Immigration, Residence and Protection Bill 2008: Committee Stage.

I welcome the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, and his officials. The original agenda indicated that the Minister would provide a briefing on the intoxicating liquor Bill 2008. With the agreement of the committee, that item will be postponed until the beginning of our meeting tomorrow. Is that agreed? Agreed.

I ask Deputies to note that on pages 43, 57 and 58 of the Bill, in sections 36 and 50, the numbering of certain subsections is out of sequence. This is a typographical error and will be corrected in the next printing of the Bill.

I am not exactly sure what that means. Potentially, it could be a nightmare.

I only just received the note relating to this matter. Members should be given copies of it.

Yes, because matters are difficult enough already.

We will ensure it is circulated.

I wish to raise a procedural point. I seek the support and co-operation of the Chairman, who has a busy few weeks ahead of him. The point I wish to raise relates to Standing Order 92(2)(c). I may have a difficulty in being present to move some of my amendments. Would the Chairman be prepared to facilitate me in that regard or would it be possible for another member of the committee to move them for me? Today, for example, I will be obliged to leave at 4 p.m. to attend the funeral of a colleague of mine in the INTO. I do not wish to show disrespect but I must absent myself this evening. Would it be in order for another member to move the amendments in my name?

Our sympathies go to Deputy Finian McGrath on the death of his colleague. To outline the position regarding Standing Order 92, all amendments to any Bill must be moved by the Deputy who tabled them in person. In default of that, the Deputy may be substituted by a member of his or her political party or grouping. The latter would apply in the case of Deputy Finian McGrath. If a member does not have a substitute from his or her political party or grouping, it is acceptable for another member of the committee - who represents a different political party or grouping - to move amendments on his or her behalf with his or her express permission. If members of the committee feel they are in a position to move Deputy Finian McGrath's amendments, it will be in order for them to do so once he has made a request of them in this regard and given his express permission. Is that acceptable to members?

If the Deputy so wishes, I will move particular amendments on his behalf.

Is that acceptable to the Chairman?

It is fine if the Deputy indicates to Deputy Rabbitte the amendments he wishes him to move.

SECTION 1.

Question proposed: "That section 1 stand part of the Bill."

From communications we received from the Minister of State with responsibility for integration, it is clear he is anxious to see significant amendments to the Bill. Perhaps the Minister for Justice, Equality and Law Reform might indicate if he has received a submission from the office of the Minister of State. It is clear from media reports that the latter would like to see significant parts of the Bill amended and some of the bureaucracy swept aside. If the Minister has not received such a submission, perhaps we should postpone consideration of the Bill to allow the Minister of State to come before us to make a presentation regarding his concerns about the legislation.

We are already in committee and dealing with section 1, which relates to the citation and commencement provision. Ministers and Ministers of State engage in various communications regarding the content of legislation. The Minister of State with responsibility for integration consulted me in respect of the Bill. My consultations with him are complete and I do not propose to divulge them.

Great minds think alike. In an article inMetro Éireann, the Minister of State said ”For this reason, the Immigration Bill currently going through the Dáil will need to be amended, and in a fashion that explicitly makes us more attractive to immigrants. "He also indicated that “The bureaucracy of the past needs to be swept aside and our laws made easier for migrants to negotiate, if they can establish a good reason for living in Ireland.” This appears to be a fairly fundamental challenge to the Bill. Whereas one is accustomed to those in the grand old party taking both sides of the road with them, it appears we have a divided household in this instance. Will the Minister to reassert his paternity of the Bill or will it be significantly amended from elsewhere in the Government?

The Minister indicated that submissions were on an informal basis. Is the Deputy making a formal proposal to suspend consideration of the Bill until some future date?

I plead with Deputy Naughten not to press that, because we need to make progress as this is a huge Bill. At the same time, in fairness we need to know if there has been a rethink in Government about some of the substance of the Bill as implied by the Minister of State with responsibility for integration in that piece, which is targeted at the immigrant community. Perhaps a different view is being put forward to the rest of the community.

There is no formal proposal. Does the Minister wish to respond?

I would like to assist the committee. Deputy Rabbitte referred to a particular newspaper article that referred to sweeping away bureaucracy. There is a significant change management programme under way in the Irish Naturalisation and Immigration Service currently. I take it that it was to that the Minister of State referred.

One would not get that impression from reading the article. Considering the Minister has discussed it with his colleague--

I had consultations on the matter.

Considering he had consultations, I am sure we will see the Minister of State's position coming through the legislation as we deal with the amendments.

On section 1, could we have a copy of the regulatory impact assessment on this legislation?

I understand that is a Cabinet procedure and generally a confidential matter.

Does the Minister intend to publish it?

There was a regulatory impact assessment published with the scheme of the original Bill and it can be examined on the Department's website.

Is there none published with the Bill itself?

In regulatory impact terms the Bill has not diverged to such a degree as to justify a fresh regulatory impact assessment.

Question put and agreed to.
SECTION 2.

Amendments Nos. 1 to 3, inclusive, are related and will be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 10, to delete lines 2 to 10 and substitute the following:

" "biometric information" means information-

(a) relating to the facial structure of an individual, and

(b) which may include measurements of same,

that may be processed for the purpose of verifying the identity of the individual to whom the data relates;".

I thank the Chairman for his co-operation on the procedural issues raised earlier. Currently, the definition of biometric information is overly broad and could relate to any physical characteristics, making obtaining biometric information potentially intrusive. This amendment makes clear that biometric information is limited to facial and fingerprint information. I ask people to consider the details of this amendment and urge the Minister to accept it.

This is similar to an amendment I put forward on Committee Stage of the Passports Bill. Currently, only facial images are used and stored centrally for passport purposes. When I asked whether it was intended to extend that, the response from the Department was "not as yet". That should remain the case. At the time, I argued that if at some future date it was intended to expand beyond facial images, the issue would require a Dáil debate, rather than have it decided in Committee that the Minister can in the future determine what biometrics are required, without recourse to the Dáil. The provision could be extended to include a range of biometrics, although some of the technology is still doubtful. If society wants to extend the provision to cover fingerprints, eye scans or similar, we should have that debate. We should have it now so that we can list exactly how far we intend to extend the provisions. The Bill as structured will allow the Minister to make those changes, but we should revert to the Houses of the Oireachtas for the decision. At that stage the Houses can decide whether it is time to extend the number of characteristics required and have a debate to amend the Act.

I would like to hear the Minister's response to amendment No. 1. With regard to amendments Nos. 2 and 3, I presume he has received expert advice on the issue. Why does he restrict genetic information to DNA and not broaden it to include other genetic profiles relating to persons? Other genetic elements could in theory be included based on the wording proposed, but I presume that is not the Minister's intention when he specifically mentions DNA. The Minister, coming from a legal background, wants to ensure clarity on the legislation. Will he, therefore, throw some light on this issue?

These three amendments, the first in the name of Deputy Finian McGrath and the other two in mine, relate to the definition of biometric information. We all know that with advances in technology, biometric information is a very useful tool in ascertaining identity. It can provide assurance that a document such as a passport or any form of personal identification has been issued to a particular person and that it is being used by that person and not another. This assurance is a comfort to the proper possessors of such documents.

For example, I am reassured if I know that my passport or other identity document will not be used by another person with a vague resemblance to me who wants to represent himself as me, because that person's fingerprint, iris or electronic facial recognition data will not match the details about me embedded in the document. Biometric information is, naturally, an important security measure for officials engaged in immigration operations here and in many other countries. The technology has advanced to the point where biometric information is easy to give and to gather. We no longer need the messy fingerprint ink-pads and strips of paper that we all remember from older American crime films. The information can be stored electronically, and the checking process is more or less instantaneous.

A number of commentators have expressed concern at the possibility that the definition in the Bill of "biometric information" could be interpreted as including DNA data. I advise Deputy Naughten that DNA data is the basic genetic material for genetic purposes and that was never intended to be the case. The purpose of amendments Nos. 2 and 3 is to make that clear.

Amendment No. 1, tabled by Deputy McGrath, would seek to restrict biometric information to one specific form, that of electronic facial recognition information. I do not propose to accept this amendment. My Department has invested considerable time and effort into the development of systems based on fingerprint and palm-print data, where it will be possible to verify the identity of document holders by simple non-intrusive methods such as the placing of a finger on a detector pad. This technology has the capacity to work in a variety of locations, and is portable. It is in line with developments world-wide in matters of identity checking and is on a par with systems in use in many employments here where the palm-print is now used for clocking in and out instead of the clock-in card. The Deputy's amendment would have the effect of setting that investment at nought. It would also remove from the Bill the element of future-proofing that the present definition offers, by requiring that any move to use other measurable forms of personal features would require amendment of the primary statute.

