Amendment No. 9 is cognate to amendment No. 5, while amendment No. 6 is an alternative. Amendment No. 10 is alternative to amendment No. 9 and all may be discussed together. Is that agreed? Agreed.
I move amendment No. 5:
In page 6, subsection (1), lines 26 and 27, to delete ", in the opinion of the Minister,".
I already referred to the notion of the Minister's opinion being included in both subsections. The Minister is given discretion, and Deputy Browne ably argued that the Minister should have such discretion. However, the Bill already establishes a decision making procedure and an appeals system. In those circumstances, why is it necessary for the Minister to retain a discretionary role in this or any other aspect of the determination process? It does not give an asylum seeker the absolute protection intended in the convention. Will the Minister explain why these words are included in both subsections?
I take a different view on this matter. In the context of the Bill, I accept that a residual discretionary power rests with the Minister. Although new structures will be established, ultimate power still rests with the Minister. After all the procedures, decisions regarding who should be expelled or returned or given refugee status must be made by the Minister.
I am concerned about subsection (1), lines 26 and 27. Both Amnesty International and the Irish Refugee Council argued that the reference to the Minister should be deleted, although for different reasons. The contributions of the voluntary or non governmental organisations have been fantastic in terms of forming the committee's deliberations. Amnesty International states the Minister should not be introduced to the process because the decision should be made by the commissioner or the appeal board. However, I am not sure that is the case because the Minister will decide who to expel or return.
Under the Bill, the function of the commissioner, tribunal or appeal board is to recommend on the recognition of refugee status. This is not the same as deciding whether to expel or return somebody. The 1951 convention does not mention the Minister because it leaves it to the contracting state to specify its procedures for expulsion or return. I understand the difficulty the Irish Refugee Council points out in its argument that the phrase "the opinion of the Minister" introduces a discretion which the absolute character of the prohibition on refoulement in international law and the 1951 convention does not permit.
The purpose of my amendment is to place an objective test on the use of the Minister's discretion rather than rule out the subjective opinion of the Minister. As it stands, the opinion of the Minister is a ministerial subjective test and no objectivity is imposed on it. This is why my amendment seeks to delete ", in the opinion of the Minister," and substitute "where it is likely,". It takes a slightly different approach from Deputy O'Donoghue's amendment but it addresses the same worry about using the subjective test of a Minister in this matter.
Without repeating my earlier point that people should trust that Ministers will hold political views about countries, Deputy O'Donnell's amendment seeks to insert the words "where it is likely". Who will decide it is likely? Somebody must take a decision in that instance also. In the Minister's view, where it is likely, she can consult others but somebody must make a decision. If it comes to making a decision about a political situation in a given country, the Minister will be in the best position to judge that aspect.
The more objective test is where it is likely in the Minister's opinion.
The effect of the amendments would be to leave the Bill silent on the question of the responsibility for deciding whether the expulsion of a person from the State to a country would threaten his life or freedom for convention reasons. I am not sure the Bill would be improved by removing the identification of where the responsibility lies.
This section represents a substantial advance with the inclusion in Irish law of the non-refoulement principle, not just for refugees but for all immigrants. It is necessary to identify where the responsibility lies. The declaration of principle applies across all areas of immigration law and not just in the narrow confines of the Bill. This section is a major advance in that it applies to more than just refugees; it refers to a person or persons.
The principle applies to all admissions and expulsions for which the Minister is directly or ultimately responsible. Accordingly, the provisions of section 5 clearly place responsibility on the Minister to ensure that a person is not expelled to a country where his or her life or freedom would be threatened. This is appropriate as such an important obligation must lie at the highest level of responsibility.
In exercising such power, it is right that the Minister should be charged with determining whether the person in question would be in danger if sent to the frontiers of a particular country. Where that is the case an alternative country must be found and if that is not possible, the person in question must be allowed to remain in the State.
