Select Committee on Legislation and Security debate -
Wednesday, 5 Oct 1994

SECTION 1.

Minister for Justice (Mrs. Geoghegan-Quinn)

I move amendment No. 1:

In page 3, subsection (1), line 35, after "19" to insert "(5)".

I support what Deputy Mitchell said and, perhaps, we could consider his point.

Section 1 (1) defines a convention country as a country other than the State which is, for the time being, designated in an order under section 19, which is concerned with the Dublin Convention. The purpose of the amendment is to make it clear that the orders in question are designation orders made under section 19 (5) and not orders made under any other subsection in that section. It is merely a drafting change and it does not affect the substance of the Bill.

Amendment agreed to.

Chairman

Amendments Nos. 2, 3, 4 and 4a are related and may be discussed together.

Mr. Rabbitte

I move amendment No. 2:

In page 4, subsection (1), to delete lines 17 and 18 and substitute "(b) his or her parents, or".

This amendment is self-explanatory. Its purpose is to delete part of paragraph (b), particularly the words "in case the applicant is under the age of 18 years and is not married". The amendment, in Deputy Gilmore's name, seeks to delete those lines and to substitute "his or her parents, or". It is common knowledge that the family of a declared refugee, irrespective of the age of the applicant or family members, is liable to persecution because the person is a refugee. If one seeks asylum in this jurisdiction, for example, that fact alone is sufficient to expose family members to persecution, irrespective of age. I do not understand why there is an age limit.

It disregards knowledge of the practice in many Third World countries, in particular, where people get married at a young age. A woman or girl may get married as young as 12 or 13 years of age, but is still under the parents' protection. I urge the Minister to remove the qualification requiring the applicant to be under the age of 18 and to leave it at "his or her parents", as the latter part of the Bill suggests.

Mr. G. Mitchell

Section 1 is an interpretation section. I am concerned about the general interpretation of "member of the family". I recognise that the Bill, as drafted, covers most nuclear families. For example, if the applicant is married, it covers his or her spouse, or if the applicant is under the age of 18 and is not married, it covers his or her parents, or an unmarried child of the applicant who is under the age of 18 years. However, I foresee certain circumstances arising from another culture — and all refugees will come from another culture — where, for example, divorce is more common, where it is not uncommon to abandon children in certain environments, particularly if there has been civil war or strife, where there are step-parents, where grandparents are effectively acting as parents and where there are guardians because the child has been abandoned or cannot locate its parents as a result of civil strife. For that reason, I would like a general mechanism to allow the board, the tribunal or the Minister in exceptional circumstances to recognise other persons as being members of the family for these purposes.

It is impossible to draft the section so tightly that one could name all the relatives. Some situations involving adoptive parents, step-parents, guardians, grandparents acting as parents, etc. are more prevalent in foreign cultures than they are here. For that reason, I would like the Minister, the board or the tribunal to have the leeway to decide if someone should be incorporated as part of the family.

Ms O'Donnell

The purpose of amendment No. 4a is to give the Minister discretion to admit a further category of relatives of a refugee in respect of whom a declaration has been granted. I accept that it is fair and reasonable to have some level of restraint on the various categories that could apply under the general term of family. However, "family" as defined under the Act is much too narrow as it could, for example, exclude children other than those of a subsisting marriage. The notion of a subsisting marriage amounts to a very strict exclusion because the marriage of a divorced person who has custody of children is no longer subsisting. What would happen in the case of such children?

Another aspect would be a child who is over 18 years of age yet still dependent on and part of the family. It would be outrageous to exclude a 19 year old just because he is over the age of 18. It would be better if the Minister had discretion to admit further relatives of a refugee. That element of flexibility would exclude the possibility that this definition of the family could turn out to be a cruel weapon against the family and the applicant.

Mr. Browne (Carlow-Kilkenny)

I would ask the Minister to deal with this anomaly. Apart from an unmarried child who is under the age of 18, there may also be unmarried children of 19 or 20 or divorced persons. The Minister should accept something that will show we have respect for family units. Some people may be under threat at home while their parents have already left and they may want to get out for several reasons. We should be the last State in the world to stop them coming to join their families.

Mrs. Geoghegan-Quinn

The definition of a member of the family has to be read in conjunction with section 16 (4) which extends an entitlement to a declaration of refugee status to members of the family of a person recognised as a refugee. That is an absolute right. In accordance with international practice, it is being extended to the immediate members of the family of the refugee who are so closely linked to that person that no consideration of their individual situation is necessary. They will be granted refugee status solely by virtue of their immediate relationship in a family unit with the refugee. The purpose of this provision is to ensure that the family unit can be maintained and it is a recognition of the important principle of the unity of the family. The provision is an application of the conclusions of the executive committee of the UNHCR on family reunification.

I have difficulty with the amendments put forward by Deputy Gilmore because they would automatically confer refugee status on certain relatives of a refugee irrespective of existing links with the refugee and indeed their individual circumstances. Those relatives might, for example, have been living apart from the refugee for many years and may never have experienced any fear of persecution. At this stage they may, in fact, be living in a safe country. Having said that, I accept that there may be particular persons who are outside the classic definition of a member of a family unit provided for in the Bill who, on humanitarian grounds, could be regarded as having exceptional reasons for that type of consideration. That seems to be the thinking behind the amendments. I accept that Deputies Mitchell and O'Donnell are saying, in effect, that the definition cannot be so broad as to include all types of relatives or people who might relationship. I equally accept their points on for example, divorced parents and those having custody of children and on step parents and, grandparents as well as the differences between our culture and other cultures.

I appreciate that they are saying the Bill should give discretion to the Minister. While I cannot say I am prepared today to accept the amendments moved, I see the necessity to amend this section between now and Report Stage. If the Deputies accept my word on that, I will consider proposing an appropriate amendment perhaps similar to those moved by the Deputies, an amalgam or something entirely different. I would like to discuss with the draftsman the possibility of drafting an amendment that would take into account the points made while not extending the section to such an extent that it would include all kinds of people that we might not necessarily wish to have or that the UNHCR would not approve of us having.

Mr. G. Mitchell

I am happy enough to withdraw my amendment on that undertaking. We can reach agreement on that.

Mr. Rabbitte

The Minister's resistance seems to be based on the fact that under section 16 (4) we are required to admit a family member and that definition would spring from this interpretation section. I would like to put to the Minister the argument in respect of the qualification in subsection (c) of an unmarried child. It seems this does not have any regard for the customs and mores of many countries from which refugees may flee to seek asylum here. In such countries, someone of what would be considered a very young age in this jurisdiction, could be a married person. That does not mean they would be removed from the protection of the family and it would be regarded as normal in that country. To expressly provide for their exclusion could have damaging consequences in certain circumstances.

Mrs. Geoghegan-Quinn

What I have been saying in response to Deputy Mitchell's and Deputy O'Donnell's points takes account of what Deputy Rabbitte is raising which is that there may well be exceptional circumstance which we have not taken into account now, which I would like to examine between now and Report Stage with a view to tabling an amendment. I feel that an amendment is required to this section giving the Minister discretion without broadening it so much that it makes a nonsense of it. If the committee is prepared to accept that, between now and Report Stage, we can take into account the point Deputy Rabbitte raised in relation to children and families, the family unit and how extended it is in other cultures.

Mr. Rabbitte

If the Minister comes back with something on Report Stage I withdraw my amendments in that regard.

Amendment, by leave, withdrawn.

Amendments Nos. 3, 4 and 4a not moved.

Section 1, as amended, agreed to.