That is the course of action Deputy Ó Snodaigh advocated. In an era when we have rapid changes in technology, it is desirable that the legislation permits assembly of basic biometric information, while containing the safeguards now contained in the amendment of excluding information related to the DNA profile of the person. That is a fair balance to strike in the legislation.

I take on board the points raised by the Minister.

I suggest the Minister should reconsider the issue regarding genetic profiles. I might assist him in that regard before Report Stage.

Is the Deputy referring to genetic profiles based other than on DNA?

We can talk later on the matter.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 10, line 8, before "and" to insert the following:

"but does not include information relating to the DNA profile of a person;".

Amendment agreed to.

I move amendment No. 3:

In page 10, between lines 26 and 27, to insert the following:

" "DNA" means deoxyribonucleic acid;

"DNA profile", in relation to a person, means information derived from an analysis of a sample of genetic material that is clearly identifiable as relating to the person and that is capable of comparison with information derived from an analysis of another sample of genetic material for the purpose of determining whether or not that other sample could relate to that person;".

Amendment agreed to.

I move amendment No. 4:

In page 10, between lines 33 and 34, to insert the following:

"(f) digital record, and”.

This amendment would provide clarity to the legislation. The Bill as it stands states that a "document" includes:

(a) any written matter,

(b) any photograph,

(c) any currency notes or counterfeit currency notes,

(d) any information in non-legible form that is capable of being converted into legible form,

(e) any audio or video recording, and

(f) a travel document or an identity document;

It does not include a digital record. It may be the case that (d) may cover it. In order that such a record be included, provision should be made in the legislation.

I share the Deputy's concern to ensure that the definition of "document" should include digital records. However, I am satisfied that paragraphs (d) and (e) of the definition in the Bill as it stands comprehend digital records and the other matters of concern he raised. The language chosen by the Parliamentary Counsel in that paragraph is designed to be general enough to include not only any of the various digital information media that are now available, but microfiche and microfilm, and other possible technologies that may not have been invented yet. In the light of this reply I ask the Deputy to withdraw his amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 5, 706 and 707 are related and may be discussed together by agreement.

I move amendment No. 5:

In page 11, line 12, after "1967" to insert the following:

"the text of which Convention and Protocol is set out, for convenience of reference, in the Schedule".

This amendment relates to the meaning attaching to the Geneva Convention in the definitions section. The purpose of the amendment is to ensure that the text of the convention is set out for convenience of reference as a Schedule to the Bill. While I had intended to check before I came in here, my memory is that was done in the 1996 Act, which this legislation repeals. Therefore in a complex area of law in an Act that will be greatly thumbed by many different people it is desirable that the Bill when it becomes an Act has attached to it as a Schedule the text in the English language and in the first national language if that is the wish of members of the committee. I am not sure whether we are bound by the Official Languages Act in that regard. The text of the convention and the New York Protocol should be attached for convenience.

We are also discussing amendments Nos. 706 and 707. Amendment No. 706 makes explicit what we have just discussed in terms of the Schedule being attached. Amendment 706 would incorporate into the Title of the Bill:

"TO GIVE EFFECT TO THE CONVENTION RELATING TO THE STATUS OF REFUGEES DONE AT GENEVA ON THE 28TH DAY OF JULY, 1951 AND TO THE PROTOCOL RELATING TO THE STATUS OF REFUGEES DONE AT NEW YORK ON THE 31ST DAY OF JANUARY, 1967,".

One follows on from the other. It is desirable that we make plain and clear what this is about. This is the cornerstone convention and ought to be attached for the reasons I have explained.

These amendments seek to include the text of the Geneva Convention on Refugees into the Bill in the same manner as it was included in the Refugee Act 1996. I am not at all opposed in principle to the amendments. Having the text of the convention and the related New York Protocol of 1967 will be a useful addition to the Statute Book, and one that will be convenient for practitioners and those who wish to ascertain Irish law on the subject. It will also be an important symbolic signal that Ireland is committed to its responsibilities under the convention and its related protocol. I say symbolic, because in this Bill, as in the Refugee Act 1996, the proposal is not to make the convention a part of Irish law, but rather to enshrine in statute the provisions necessary for Ireland to be able to fulfil the obligations to which it subscribed by becoming a party to the convention.

If I accept this amendment now, on Committee Stage in the Dáil, the size of the Bill will increase by approximately 25 closely printed pages. This would mean that the staff of these Houses, and the staff of my Department, would need to proof check not the 140 pages of the present Bill, but closer to 200 pages; and they would need to do so at the end of each parliamentary Stage. Thus accepting this amendment now would mean that the extra pages would need to be painstakingly checked four or five times before the Bill was enacted: the Bill as amended in Committee here, the Bill as passed by the Dáil, and perhaps the Bill, as amended on Committee and Report Stages in the Seanad, and finally the version to be sent to the President for signature.

I ask Deputies to accept that I will table an amendment on Report Stage in the Seanad to achieve what is sought here. On that basis, I invite the Deputy to consider his amendments.

On the related amendment proposing a specific reference to the convention in the long title of the Bill, I am advised by the Parliamentary Counsel that it is not the usual practice to refer again in a long title to an international instrument that has already been given effect in Irish law, as is the case here. The passage at lines 9 to 11 of the long title referring to "FOREIGN NATIONALS IN NEED OF PROTECTION FROM THE RISK OF SERIOUS HARM OR PERSECUTION ELSEWHERE," addresses the matter suitably. However, I have no objection to including a reference that specifically acknowledges the convention in the long title and I will consult the Parliamentary Counsel on precise wording.

My purpose is not to impose unnecessary additional work on the limited staff available for scrutinising the Bill section by section. I do not want to make the task of dealing with a fairly unwieldy Bill more difficult than it is. However, we could compromise since we ought to enshrine amendment No. 5 on Report Stage in the Dáil. That would be the appropriate place to do it.

That is reasonable. There must be some proof checking when so much matter is being inserted into a statute so I agree with that suggestion.

If it were inserted on Report Stage in the Seanad it would need to come back to the Dáil anyway.

Apart from which we do not want to overwork the Members of the Upper House. On that explicit understanding I will withdraw the amendment and I thank the Minister for his response.

Amendment, by leave, withdrawn.

Amendment No. 6 is related to amendment No. 607a and will be discussed together.

I move amendment No. 6:

In page 11, lines 27 to 29, to delete all words from and including "immigration" in line 27 down to and including "Act;" in line 29 and substitute the following:

" "immigration area" means an area designated by order undersection 114 as an immigration area for the purposes of this Act;”.

These are technical amendments designed to bring clarity to the concept of the immigration area. The State at present is divided for immigration purposes into immigration registration areas, within which an immigration registration officer carries out functions related to immigration. The immigration registration office for Dublin is at Burgh Quay. In other parts of the State, Garda superintendents are designated as immigration registration officers for their Garda districts.

The Bill moves away from the terminology used in the old legislation and shifts the emphasis on to the notion of residence permission given by or on behalf of the Minister. There is still, however, a need to have a regional structure to ensure efficient and sensible operation of the immigration function, encompassing such matters as the routine renewal of residence permission. For example, it would not make sense that a foreign national resident in Gort a'Choirce in County Donegal might look to renew a residence permission in the immigration area office in Galway or Cork. The designation of offices in the manner proposed will give greater clarity for users of the immigration processes.

It is intended to retain the regional structure based outside Dublin on Garda districts and the local Garda superintendent's office, for the immediate future. These amendments will also allow for flexibility with regard to the location of such offices, allowing a move from a district-based to a county-based system in the future.

Amendment agreed to.

I move amendment No. 7:

In page 11, lines 30 and 31, to delete "in regulations to be" and substitute "by order undersection 114 as”.

This amendment follows on from the previous amendment.

Amendment agreed to.

Amendments Nos. 8 to 10, inclusive, are related and will be discussed together.

I move amendment No. 8:

In page 11, lines 39 and 40, to delete "the Health Service Executive,".

This amendment addresses the definition of "information holder". It is defined in section 2 as meaning a Minister, the Revenue Commissioners, a local authority, the Health Service Executive, the Garda Síochána or the holder of any office or body so established by the Minister. The amendment will ensure personal confidential information held by the HSE or the legal officer of an individual in question is not released.

I support Deputy Naughten's amendment and ask the Minister to consider it.

Amendments Nos. 8 and 9 provide to ensure the confidentiality in the work of the legal aid board and the HSE in immigration and refugee cases. Without these amendments, both bodies would be obliged to give information in their possession concerning an individual in question if requested to do so by any State or semi-State body. This could have serious implications for the privacy rights for immigrants and refugees. Amendment No. 9 would allow the Minister to designate other bodies as exempt from section 106, where appropriate, and ensure the system works well. For once I am trying to give the Minister some power.

I take it from these amendments that Deputies are concerned about legal professional privilege and the necessary element of confidentiality that exists between a doctor and a patient.