In such circumstances, the Minister for Justice is best placed to judge the situation. She will know the circumstances of the person to be deported and in consultation with the Minister for Foreign Affairs and the UNHCR, she can get advice on what danger, if any, exists. I am sure there is no suggestion in the amendment that the Minister would not exercise the duty imposed by section 5 to the highest standards required of him or her. The powers of the Minister under this section are reviewable by the courts.
Section 5, as drafted, is an important safeguard for all non-nationals. Changing the section and not placing an obligation on any particular person or body to ensure that a person is not sent to a country where his or her life or freedom could be threatened weakens the guarantee the section provides and I know that is not the intention of the proposed amendments. However, it is better to fix this responsibility on the Minister rather than leave it as an obligation without charging anyone with responsibility for determining in what circumstances a person's life or freedom might be at stake.
Amendments Nos. 7 and 8 in the name of Deputy O'Donnell are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 7:
In page 6, subsection (1), line 27, to delete "life or freedom" and substitute "life, freedom or well-being".
The possibility of an assault, including a sexual assault, is related to a person's well-being rather than their freedom. Accordingly, I propose to introduce the term "well-being" which would also cover a threat to a person's property. This term is particularly important where racial persecution is involved. "Well-being" is a broader term than physical freedom and it would cover other matters which do not impinge on a person's physical freedom but which would be damaging and threatening to a person if they were returned. It would cover the confiscation of a person's property. Does the Minister believe that physical freedom is sufficient? She is addressing a person's sense of liberty and I ask to her consider broadening that concept to include the term "well-being".
The Deputy seeks to extend the principle enshrined in the section to exclude the removal of a person from the State on the basis that their well-being could be threatened. Not only does this extension interfere with the wording in Article 33 of the UN Convention and which could weaken a well established principle of refugee law, but it introduces a term which could be open to broad interpretation and which would be outside the scope of the Bill. For instance, a convicted criminal could not be returned to a country where he or she may face a long term of imprisonment because this could affect his or her well-being.
I sympathise with the Deputy's points but I do not believe they would be served by the amendment. The Minister, when choosing to exercise this power, would be very closely advised on what is appropriate. If there were particular circumstances affecting the life or freedom of the refugee the case would be strongly put. We must remember that a person would have the right to go to court to appeal a decision. I believe the section, as drafted, is appropriate.
Amendment No. 12 is an alternative to amendment No. 11 and amendment No. 43 is an alternative to amendment No. 42. Amendments Nos. 11, 12, 15, 16, 42, 43, 48, 52, 58, and 82 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 11:
In page 7, subsection (1)(b), lines 14 and 15, to delete, "where possible in a language that the person understands," and substitute "or, where necessary, cause such person to be informed in a language that he or she understands,".
This amendment will ensure that interpreters are used where necessary rather than where possible. Section 8 (1)(a) (i) states: "shall be interviewed by an immigration officer as soon as practicable after such arrival, and". I would argue that it is not practicable to interview someone in a language they do not understand. Rather than use interpreters where possible, they should be available when necessary.
There is a simple logic behind these amendments. For the most part, they relate to section 8 (1)(b) which states: "The immigration officer concerned shall inform a person referred to in paragraph (a), where possible in a language that the person understands, that he or she may apply under that paragraph for a declaration." There would be little point advising a refugee of his or her rights in a language which she or he did not understand. In such circumstances, there is no necessity for the words "where possible", which are to a large extent superfluous.
I accept that by removing the words "where possible" in this and other sections dealing with the question of interpretation, it would place a stringent onus on the State to ensure that the refugee was advised of his or her rights in a language which he or she could understand. However, it is an onus which the State can carry. We are not suggesting that a person be picked out of the sky to interpret, but it is within the bounds of the relevant Department to ensure that an interpreter can be found in a short period to explain the situation to the asylum seeker.
All the amendments relate to questions of interpretation. I am attempting to remove the requirement "where possible" and to insist that interpretation facilities be provided, and at an early time.
