living. Of course, every decision whether or not to remove such a child from the State must be taken carefully and all relevant factors taken into account, including what the situation will be in the other country.
That is what the list of factors set out at section 3(6) will achieve. The decision in any one case should not be dictated by any assumption that merely because the economic climate in the country of return is not as healthy as that in the western world, the return should not take place. Social workers dealing, for instance, with the question of inter-country adoption are at pains to decry this sort of West-centred assumption which seeks to justify the flow of children from developing to developed countries without regard to cultural, social and other equally important factors in the upbringing of a child, which should not be overridden by economic considerations.
In this context, it is noteworthy that the Hague Convention on inter-country adoptions, the ratification of which my colleague, the Minister for Health and Children, Deputy Cowen, is working on, is based, among other things, on the premise that inter-country adoption represents a subsidiary means of child care, to be resorted to only where a child cannot be cared for in a family in his or her own country. In relation to non-national children whose parent or parents are being deported, there is no good reason the rest of the family should not also be subject to the same provisions.
In the case of each child, the same careful consideration must be given to the factors set out in section 3(6). Those factors include the provisions of paragraph (a), the age of the person, paragraph (h), humanitarian considerations and, in particular, paragraph (c), which, if Government amendment No. 3 is accepted, will cover domestic and family circumstances. These provisions secure the interests of the child in each case and thus are in compliance with our international obligations. Accordingly, amendment No. 2 is superfluous.
The amendment to amendment No. 62 inserts a provision that exempts minors from detention pending deportation and deals with cases where guardians of minors may be in custody by ensuring the local health board can play its role. This is modelled on a similar provision in the Refugee Act. I am satisfied this is an appropriate way to meet the concerns of Deputies and of the non-governmental organisations with whom officials of my Department have had fruitful discussions. I acknowledge the role of the non-governmental organisations in this regard.
The purpose of amendment No. 62 is twofold. As well as dealing with the exemption from detention of persons under 18, it sets out court procedures for the review of detention where procedures that challenge the validity of the order have been instituted.
After the publication of the Bill, my officials had a series of fruitful discussions with a number of organisations which deal with asylum and refugee matters. While the Bill is not directed at asylum seekers in particular, but is rather a general immigration measure, it is to be expected that such organisations would have concerns relevant to the Bill. Several of them were at pains to point out that they recognised it was a general measure and asked that their comments be treated as concerned only with the Bill's provisions as they apply in the asylum context. Members will be aware of this since this committee has had a series of evidence-taking sessions involving many of the same organisations. I mention this by way of preliminary to the content of these amendments which reflect comments made during those discussions.
The proposed subsection (4) to be inserted by this amendment addresses the question of deportation detention for persons under 18. I have followed the provisions in this regard in the Refugee Act, namely, section 9(12) of that Act. Paragraph (a) of the subsection exempts people under 18 from detention. Paragraph (b) deals with cases where there is uncertainty as to a person's age. If there are reasonable grounds for believing the person is not under age, the immigration officer or a garda may act on the assumption that the person is an adult.
Paragraph (c) covers the position where a detained person has underage dependants. In such a case, the local health board is to be notified immediately. This enables the health board to assume its child care responsibilities in relation to young dependants who might otherwise be unminded. The new subsection (5) which this amendment proposes to insert is another borrowing, with some adjustments, from section 9(10)(b) of the Refugee Act.
Several non-governmental organisations expressed the concern that the provision at section 5 (4)(b)(3) required that a person who challenged the validity of a deportation order be detained for the duration. This was neither the effect nor the intent of that provision but it is no harm to spell out in the Bill a specific procedure which makes it absolutely clear that the question of detention in such cases is a matter to be determined from time to time by the court hearing the review proceedings. The provision enables the court, in deciding whether a person in detention may be released, to make the release subject to whatever it thinks fit, including a requirement to reside in a particular place or district, to report regularly to a Garda station, or to surrender any travel documents or passport.
I must make a number of important points in relation to section 5 generally. It has been misrepresented by a number of commentators as indicative of a wish on the part of officialdom to detain asylum seekers wholesale. This is nonsense. Apart from the fact that there is no such desire, the provision expressly permits detention only in circumstances where a person already the subject of a deportation order has failed to co-operate with the order, in other words, only as a last resort after the person has been asked to report at a specified time and place and has failed to do so.
The purpose of detention under the provision is only so that removal can be achieved and the duration of that detention will be until removal is achieved. The deportation order is simply an essential ancillary to the order for use where co-operation is not forthcoming and the deportation order cannot be achieved otherwise.
As to Deputy Higgins's amendment No. 40, the requirement at paragraph (a) of section 3(6) to have regard to the age of the person necessarily encompasses whether a person is under 18. The Deputy's amendment is therefore tautologous.
I emphasise again that the Bill is not what has been painted by some. It is a general immigration measure. It covers the entire gamut of immigration and residence law from arrival at a port to removal from the State. The fact that it deals in some detail with one facet of immigration law, that of deportation, does not and should not detract from the broad compass of the Bill. The emphasis of the debate on Second Stage may have suggested that it should have been called an asylum Bill, in that little regard was paid to the fact that it is intended to deal with the full range of circumstances in which deportation arises as a possibility, including the removal from the State of convicted sex criminals. I make these general points to emphasise it is not what it has been described in some quarters.