The Department is reviewing the Bill's provisions regarding information-sharing. In principle, it makes sense that a whole-of-Government approach be taken to immigration matters and foreign nationals present here to ensure consistency in our approach across the board. If there is information bearing on immigration aspects of a person's presence in the State, it seems sensible such information be shared with the part of the Government directly responsible for the immigration function. That is not to say that the immigration authorities would necessarily need the intimate details of a person's medical file or that there should be a breach of lawyer-client privilege.

However, take the example of the Department deciding a person is permitted to remain in the State on condition that he or she should not draw on a particular range of State benefits. If another part of the State is asked to supply one of that range of benefits to that person, the second should at the very least tell the first, as a matter of good management. For example, if a foreign national is in employment here without an employment permit, then it makes sense that the employment inspector who discovers this should inform the immigration authorities of the breach of conditions. That is the sort of material being sought in the information exchange provisions.

I naturally share some of the Deputies' concerns about lawyer-client privilege and doctor-patient confidentiality. I am prepared to re-examine the question to ensure the legislation does not compromise the relationship of confidentiality that must exist between doctor and client or lawyer and client.

I would like to proceed with the development of provisions that will support a suitable level of information-sharing between public institutions while acknowledging that certain kinds of information must remain between the individual and the provider of that service to the individual.

I thank the Minister for this consideration. It is important he just does not examine the issue of doctor-patient confidentiality. Other health professionals provide services to individuals and their information should also not be disclosed. We are agreed on what we wish to include and otherwise.

Is the concern over communications stemming from other aspects of the physical and mental care of a patient, irrespective of the status of the person rendering the service?

Exactly. The Minister's focus on the definition of "information holder" is on the basis of his Department collating information. Will it be a two-way process? Information has leaked from some of his Department's sections on the abuse of social welfare benefits by individuals going through ports and airports, for example. If such individuals claim social welfare assistance, would it be possible for that information to feed back to the Department of Social and Family Affairs?

Protocols are in place for the exchange of information with the Department of Social and Family Affairs.

Amendment, by leave, withdrawn.
Amendments Nos. 9 and 10 not moved.

I move amendment No. 11:

In page 12, line 4, to delete "or aircraft" and substitute ", aircraft or bus".

This amendment relates to the definition of a member of a crew. We are talking about ships, trains and aircraft. The fact that a bus is not included appears to be an anomaly. I do not know whether provision has been made for this already.

Deputy Naughten has been very helpful in this amendment because he has unintentionally drawn my attention to an error in the legislation.

I am glad that I am useful for something.

If one examines the definition, it provides that member of a crew means any person engaged in the working or service of a ship, train or aircraft. Of course, in the case of Ireland, a train can only come from within the common travel area. There is no provision for the conveyance on a train underground or on a ship onto an Irish railroad, and of course our rail gauge is different.

The Minister for Transport, Deputy Dempsey, has big ideas.

The Deputy had better explore them with him, but I do not believe they will be fulfilled within the reasonably anticipated period of operation of this legislation. I have to address that issue now because the reference to a train in a member of a crew is, in fact, otiose in this legislation.

As regards the question of a bus, there may be a difficulty there as well. As I understand it, the crew of the bus are in the same position as a passenger when they arrive in the State on, say, a car ferry - the only position in which the crew of a bus could arrive from a place other than the United Kingdom, so "by air or sea" would suffice. I propose to bring forward an amendment to address these defects on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 12 is related to amendments Nos. 13, 15, 18, 50, 54, 59, 61, 81, 85, 94, 95, 97 to 99, inclusive, 183 and 253, and all these amendments will be discussed together. Is that agreed? Agreed.

I move amendment No. 12:

In page 12, between lines 14 and 15, to insert the following:

""proposed exclusion duration" shall be construed in accordance withsection 45;”

Perhaps I could withdraw that amendment and mark it for Report Stage.

The Minister has proposed to withdraw the amendment. Is that agreed?

There are many related amendments.

He can only deal with this amendment at this stage. The other amendments will have to be dealt with when we come to consider them.

They are a series of drafting amendments, but as I do not have the explanation for them before me, I propose to indicate my intention of moving them on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 13 not moved.

Amendment No. 14 is in the names of Deputies Rabbitte, Naughten and Finian McGrath. Amendments Nos. 321 and 322 are alternatives to one another and must be grouped together. Otherwise amendment No. 322 would not have the opportunity to be debated. Amendments Nos. 33, 104, 110, 114, 134 to 140, inclusive, 143, 144, 146 to 153, inclusive, 159, 160, 178, 180, 321, 393 to 399, inclusive, and 683 are related. Amendments Nos. 141 and 142 are alternatives to amendment No. 140. Amendment No. 145 is an alternative to amendment No. 144 and amendment No. 322 is an alternative to amendment No. 321. All of the aforementioned amendments, accordingly, will be discussed together.

I move amendment No. 14:

In page 12, between lines 20 and 21, to insert the following:

""separated child" means a child under the age of 18 who is outside his or her country of nationality or, if stateless, outside his or her country of habitual residence, and who is separated from both parents or from his or her previous legal or customary caregiver;"

We are still on section 2, which is essentially concerned with definitions that precede the general Part 2 of the Bill. In moving amendment No. 14, I am seeking to have included in the definitions a definition of "separated child". The Minister will be aware that the committee agreed to the Chairman inviting organisations that were especially concerned about this dimension to make submissions. We arranged to hear them and, indeed, the substance of those had been referred to in one way or another by many of the organisations which appeared before the committee. The general conclusion was that it was extraordinary there was no explicit reference to separated child in the Bill. I have forgotten the paternity of the definition that exists but it is understood clearly by organisations that work with children and have knowledge of international law in this area as an acceptable definition of "separated child". This means a child under the age of 18 who is outside his or her country of nationality or, if stateless, outside his or her country or habitual residence and who is separated from both parents or from his or her previous legal or customary caregiver. I am asking the committee to include that definition in the Bill to enable us at a later stage to consider the primacy which ought to be given to separated children, in particular, in the Bill.

I briefly recall the evidence given to us by some of the organisations. Pretty much everyone who appeared before us was very concerned about this matter. I can refer, for example, to the paragraph from the submission of Barnardos, where our attention was drawn to the fact that separated children were those under the age of 18 years who were outside their country of origin and separated from either parents or their previous legal customary primary caregiver. Barnardos says that approximately 5,000 separated children arrived in Ireland between 1998 and last year. From January to September 2007, 251 separated children were referred to the Health Service Executive, 144 of whom were reunited with some of their families here. The remainder were taken into the care of the HSE.

On Second Stage, Deputy Naughten drew attention repeatedly to the phenomenon of missing children, for which there is no explanation, and the concern arising therefrom. For example, trafficking is a large global business and approximately half of those being trafficked are children, a number of whom have been trafficked to Ireland. Some of the missing children have been trafficked for the purpose of exploitation, specifically in the sex industry. Some of the children have been discovered in brothels.

Given that the Dublin unit of the HSE's services for separated children seeking asylum has estimated that approximately 20 children in their care in 2005 were trafficked, there is a problem. In dealing with this difficult question, we must have regard to what is in the best interests of the child. For this purpose, it is necessary that the definitional section of the Bill include a definition of "separated child" that has some international recognition and would be acceptable to the Minister and his Department. I propose that the committee agree to enshrine amendment No. 14 in the definitional section of the Bill.

There is an array of amendments, some of which are technical in nature while some are fundamental. I will follow on from Deputy Rabbitte's comments on separated children. Every member of the committee believes it is a fundamental weakness in the legislation that there is no definition of a separated child and that the legislation can only be considered to address issues in respect of children who arrive unaccompanied if they are from outside the European Union. In terms of trafficking, particularly into the sex industry, of chief concern is trafficking into the EU. Protection for trafficked persons is addressed in section 124, but the provisions relate only to people trafficked from outside the EU. Amendment No. 14 is important because it encompasses all children under the age of 18 years who are outside their countries of nationality, irrespective of whether that is within the EU.

We have all seen media reports from Sweden, Holland and so forth concerning children exploited through the asylum system. They enter a jurisdiction unaccompanied, are placed in asylum accommodation of one form or another and find themselves being retrafficked within the EU. A number of such cases are still before the courts in some member states. It is important that we put measures in place to ensure children entering the country can be identified, a proper assessment of age can be carried out and the benefit of the doubt can be given to the children, which is not the case in the legislation as constructed. There must be proper registration. While I thank the Minister and his officials for the figures they have furnished, there is no accurate figure because the HSE compiles only a percentage of the figures based on those reported to it. This weakness was highlighted by the Children's Rights Alliance in its presentation to an Oireachtas committee. Proper family tracing is necessary.