The principle is the same in the amendments in my name.
I support the spirit of the views expressed. Whatever else we do, we should ensure that refugees understand what is being said to them. There must be nothing more frightening to be a refugee in a country where one does not understand what anybody says. In such circumstances one wants to find somebody speaking one's own language. There may always be refugees speaking minority languages and, in fairness, a way should be found to communicate with them. I do not know what difficulties may arise if the term "where possible" were to be removed.
One may have to deal with a weird Arabian dialect that has not been encountered before.
There are practicalities involved here. There will be a difficulty in finding, at short notice, those who may be available to speak an unfamiliar language. However, to successfully undertake interviews with people in these situations translations would be required. In this respect I fail to understand the relevancy of the term "were possible". How would it be possible to have a successful interview with a refugee, especially where an obscure language is involved? If the interview were to be successful and productive, one would have to have an interpreter. The term "where possible" does not, therefore, make sense. Why is it placed in this context?
I was at the airport in Amsterdam last week in transit to Dublin after a Council of Europe meeting. Two people were sitting opposite who had no means of communication for over two and a half hours, either between each other or with anybody around them. It must have been strange for them. To then have to go through the normal travel process, with which most people have difficulty even with the best language skills available, and encounter the complex series of arrangements at an airport, such as Dublin Airport, not having experienced air travel before, puts one at serious risk of being unable to deal with the environment, never mind to undertake any kind of reasonable exercise in communications in an obscure language.
In these circumstances it is essential to ensure that somebody could speak the required language in order to ascertain the well-being of the travellers and then to proceed to the interview. Given this, it is difficult to understand where the term "where possible" would be used. It would appear to be essential to have an interpreter to deal with those travelling at that point, and later.
I accept the spirit in which the amendments are put forward. At issue in all of them is the provision of interpretation or translation services. Throughout the Bill, the obligation imposed on the authorities is to provide such services where necessary and possible, or where possible as appropriate. The intention is that interpretation or translation facilities will be provided as a matter of course, and the obligation on the authorities to provide such facilities should be pitched in the Bill at the highest possible level.
Deputies may recall that the corresponding wording in the Refugee Bill, 1994, was "where necessary and practicable". When the Bill was considered by the committee last year, amendments were put down because Deputies were unhappy with the words "where practicable", as they rightly wanted to ensure that there should be no doubt that such essential facilities would be provided.
The wording of the provision sought to put a very high onus, but not an absolute onus, on the authorities to provided interpretation on the basis that there was, for example, the possibility that a person could refuse to co-operate and pretend not to speak any known language. However, because what Deputies wished to achieve was essentially the same as what the Bill was intended to achieve, it was agreed that the provision would be re-examined.
The parliamentary draftsman was consulted and asked to provide a wording which would put the highest possible onus on the authorities to provide interpretation, but which would allow for the rare and exceptional cases where a person refuses to co-operate with the authorities. The advice I received was that the words "where possible" puts the highest possible onus on the authorities in this respect.
I hope the committee will see that some qualification is necessary to ensure against the possibility that unscrupulous applicants could abuse the system by pretending to speak obscure dialects for which no interpreter could be found. Equally, I hope that the committee can accept the advice of the parliamentary draftsman, and my assurance, that all possible efforts will be made to ensure that interpretation facilities are available, and that the practice will be to provide such interpreters as a matter of routine.
There is a practical problem here. Over the past five years we have had applications for asylum from people from 52 different countries, including Armenia, Afghanistan, Albania, Algeria, Angola, Bosnia, Belarus, Bulgaria, Burundi, Cameroon, Chad, China, Congo, Croatia, Cuba and Ethiopia. Ethiopia has 20 major languages.