Of importance is the issue of guardianship. An amendment in this grouping relates to a determination of the best interests of the child. It is not in the best interests of the child to hand him or her over to the HSE. Media reports have told of the HSE's problems in dealing with children of Irish origin and of the lack of social workers available out of hours. The Garda Síochána is at its wits' end in this regard. The HSE has highlighted in its reports the fact that, while it has responsibility for the children in question under the Child Care Act 1991, they are not treated in the same way as Irish-born children and the same supports are not being put in place.

According to the figures furnished by the Minister's officials, 5,369 referrals were made to the HSE and 2,536 children were placed in care between 2000 and 2007. Of the 441 children who went missing, 53 are accounted for. The numbers are substantial. Approximately one in five children from the period 2000-07 remain unaccounted for, including five Nigerian girls who went missing from their accommodation in June 2007, the youngest of whom was 11 years of age. Some of these children may have been trafficked into the United Kingdom or other parts of continental Europe or are being used in Ireland's sex industry.

It is sickening that the HSE, which has been condemned by its inspectors in this regard, states that the standard of residential care provided for teenage asylum seekers is not up to the HSE's standards, it is poorly supervised, leaves the children vulnerable to exploitation and treats them differently than Irish children. There are multiple reports. A centre in which the children are being accommodated does not have CCTV cameras or alarms and the staff have no way of knowing or being sure that the children are in the centre. Boys have been found in girls' accommodation andvice versa, curfews are not being abided by and the children are not accounted for between 9.30 a.m. when they leave for school and 9.30 p.m. when they are supposed to return.

It is one issue after another. The first action must be to appoint guardians for the children so that pressure can be placed to ensure the children are treated in an acceptable manner. We must ensure that legislation is focused on a child's best interests. All children, regardless of nationality, would be protected by the trafficking amendment. That is not provided for in the Bill, as it stands, because protection only pertains to children from outside the European Union. Amendment No. 14 is particularly important for that reason.

Amendment No. 683 would take responsibility for separated children from the HSE because I have no confidence in that agency, given that its own inspectors are highlighting that the children are not even treated to the same standards as Irish children, that resources are not being put in place and that the standards being observed are not acceptable in this country. The HSE seems to be doing nothing about the matter and children are continuing to disappear. As the numbers of disappearances have not varied significantly during the years, it is clear the HSE has not put the procedures in place to address the problem. The onus is on the Department to ensure a system is in place to protect children from exploitation. Amendment No. 683 is of fundamental importance in ensuring children are protected by a separate service within the Department. The skills are available within the Office of the Minister for Children to give them the full protection of the State.

The amendments pertaining to travel documents are self-explanatory. I do not wish to discuss them at this stage because we will address related amendments later.

It is fundamentally important that guardians are appointed, proper resources are put in place to ensure at least the same standards as those obtaining for Irish children and that responsibility is taken away from the HSE which has not improved its supervision, even though children continue to go missing on a regular basis.

Deputy Naughten referred to further discussion of the amendments he tabled. Members will be aware there is no facility for further discussion of amendments that have been grouped. The Deputy's comment may pertain to an amendment which I have not listed.

It pertains to travel documents.

All amendments I have set out must be discussed now and there will be no facility to discuss them when they are moved subsequently.

I am aware of that.

Amendment No. 14 which deals with the definition of "separated child" is important and sensible if we are serious about protecting children and their rights. As I said at the launch of the Bill, it is important that we produce legislation that is based on compassion and respect for human rights, as well as dealing with the legal aspects. The definition of "separated child" is important in complying with the UNHCR recommendations on separated children and the UN Convention on the Rights of the Child, as well as ensuring proper treatment under section 24 of the Bill.

Several Deputies have spoken about cases of missing children. We have to be proactive on this issue. We have seen recently in Austria what happens when the system breaks down and there is no follow-up when children disappear. A nightmare scenario developed in that country for a young child and, later, mother. We paid heed to the submissions made in recent weeks by NGOs and I ask the Minister to listen carefully to our concerns. We have addressed the issue of trafficking and abuse and are conscious of the sex industry and the exploitation of children. Just imagine the horror faced by a seven year old boy or girl who lives with sexual exploitation. We should focus on these matters when we discuss this legislation. For that reason the definition in amendment No. 14 should be seriously considered.

I will speak on amendment No. 14 and a number of others proposed by Deputy McGrath on my behalf because a Deputy who is not a member of a committee cannot move amendments on Committee Stage and receive a response from the Minister. As it is often difficult to understand the Minister's thinking, I thank Deputy McGrath for proposing the amendments. Others have spoken about amendment No. 14, which would provide for a UN compliant definition of "separated child". The other amendments are similar, which is why they are grouped together. It is a pity, however, that they are being discussed out of context at this early stage.

Amendments Nos. 104 to 110, inclusive, would ensure vulnerable persons, separated children in particular, would not be found to have committed an offence by virtue of having failed to enter the State by air or sea at an approved port or to possess valid documents. It is internationally recognised that an asylum seeker may have good reasons for not having documents and it should be obvious why separated children or trafficking victims may also lack them. Not everybody enters the country through approved ports. If people are fleeing danger, they will not check whether their ports of entry are approved but will use whatever avenue is open to them. I accept that the receiving government finds it more difficult to prove a person's identity but that is a responsibility we face when we receive refugees and consider their cases.

Amendment No. 114, tabled by Deputy Naughten, would ensure trafficking victims and separated children would not be found guilty of an offence for not presenting themselves upon arrival. When people flee persecution, they will not make it a priority to visit another country's officials, especially if those officials are in uniform. They are often suspicious of those in authority and their priority is to find a safe place. Especially in the case of separated children who might not be aware of their duties, it should not be an offence to fail to present to immigration officials.

Amendments Nos. 134 to 136, inclusive, and 147 are also being discussed. They would ensure separated children who are EU nationals could avail of the assistance outlined in the section. A "foreign national" is defined in the Bill as a non-EU citizen. There are occasions when children who are EU nationals have been separated from their parents, who may not be EU nationals. It is convoluted and difficult when some of these amendments are taken out of the context of the section in itself.

The other amendments are Nos. 139 and 141 to 143, inclusive. The purpose of these amendments is to strengthen the protection for separated, or potentially separated, children. Under the law as drafted, a person who enters the State accompanied by a minor need only state something along the lines of he or she verifies that he or she is taking responsibility for the child. Amendments Nos. 139 and 143 give the immigration officer leave to make more extensive inquiries, where appropriate, to ensure the person bringing the child in is not being trafficked.

Amendment No. 141 allows the immigration officer to make inquiries of the child as well as the accompanying adult. Amendment No. 142 imposes a positive obligation on the officer to make these inquiries where there is a reason to doubt either that the child is accompanied, or that the accompanying adult is taking proper responsibility for the child. The Minister has an amendment No. 140, which is only marginally preferable to the original text on the issue.

On amendment No. 145, the Bill requires notification of the HSE but says nothing of the child's status after such a report is made. This amendment will ensure a child will not be turned away or treated as an illegal immigrant in such instances.

In amendment No. 149 we propose a new section to deal with separated children, just as there is a separate section for trafficked victims. I am still working on that and I hope we will not reach that section before I put the final touches to it.

With amendment No. 153, the reference is that the Bill, as drafted, allows for a young person of undetermined age to be treated as an adult if the immigration officer thinks that he or she appears to be an adult. Given the consequences for people who appear to be an adult as seen in recent court cases, this has potentially serious consequences for older children.

The amendment ensures that where there is any doubt, the assessment will be made by someone professionally qualified to do so. It also ensures the person will not be deported or treated as an illegal immigrant until such a decision has been made. It is a reasonable amendment, considering that some children under 18 can look much older, or at least in their late teens. According to recent court case decisions, people in early teens can look or act older than they are.

On amendment No. 160, the Bill provides that the protection applicant shall not be denied entry to the State. This amendment gives the same right to persons whom the immigration officer believes may have been trafficked. If they are denied entry and repatriated, they may be at risk of being trafficked again or further abuse and should instead be allowed to enter and seek assistance. It also ensures the power of the immigration officer to deny entry to young people is subject to the requirements set out in the section this proposes and the section dealing with separated children.

Amendment No. 178 makes it explicit that persons seeking protection, separated children and suspected trafficking victims are not subject to the power to refuse entry. The Irish Human Rights Commission, in particular, has expressed concern that this is not set out clearly enough in the Bill.

The final amendment I will address at this stage is No. 180. This is important in that it attempts to undo some of the damage which has been done under the carrier liability legislation. Currently, carrier liability laws have been strongly criticised by human rights groups as they turn airline staff into immigration officers and impose significant barriers on people who are in genuine need of protection.

Currently there is no defence for a carrier to indicate it allowed somebody without proper documentation to board because it had reason to believe the person was fleeing persecution. In crisis situations, people frequently do not have the opportunity to get visas and most Western countries do not tend to give visas to people from countries undergoing crises, such as wars, famines, etc.

We have no idea how many people have suffered since countries began introducing the carrier liability laws because such people could not get on to a plane to get away from persecution. There is no need for the carriers to keep a record of those they have turned away.

There must be a defence so that the staff of airlines or shipping companies do not run the risk of being prosecuted because they tried to help somebody where they genuinely suspected the person to be in need of help. This amendment would provide that defence. It also provides the same defence in the case of separated children or suspected trafficking victims, as the carrier may feel that such persons would be safer being allowed to enter. In other words, the carrier staff may feel it would be safer to present such people to an immigration officer - in Ireland in this instance - as an at-risk person, than to turn them away to face the consequences they are fleeing from or which made them board a ship or plane illegally and without the required documentation.

Most of the amendments are reasonable and address circumstances which we have found in this State. For example, children and refugees have had difficulty gaining access to the country, or when here, they can be found guilty of an offence even if there was no intention to do so. The intention may have been to remain safe.

Most of the amendments in this grouping deal with children and those under 18 who are in a new country with a different culture and language. They may have, God forbid, undergone some type of persecution in their country of origin. Rather than being faced with the full rigours of the law, as some parts of this legislation would have it, and being dealt with as if they are adults as other parts would suggest, we should afford some type of leniency in the approach. The leniency would not necessarily extend to the consequences. We should remember that we are dealing with children in most of these amendments.

I do not quite understand Deputy Ó Snodaigh's reference to carrier liability as it does not arise under these particular amendments. Clearly, carrier liability is now a universal feature of practice in the area and I am amazed Sinn Féin is putting forward the idea there is something wrong with carrier liability in this context. In this jurisdiction in 2007, over 2,500 applicants claim to have arrived in Ireland with no travel documents. That was out of a total number of asylum applications for that year of a little over 4,500. It seems extraordinary that the Deputy would seek to repeal carrier liability provisions in that context.

I will approach the merits of issues about children, which are serious and important. The amendments propose a variety of different approaches to the question of what were known hitherto as "unaccompanied minors". Although a change in language has been adopted in much of the discussion on this subject, and these children are often referred to as "separated children", I find the expression "unaccompanied minor" a preferable expression because it draws attention to the fact that the minor is not accompanied. Most of the international instruments relating to the rights of children envisage that children would be brought up in their families as the preferred option.

Council Directive 2001/55/EC uses the phrase "unaccompanied minors". This is a directive of the minimum standards for temporary influx. I wish to make a correction regarding the procedures directive; I should have said Council Directive 2005/85/EC of 1 December 2005 on the minimum standards and procedures of member states for granting and withdrawing refugee status. It defines "unaccompanied minors" and I am open to a more precise statutory definition, along the lines of the directive, being incorporated in this legislation. I will examine this matter in light of the amendments that have been tabled referring to separated children. While "separated children" may be an expression used in rhetoric on this subject, "unaccompanied minors" is a more accurate definition of what is involved.

Whatever the merits of that, is "unaccompanied minors" included in the interpretation section?

No. It has been used in previous legislation without definition and I am open to a more precise definition of it along the line of the phraseology used in the common procedures directive of the EU.

Of the three main approaches set out in the amendments before us, I regret to say the one taken by Deputy Naughten is unacceptable in almost every respect. Amendment No. 683 seeks to have me establish in my Department a branch of the social services, in effect. It is not the function of my Department to provide social services and that is why the legislation has always provided that unaccompanied minors come into the care of the Health Service Executive, HSE. The HSE is the body charged by statute in this State for the provision of social and personal services and that is its responsibility. I do not have moneys in my Vote to provide a service along the lines advocated by Deputy Naughten. I do not answer questions here for the HSE so the Deputy will have to explore other avenues in that respect. I appreciate that the exploration of those avenues can often be tortuous.

The amendment proposes that I establish in my Department a social service for children at risk. The HSE has responsibility for minors at risk generally and is obliged to protect all children in the State who are at risk. I know Deputy Naughten has expressed concerns at how the HSE has fulfilled its statutory obligations relating to a specific class of children but they are a sub-class of a wider class, namely children at risk in Ireland generally. I cannot accept the proposition that this problem should be fixed by taking measures that would result in the diffusion among a number of organisations of the resources available to deal with children at risk. Ultimately, provision is made in the Estimates for expenditure on children at risk and an allocation is made to the HSE in that respect. The HSE must assess priorities and make choices in that regard.

The effect of Deputy Naughten's proposal would be to establish yet another organisational and statutory entity; yet another State body to address this issue. It seems to me that this area is the responsibility of the HSE and I cannot see why we should break up resources and give responsibility for one part of the challenge of children at risk to an organisation with no experience and no acquired skills in the business of dealing with the needs of children at risk. Were I to propose such a step, I have no doubt I would be subjected to a barrage of criticism on the basis that I was creating a conflict of interest by giving the job of looking after the welfare of children in these cases to the same body, my Department, that is charged with responsibility for making immigration and protection decisions relating to the same children. It seems extraordinary that the function of the Department as gatekeeper of the immigration system could be confused with the function of the HSE in providing care for these children. To my mind these are very distinct functions. I cannot, therefore, accept amendments that would establish this type of social service in my Department. Such a service already exists as part of the State service; it has the experience, the trained and qualified staff and the extensive range of statutory powers that enable it to deliver the services and attention children at risk in this State need, regardless of the threat and regardless of their nationalities.

The discussion on this amendment draws attention to a feature of the phenomenon of unaccompanied minors: not all of these children are necessarily at risk, though in this legislation we deem them at risk and, therefore, admit them to care automatically. For example, Deputy Naughten referred to the position of EU nationals, who are not automatically deemed at risk when they arrive in the State unaccompanied. An unaccompanied minor arriving from outside the EU is deemed at risk and automatically taken into care on arrival in the State. Not all of these children are at risk, yet the State is obliged to provide the full care service for such children and the HSE, which provides social services, is expected to assume they are at risk. This is a legislative determination that we are entitled to make and it is the determination proposed in this Bill and I draw attention to this fact.

Deputies Naughten and McGrath tabled other amendments relating to the admission of separated children to the State and they are amendments Nos. 104, 105, 110, 114, 144, 153, 159, 160, 178 and 180. The intention of these amendments is to require an immigration officer to admit to the State a separated child and to exclude a person asserting that he or she is a separated child from offence provisions relating to unlawful entry to the State. These amendments intend to change the current approach to this matter in the Bill. The approach is the same, in effect, as the present arrangement for dealing with unaccompanied minors.

In practical terms, at present, in any case an immigration officer has concerns that a foreign national child arriving in the State may be an unaccompanied minor he or she must contact the HSE forthwith. The Bill is, like the current law, silent on whether such a child must be given entry permission because this allows the immigration officer, using expert advice from the HSE, to decide the best course for a child in particular circumstances. In many, if not most, instances the proper course may be to permit the child to enter the State. In such cases the child will be in the hands of the HSE, the body with the authority, responsibility and skilled staff to deal with a child at risk and decide what is in his or her best interests. However, there are circumstances where the best interests of a child require a refusal of entry, with the child sent straight back to where his or her parents are. This is also a form of family reunification.

Imagine a family of non-EU nationals who are intent on securing entry to Ireland and manage to smuggle a child into the State, on his or her own, aboard a carrier. The amendments proposed by the Deputies would render the State obliged to give the child entry permission, thus giving the rest of the family a basis to seek permission to travel to Ireland. If the HSE, through contacts with a similar body in the relevant jurisdiction, could establish the facts it would be in a position to recommend that the child be refused entry and returned on the next ferry or aircraft to where his or her parents wait.

I cannot accept Deputy McGrath's amendment No. 149, which excises parts of section 24, bringing the HSE into the picture. The HSE is the statutory authority of this State responsible for children in care. Once we make a legislative determination that unaccompanied minors from countries outside the EU arriving in this State require care, responsibility for them must rest with the HSE.

The amendments requiring that a separated child be given an entry permission also require that entry permission be given to a protection applicant or to a victim of trafficking. However, the Bill, as it stands, already makes it clear that a person arriving at a frontier who claims protection must be permitted to enter. This provision is spelled out in section 25(1)(b). This does not need to be spelled out again and again in the Bill; once is quite sufficient. There is a potential danger in the repetition of a provision that is already effective in its own right. The risk is of inadvertently omitting the repetition from a place in the Bill where it could otherwise have been repeated, based on the pattern of other repetitions, in which case the omission could give rise to a question of why the otherwise applicable provision should not apply in the circumstances of the omission.

The unnecessary repetition of particular provisions, however worthy their object, can lead to a real danger of statutory misconstruction of the entire statute. Likewise the Bill deals with the immigration law aspects of recovery and reflection periods of those who are thought to be victims of trafficking at section 124. I know we will consider that provision in committee and the detail of that examination must be deferred. I will listen carefully to what Deputies have to say on the substance of that section.