This gives rise to a difficult situation in practice in seeking to meet the requirements of the refugee. At present we have applications forms in six relevant languages — Arabic, French, Spanish, Russian, Turkish and Romanian. We are currently in the process of drafting information leaflets for refugees which will be in all those languages. I respect the views expressed regarding the difficulties for people when they arrive and are not familiar with English.
While I cannot accept deletion of the words "where possible", Deputy O'Donnell has suggested an alternative wording in amendments No. 42. I would be prepared to consider this and any other wording which Deputy O'Donoghue, or any other Deputy may wish to put forward in consultation with the parliamentary draftsman. I ask Deputies to let me have the alternative wordings before Report Stage.
I withdraw my amendment.
I take the Minister's advice that the term "where possible" constitutes the highest possible level of safeguard, and that interpreters will be provided. With regard to her point on the alternative use of the words "where necessary, cause him or her to be informed in a language that the person understands", I will consult with the Minister's office before Report Stage.
Amendments Nos. 13 and 21 are related and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 13:
In page 7, subsection (1) (c), line 24, after "notice." to insert "Such notice shall specify that the person is entitled to consult a solicitor and to consult the High Commissioner, or a person or body within the State nominated by the High Commissioner.".
This amendment relates to persons who have got past the immigration office, legitimately or otherwise, and subsequently apply for refugee status. My proposal is that it is surely more sensible that the applicant be informed of the right to consult with a solicitor or the High Commissioner before the interview rather than during it. However, the requirement that the person be so informed at the interview as well should be retained. This is self-explanatory.
I accept the principle of this amendment and agree that where a person already within the State applies to the Minister for recognition as a refugee, the notice arranging for the interview with an immigration officer should explain the applicant's right of consultation. I have some difficulty of a drafting nature with the duplication between the Deputy's amendment and subsection (3) and I would like an opportunity to discuss the detail with the draftsman.
I have greater difficulty with the notion of a nominee of the UN High Commissioner for Refugees but that will be discussed later under amendment No. 19 in the Deputy's name. My understanding is that the High Commissioner does not usually delegate its protection practices and in all my discussions with that organisation it has not requested such a provision. I ask the Deputy to withdraw her amendment on the basis that I will tease the matter out between now and Report Stage.
I will withdraw amendment No. 13. May I now discuss amendment No. 21, which is taken with it?
This concerns the adjourning of the interview. Is this related to amendment No. 53c?
No, it is only related to amendment No. 13. Amendment No. 21 seeks to insert the following:
Where a person who is being interviewed pursuant to subsection (1) indicates a desire to consult the High Commissioner or the High Commissioner's nominee, the immigration officer shall assist him or her to establish contact with a solicitor, or the High Commissioner, or High Commissioner's nominee; and shall adjourn the interview for such time as is necessary for the person to so consult.
It is similar to the amendment No. 13 and concerns the same principle. I have argued on this so I will withdraw it also.
Will the Minister look at this amendment also before Report Stage?
I oppose amendment No. 21. The main purpose of this section is to set out how to deal with a person who has arrived at our frontiers — effectively, someone who lands at a sea port or airport. It gives an immigration officer at Shannon, Rosslare, etc. the job of finding out who each applicant is, where he or she comes from and what his or her intentions are. These are functions immigration officers perform under existing law every day in relation to all sorts of people coming into the ports, whether they are seeking asylum or not. There are hundreds of thousands of landings at Shannon, of which only a tiny fraction relate to asylum applications.
The only additional thing this section as it stands requires the immigration officer to do, over and above the present legal requirements, is to carry out an interview with a person who seems to indicate a wish to look for asylum. It sets out certain obligations such as the use of an interpreter where possible, to inform the potential applicant of the consultation rights set out in subsection and to pass the report of the interview to the refugee's application commissioner. It is clear this is only a preliminary step in the processing of the application, designed to ensure there is an application being made.