I cannot accept a provision that appears to give a right of entry to this State for any victim of trafficking in people, irrespective of their connection with the State. Nowhere in the international instruments dealing with this very serious phenomenon is there mention of a generalised right for victims of trafficking to claim the protection of whatever territory they find themselves in or can manage to enter. Ireland does not, in principle, owe a duty of protection to, for example, a Georgian who has undergone trafficked labour in Germany, having been smuggled there by a gang based in the Ukraine or Albania. That is a matter for the German authorities. Yet the amendments seek to equate the right of international protection for refugees with the temporary supports that a state might give to trafficking victims on its own territory.

The big danger in a proposal of this type is that it makes exceptions regarding the law on entry to the State which could give those who seek to abuse such laws wide scope to exploit them. As it is, there are serious concerns about adult foreign nationals who happen to have youthful looks using their appearance to pass themselves off as, and avail of the protections that are properly available to those under 18. We are aware of the extent to which our present protection processes are subject to abuse by those who turn out to have no basis for seeking protection at all. Nothing could be easier than to turn up at a point of entry to the State demanding to be admitted on foot of assertions that one is a victim of people trafficking. It is of no value to say that will never happen; because experience shows that it can and will.

I would like to turn now to a set of amendments within this larger group that deals with how an immigration officer is to manage the business of detecting an unaccompanied minor on that child's arrival at a point of entry. These are amendments Nos. 135, 136, 138 to 143, and 147, dealing with section 24, and, in particular, subsection (1) of that section. The aim of this provision, one that I am sure is shared on all sides of the House, is to give the immigration officers sufficient scope to use their training, experience and instinct to step in where they have a concern that a child may be in the company of an inappropriate adult and is thus a possible trafficking victim. At the same time, we must ensure that the provision is not so prescriptive as to require that immigration officers intervene in circumstances where to do so would be heavy-handed and more than likely to upset the child. That can arise where a child is in the temporary care of cabin crew while moving between one parent and another. Another possibility is that of an overtired child arriving on a flight from Lanzarote having spent the whole flight arguing with its parents, who seeks to repudiate them or make loud allegations that they are not, in fact, his parents.

My officials have discussed the matter with their counterparts in the office of the Minister for Health and Children with a view to settling the terms of an appropriate provision here. Certain of the amendments proposed have real attractions and may go towards simplifying and clarifying the language. I direct Deputies' attention to amendment No. 140 in this context, although I acknowledge that Deputy Ó Snodaigh believed it did not go far enough. It is part of that same desire that we all share to achieve workable language that will allow the immigration officers at the points of entry to do their job in a way that safeguards the interests of children who may be trafficked, but at the same time is not overly prescriptive. I would like an opportunity to discuss a possible rewording of subsection (1) with both the office of the Minister for Health and Children and the Parliamentary Counsel, that would take into account the matters proposed in the amendments I have listed. Those amendments I reflect on are amendments Nos. 135, 136, 138 to 143, and 147.

While on the question of section 24, I reiterate my opposition to fettering the scope of action of the immigration officer as proposed in amendments Nos. 144, 149 and 153. I am conscious that age determination can be difficult and can take time but I do not want to confine the powers of immigration officers by requiring that entry permission be given in every case where an age determination process must be undertaken. If that can be done with reasonable expedition, in a couple of hours perhaps, there is no reason the immigration officer should postpone a decision whether to give an entry permission until the matter has been reasonably determined. If it is to be a matter of days, then the sensible course is to give the person an entry permission subject to strict conditions.

That brings me to Deputy Rabbitte's amendment No. 33, which would insert a requirement to have regard to the special position of separated children. The only doubt I have regarding the amendment is whether it puts the proposition in the right place in the Bill. Apart from that, I am minded to accept it. If the Deputy would agree to withdraw the amendment for the moment, I undertake to discuss with the Parliamentary Counsel where best it should appear in the Bill, and to bring forward an amendment on Report Stage that will achieve the substance of the Deputy's proposal.

I have not yet touched on amendment No. 134 in the names of Deputies Naughten and McGrath. This seeks to extend the provision at section 24 regarding the entry of unaccompanied minors to EU and European Economic Area nationals. I understand the issue raised by the Deputies. On the one hand, I know that child traffickers are not very particular about the nationality of the children in whom they trade. On the other hand, one must have regard for the fact that EU nationals have freedom of movement within the European area. These rights are not age-limited. A 17 year old French student arriving with his guitar on his back to busk his way around Ireland, or a 16 year old German travelling alone to join her aunt resident in Ireland for study purposes, might not like being treated as a child at risk. I would like some time to reflect further on the legal and sociological aspects of the proposal in amendment No. 134, and would ask the Deputies to consider their amendment on that basis.

To sum up, I am minded to take on the substance of amendment No. 33 and, accordingly, of No. 14. There may be merit in amendments Nos. 135, 136, 138, 139, 141, 142, 143, and 147, and I would like to consult with the draft people of the office of the Minister with responsibility for children on how best these can be taken on board. As part of that, I will withdraw amendment No. 140 when it comes up for decision later. I cannot accept the other amendments in this group.

That is a huge wedge of the Bill and there is a huge wedge of concern out there on this issue of children. The Minister did not indicate why, and I am not entirely sure that I understand why amendments Nos. 31 and 32 are not included in this section, in the sense that the core point of amendment No. 31 is to require regard to be had for the best interests of the child. That is the type of overriding consideration---

It is not under discussion with this group.

I understand and I raise the question as to why it is not. It seems that is the point the organisations were trying to make to us. Some of them recommended that the rights of the child be paramount. Some recommended that the best interests of the child be the concern.

We are considering the best interest principle here in the context of the unaccompanied minors. There is a separate discussion on the question of children generally in the legislation, which I take to be the point of amendments Nos. 31 and 32.

It is a separate issue and that is why the Bills Office has grouped them differently.

I am open to Deputy Rabbitte's amendment on the subsequent sections when we come to it.

It tends to colour one's response to the group of amendments Nos. 14 to 683, inclusive, with which we are dealing, because the core point is the best interests of the child. There may be some reason they are separate, but if so, it escapes me.

As regards this group of amendments, I welcome that the Minister has indicated he is prepared to accept the essence of amendment No.14, which sets out the interpretation of a separated child. I do not know if he maintains that he prefers the term "unaccompanied minor". It seems to me there is a need to reflect on whether there is a world of difference between the term "unaccompanied minor" and "separated child". A minor might be unaccompanied for casual, everyday, routine reasons that arise in a family. This was adverted to by the Minister, Deputy Brian Lenihan, when he said that a child may present at one of our frontiers having had a row with the parents. I have one or two children myself who might have sought asylum on that basis, but this is not my primary concern here. Perhaps the term "separated child" is more pertinent in terms of what we are trying to do; in other words it describes a child that is, perhaps, stateless or without either parent or guardian and there probably is a distinction in that regard. I welcome the Minister's response.

I also welcome the Minister's response to amendment No. 33, which provides the requirement that appropriate assistance and protection is afforded the child in said circumstances. The organisations that were before the committee were mainly concerned with this issue, arguing the appropriate protection and assistance would be available in the circumstances described. I have no difficulty if the Minister, his advisers and the Parliamentary Counsel think the section ought more appropriately be inserted at a different point in the Bill. It is not worth dividing the committee over that viewpoint. I am happy with the essence of it being included.

The remaining thrust of the Minister's response is that the last thing he wants to countenance is taking responsibility for separated children at the Department of Justice, Equality and Law Reform. Given the traditional view of that Department, perhaps many unaccompanied children would agree with him in that regard. It seems the job is not being done very well at the moment. If in a relatively small population with a relatively limited amount of children, so many children can go missing and we do not know about it, then there is a concern that the job is not being done. That was the point being impressed on the committee by some of the people who made submissions to us.

The Minister wants to ensure the immigration officer has the right to decide and can bring his or her own judgement to bear. In the absence of clear criteria this seems fairly arbitrary. For example, if we examine section 24, the final subsection states that "If and for so long as it appears to an immigration officer that a foreign national is 18 years of age or over, the provisions of this Part shall apply to the foreign national as if he or she were 18 years of age or over." That seems to be an unusual belt and braces. The meaning of that, as I see it, is if the immigration officer was wrong, he was right for as long as he was wrong. This is a catch-all absolution for the immigration officer if he is wrong.

In this second batch of amendments I am not sure that the organisations who felt motivated to go to considerable pains to set out detailed responses for us in this area of concern will be satisfied with the Minister's response. It may be reasonable for him to say that it is not practicable to expect that a separate section of the Department of Justice, Equality and Law Reform should be required to supervise this area. However, this is not an argument the Minister advances. Given the multifarious responsibilities of his Department, the Minister has no difficulty with different sections of it dealing with different responsibilities. Chinese walls are supposed to apply and I accept that he will want to keep his immigration officers away from this section, but there are others in the Department who would be prepared to do the business.

I do not know where to start but I will go through the issues as best I can. We will then examine the Official Report before we revisit it. On the principle issue regarding unaccompanied minors, is the Minister stating that if a child is accompanied it is okay, even if the other party happens to be a trafficker? This is the reason the term "separated child" has been used and has been crafted very carefully by the organisations that know the problems which arise. The term "separated child" refers to a child that has no guardian, whether it is a legal guardian or parents. If a 13 year old child has an adult with him or her, then he or she is not an unaccompanied minor but could very well be a separated child. I know the Minister has put forward--

That is dealt with in section 24(1)(b).

I was about to come to that point, so I am glad the Minister has flagged it.

We are helping each other.

There is a fundamental problem with section 24(1)(b) which is the use of the word “may”. I accept the Minister will now re-examine this. I have a fundamental concern with the retention of the word “may”. This means it is at the discretion of the immigration officer whether he or she is satisfied that the child is accompanied. Amendment No. 138 has the word “shall” which is of fundamental importance to the debate. There needs to be an onus of responsibility on the officer that he or she is satisfied that the child will not fall into the wrong hands. I ask the Minister to consider the amendment in that context. Amendment No. 140 accepts the principle of the argument we are making but, in the context of drafting legislation, different words can have different implications.

I will return to an issue I first raised with the Minister's officials at a private meeting following the publication of the legislation. I also raised the matter on Second Stage, as it is of fundamental importance to me. I raised it at a press conference this morning and do so now on Committee Stage. I am not happy with the Minister's response and I am genuinely disappointed, especially given the fact he was Minister of State with responsibility for children prior to his present role. He is making an error in ignoring this issue. Wearing the hat of the Minister for Justice, Equality and Law Reform, he can wash his hands of the matter and declare it not to be his problem. However, when the HSE confirms toThe Irish Times that not one of the centres accommodating foreign children in these circumstances meets the standards necessary to be registered to operate or provide accommodation for children, there is something fundamentally wrong with the system. The centres in question are State-funded by the Department of Justice, Equality and Law Reform and the HSE but privately operated. They are not subject to independent checks by the social services inspectorate, in contrast to those run for the benefit of Irish children. In some centres staff do not have a Garda clearance certificate and in one centre inspectors found numerous areas in which it had failed to meet national standards for children in residential centres. In another centre HSE staff found boys in the bedrooms of girls and vice versa. This is not an isolated incident and there has been report after report in the media on the subject.

In fairness to the HSE, it has held up its hands and admitted it does not meet the basic standards it sets for Irish children in this regard. The Minister says it is not his responsibility and that he is handing the issue over to the HSE as it has legal responsibility for the matter. When one in five children, passed from his Department to the HSE, goes missing, there is something fundamentally wrong with the system and I cannot accept the explanation he has given. I believe he genuinely wants to ensure the children concerned are not abused and do not fall into the hands of traffickers. I urge him to look at the provision again before Report Stage, perhaps in consultation with the HSE. We all want to ensure the children are protected and treated in a similar manner to Irish children but that is not happening.

The Minister said not all children from outside the European Union were at risk. I accept his point but that is not a valid reason for failing to provide protection for European children who have been trafficked. His response, to the effect that we do not want to stop a 17 year old coming over from France to do a English language summer course, does not hold water and is not adequate to deal with trafficking within the European Union, which is a serious problem. We will deal with the more fundamental issue of adults being trafficked at a later stage. Some trafficked people are minors from within the European Union and they are being exploited, either in this jurisdiction or others. I accept that the wording of my amendment may not be perfect but I cannot see why we cannot make proper provision for children, no matter from where they come. If there are concerns, there is an onus on the Minister's officials to step in and provide the necessary protection. The definition of a separated child is relevant.

The Minister has said an immigration officer, in consultation with the HSE, will decide what is in the best interests of a child and whether to allow a child to enter the State or force him or her to return home. He made a valid argument for that position but what happens if we cannot get the necessary HSE staff at 10 p.m. on a Saturday to make the decision in consultation with the immigration officer? The Garda Síochána, with which the Minister met this morning, has suggested there is a problem with the availability of social workers outside the standard Monday-Friday hours of 9 a.m. to 5 p.m. to provide basic services, not just those for children, whether Irish or non-Irish. If we cannot get staff around the country to perform other tasks, how are we to get them at Dublin Airport, Rosslare Harbour or Knock Airport to consult immigration officers to decide whether it is in the best interests of a child to be allowed access to the country or be returned? Trafficking does not only occur from outside the European Union; there is a fundamental problem within the Union which we cannot ignore or brush under the carpet, as the legislation proposes.

This is not a press conference but a parliamentary committee and I take issue with the Deputy's grandstanding. This committee is considering legislation concerning the regulation of immigration and entry into the State. I do not accept his charge that I am indifferent to the position of children taken into care or the phenomenon of human trafficking. Dealing with these issues is not necessarily the purpose of the legislation.

The amendment tabled by Deputy Naughten, the one substantive amendment he disclosed in the course of his contribution, suggests section 24(1)(b) be amended to provide that, where it appears to an immigration officer that a foreign national under 18 years old has arrived at a frontier of the State accompanied by another person, the officer should require that person to verify that he or she is taking that responsibility. Some 1.5 million foreign nationals arrive in the State every year. Under the Deputy’s amendment, they would each have to verify that they were the person taking responsibility for another person. The consequences of requiring our immigration staff to implement that obligation would be very serious for foreign nationals genuinely travelling into the State, whether on foot of a visa or otherwise. The queues and number of administrative staff required to police such a provision would be enormous. That would be the practical consequence of the one proposal the Deputy has submitted. I have no doubt the queues and resultant delays would lead to substantial and justifiable agitation and concern among those who travel to Ireland from non-EU countries. For that reason, the immigration officer is given discretion. “Discretion” has been portrayed as a bad word in respect of this legislation but, in reality, immigration officers must have discretion. One fact I learned as Minister of State with responsibility for children was that the circumstances of unaccompanied minors arriving in the State were multifarious and diverse, far more so than the circumstances of many adults who might seek asylum.

Reference was made to missing children. In our experience a great number of such children are, in fact, looking to link up with families already in the country. Let me put the subject in perspective, in 2007 the total number of such children in care was 180. The total number of children in the care of social services runs into thousands, and these 180 children are entitled to be cared for in the same way as any other child in care. I will raise the concerns that the Deputy has brought to my attention with the Health Service Executive, as the statutory body responsible for their care.

It is worth noting the age profiles of these children. I do not have figures for those in care but I have last year's figures for those who sought asylum. Of those who sought asylum, 58 were aged between 16 and 17 years, ten were aged between 14 and 15 years and five were younger than 13 years of age. There has been a consistent pattern in the claims at the upper end of the age categories. Youths rather than children would be a very good description of the greater number of those so claiming.

I agree with the Deputy that human trafficking is a very serious phenomenon. Report Stage of the Criminal Law (Human Trafficking) Bill 2007 is being taken in the Seanad tomorrow and we are committed to dealing with it through a comprehensive national programme. A director has been appointed, which has been the subject of another debate on another item of legislation. In the context of the Bill before us, the important point is that we have provided that those who are trafficked have adequate provision for reflection.

Is Deputy Rabbitte pressing his amendment?

I am pressing my amendments. I think the Minister indicated a willingness to take them on board. I am not clear following that debate whether we have resolved the discussion about "unaccompanied minor" versus "separated child".

I have indicated that I am prepared to review the question but my instinct is to prefer the term "unaccompanied minor" because it is the phrase used in the relevant EU common procedures directive. I stated earlier that the common procedures directive uses the expression "unaccompanied minor" and the legislation has been formulated on that basis.

In terms of answering the question posed by the Chairman, I am not sure that when the Minister is finished tussling with his innermost thoughts if he should come down in favour of "unaccompanied minor" where does that leave the issue of the "separated child", the subject of my amendment?

The term "separated child" has a very particular meaning given to it and from it derives some subsequent amendments to the Bill. If this were to fall, we might have a problem later on. The agencies at the coalface of this international exchange understand the term "separated child". Deputy Naughten made a good point. He stated that because a minor is accompanied does not automatically mean that the person accompanying the child has his or her interests at heart. The Minister's response to that point is that section 24(1)(b) deals with it. It may or may not for the very same reason, ironically that the Minister adverted to in rebutting one of Deputy Naughten’s amendments, which is that the onus of duty on busy immigration officers is such that all things seeming to be normal, the immigration officer will not look behind the relationship between an adult and a minor arriving at Rosslare.

We know, although we do not know the scale, that young people have been trafficked and are in fear of their safety, if not of their lives, and would not under any set of circumstances bring it to the attention of the immigration officer that the adult is not his or her guardian or parent. They would be afraid to do so, having been sold in their village of origin for the very purpose of being delivered for nefarious reasons. I think there is a distinction to be drawn between "separated child" and "unaccompanied minor". It is a qualitative difference and is more than a nuance, in terms of what we are trying to protect against in my amendment.

Chairman, I am sorry that this is a longer answer to the question than I intended to give, but none the less, it is clear why it is not easy for me to give a "Yes" or "No" answer when I do not know quite where the Minister will come down. He tells me he sees merit in the amendment but that a struggle is still under way on whether he favours "unaccompanied minor" or "separated child". I urge him to run with "separated child". I am not entirely sure that I understand his reasoning. There are no international instruments or conventions that require the Minister to be over-sensitive. Neither is there some prescriptive reason that he should stick with "unaccompanied minor" rather than the term that is more acceptable to organisations that are concerned about children being trafficked, exploited and ferried in for nefarious purposes. I urge the Minister to throw off the shackles of that bureaucracy that his brother wants to sweep aside and take a risk and go with the term "separated child".

Thank you Deputy. I invite the Minister to deal with this issue in isolation and then I will come back to Deputy Naughten.

I made clear my instinct is to preserve the concept of the "unaccompanied minor". The Deputy may wish to press his amendment, but in the eyes of an immigration officer, the idea of an "unaccompanied minor" has far more clarity than the more abstract idea of a "separated child". If we are trying to give guidance and assist those who have to administer a system, the concept of an unaccompanied minor has far more precision and verbal exactitude to my mind than the concept of a separated child.

I respectfully disagree, Chairman. I think whatever it has going for it, clarity is exactly what it does not have. There can be considerable confusion and deliberate misrepresentation associated with the term "unaccompanied minor", which is less likely to present in the case of a "separated child". A "separated child" seems to me to be a phrase that encompasses and provides against the fears and concerns of the people who raise this with us. It is quite easy to pass off the idea that an immigration officer would not pick up an unaccompanied minor at one of the frontiers of the State. It is quite easy to pass off the appearance of normality when a young person is accompanied by an adult. The mere fact that a young person is accompanied by an adult in the context of what we are talking about is not of itself an adequate protection.

Let us put ourselves in the circumstances of an immigration officer and consider the throughput, busyness, and volume of what he or she has to contend with. Where there is an enterprise afoot, the purpose of which is deliberate misrepresentation, it would be a very perceptive immigration officer who would pick it up. Plain-clothes gardaí who are trained to pick up such things say they would have great difficulty doing so. The force of protection which comes from the definition of "separated child" is more significant.

I support Deputy Rabbitte. I made this argument earlier regarding "accompanied" as against "unaccompanied" minors. I accept the Minister's point about 1.2 million children coming into the country annually.

I said visitors who are foreign nationals, not children.

The impression was given that it was 1.2 million children.

I am sorry. The figure is 1.2 million non-EU nationals.

Several reports - the Welsh Assembly report is the most recent which comes to mind - point to Ireland being used as a vehicle to traffic children into the United Kingdom. We do not know the scale of this issue. However, if it exists we need to ensure that protection is put in place.

I take issue with the Minister's claim that I am grandstanding with regard to unaccompanied children. I am not. I made my concerns well known to his officials in private before the issue was discussed in public. I see this as a fundamental issue. We would not be responsible public representatives if we allowed this legislation to be enacted while ignoring this issue. Of the 130 children placed in care in 2007, 31 are missing. I cannot stand over those figures.

Would Deputy Naughten like to see those children detained?

We are talking about a small number of children who are not living in accommodation of the same standard as Irish children. The Health Service Executive admits this. I acknowledge the Minister's undertaking to discuss the matter with the HSE. Nevertheless, it would be wrong of me and the members of the select committee to allow this legislation to pass without questioning that fundamental issue.

I am not grandstanding. I ask the Minister to confirm with his officials that I brought this matter to their attention long before it entered the public domain. This is a fundamental issue that needs to be addressed in the Bill. I accept the Minister's undertaking to talk to the HSE and I hope the matter will be addressed. I do not say it must be addressed by the Minister's Department but this Bill is the only mechanism available to me to expose a weakness in the system which needs to be addressed.

It is important that the definition of a child who is open to exploitation is as tight as possible and that the proper protection is in place. We must put mechanisms into the immigration service to ensure that these children can be identified. Good practices which are in place in other EU countries could be replicated in Ireland.

I accept that the large numbers of people entering the country might make it difficult to identify such children. However, the fact that a child is accompanied does not mean he or she is not under threat of exploitation.

Deputy Rabbitte was anxious to ascertain whether I would accept, in section 24, the expressions "separated person" or "accompanied by such a person". I am prepared to revisit the issue on Report Stage.

The fact that organisations describe children in a certain way for public discussion purposes is not, necessarily, a reason to so describe them in the Statute Book. The statutory position is that children arrive as unaccompanied minors. That is what the immigration officer sees. These officers are plain-clothes gardaí attached to the Garda National Immigration Bureau. They have very practised eyes, access to substantial intelligence from other police forces with regard to the risk of trafficking and are, at present, engaged with other police forces in a very substantial operation to increase their intelligence capacity with regard to trafficking.

I remind Deputies that we are scheduled to conclude this meeting at 5.30 p.m. and to resume our consideration of the Bill tomorrow.

I can cheer you up, Chairman, by confirming that it is our agreement. We will observe that arrangement.

My being cheered up is not the issue. I am merely giving Members information.

It is important that your usual benign approach to life is maintained for the course of these 707 amendments.

This is an important category in the Bill, from which derive several other matters with which we will deal as the Bill proceeds. I have not changed my view on the Interpretation Section. I note that the Minister has said he will accept amendment No. 33 but that he may, after consultation, feel it necessary to put it into a different section of the Bill. I have no difficulty with that.

Rather than divide the committee at this hour of the evening, I am willing to withdraw amendment No. 14 on the understanding that the Minister has not finalised his view on the issue. I will want to come back to it on Report Stage and to take advice on it in the interim. Rather than terminate the business of the committee on a vote at this stage, I am prepared to withdraw the amendment and return to it on Report Stage. I urge on the Minister that there is a distinction. I am not advocating that we should base the construction of the Bill on a particular kind of rhetoric used by organisations who are concerned about the Bill. The term "separated child" is not as casual as that. It is not a rhetorical flourish; it is a considered concept for those who have a concern about the welfare of children in a world where the trafficking of children is a significantly lucrative business, one that has touched this sceptred isle also. It is a serious matter which I will further examine before Report Stage.

I reiterate what Deputy Rabbitte has stated. I ask that the Minister reconsider the issue of the definition of unaccompanied minor, as the current definition would create an anomaly. I will withdraw the amendment subject to having leave to reintroduce it.

Amendment, by leave, withdrawn.

Amendment No. 15 has already been discussed with amendment No. 12.

I move amendment No. 15:

In page 12, between lines 27 and 28, to insert the following:

" "transit visa" shall be construed in accordance withsection 9;”.

We cannot discuss the amendment. There does not seem to be much point in the Minister moving it when we do not know what it is about. He withdrew amendment No. 12.

I will withdraw amendment No. 15 and table another amendment on Report Stage.

That is what the Minister indicated when he withdrew amendment No. 12.

I will look out for the Minister.

Amendment, by leave, withdrawn.

I move amendment No. 16:

"In page 12, to delete line 36 and substitute the following:

"(b) an identity document;”.

I tabled this amendment to get an explanation. It relates to the definition of a travel document, a passport or a national identity document issued by a member state. Why does the definition of an identity document include a local document issued by a local authority, whereas the definition of a travel document does not?

An identity document includes a passport, a visa or a transit visa. There is a more precise definition of "identity document". There are separate definitions given for travel and identification documents in the interpretation section. While it can be the case that a travel document can be an identity document, it is not always the case that an identity document will be a travel document. The reverse does not always follow.

It does because a travel document here must be an identity document.

Yes. However, an identity document does not have to be a travel document. For example, a card that authorises us to enter the Houses of the Oireachtas would not necessarily be a travel document.

Amendment, by leave, withdrawn.

Amendments Nos. 17, 294 and 295 all seek to set up a new immigration appeals tribunal and have been disallowed. Setting up such a tribunal would involve a charge on Revenue. Under Standing Order 151, an amendment which could have the effect of imposing a charge on Revenue may not be moved save by a member of the Government or a Minister of State. On that basis the amendments are deemed out of order.

It could be cheaper.

That may well be, but it could be dearer. That is the point.

Amendments Nos. 17 and 18 not moved.
Section 2, as amended, agreed to.
Section 3 agreed to.
Progress reported; Committee to sit again.
The select committee adjourned at 5.25 p.m. until 2.30 p.m. on Wednesday, 30 April 2008.