If there were an absolute requirement that an interview be adjourned until the High Commissioner's representative could be consulted, this could mean interviews being left unfinished for periods of several days until such a person becomes available. This would be highly unsatisfactory. There would, for instance, be the question as to where the applicant should be accommodated during the adjournment and there would be little point in trying to continue with what is only an immediate first step of the process after a delay of that order. We rightly do not have detention centres at our airports and sea ports — the numbers of people committed to prison is small and the periods for which they are committed are brief.
Inherent difficulties would be posed for the administration of the system by amendment No. 21. It would have the effect of barring all further communications between potential applicant and immigration officers once a request to consult was made. To my mind, this would be unsatisfactory and unworkable and could operate in some circumstances to the disadvantage of the asylum seeker. While I accept the amendment would be less likely to have a disruptive effect on cases under subsection (1) (c) — that is, preliminary interviews conducted with asylum seekers who apply from within the country — the fact that such disruption is possible is nonetheless unacceptable. I reject the amendment on practical grounds.
I move amendment No. 14:
In page 7, subsection (1), between lines 24 and 25, to insert the following:
"(d) Without prejudice to the foregoing the immigration officer's duty shall be confined to obtaining details of the identity, nationality, passport/visa particulars, means of travel and matters appertaining thereto as may be necessary and to establish that the person referred to in paragraph (a) is seeking asylum.".
This arises from the fears of certain groups that when an individual arrives in the State misunderstandings can arise between the asylum seeker and the immigration officer. The role of the immigration officer should be defined with greater clarity in the Bill. Accordingly I propose this amendment, setting out what the immigration officer's duty at the point of entry should be, which would be to confine him or her to obtaining "details of the identity, nationality, passport/visa particulars, means of travel and matters appertaining thereto as may be necessary and to establish that the person referred to in paragraph (a) is seeking asylum". This paragraph is proposed without prejudice to the other provisions of the subsection, as contained in paragraphs (a), (b) and (c).
I oppose this amendment because I have a number of serious difficulties with it. I get the sense of what the Deputy seeks to address but the danger with an amendment like this, which attempts to limit the scope of an immigration officer's contact with the asylum seeker, is that this may cramp the officer's style so much that he or she may fail to elicit information essential to the claim for asylum or even information crucial to the asylum seeker's immediate welfare needs. This amendment would preclude such elementary inquiries as to a person's health, whether he or she needs food, water or beverages, or whether he or she needs medical attention.
I recently met the immigration officers in Shannon, who work closely with the welfare organisations in that area. The officers give refugees information about welfare organisations and mechanisms available to them, all of which would be precluded by this amendment. Although what the amendment seeks to do was outlined by Deputy O'Donoghue, I think it is much more destructive in relation to the positive way in which many immigration officers seek to assist applicants. Another important part of the immigration officer's job at ports is checking the security credentials of those seeking to enter. This type of amendment can seriously hamper the inquiries necessary to establish whether a person has a serious criminal record or is a threat to the safety or security of the public.
The amendment omits an important class of information — about the route taken and countries of transit — which points up a problem with what I might call the over-specific approach taken in the Deputy's amendment. It is too difficult to enshrine in legislation provisions of the level of detail proposed in this amendment without running the risk of making them either too restrictive or too widely drawn.
The best approach is to leave such matters to be dealt with by way of guidelines to immigration officers. The Department is putting the finishing touches to a revised comprehensive manual for immigration officers on all aspects of immigration, asylum and citizenship law and practice. This will be provided in readily updatable loose leaf form so that changes can quickly be conveyed to all officers and I envisage that when up and running the refugee applications commissioner contemplated by this legislation will have an active role in determining the content of future updates of this manual as they arise.
As the Minister acknowledges, it was not the purpose of the amendment to impose difficulties in the way of the asylum seeker. It was envisaged by the amendment that the details having been ascertained, the individual seeking asylum would then be sent to the commissioner as of right. Furthermore, the problem with the Minister's approach is that there is a real danger of misunderstandings arising and an unfavourable or incomplete report may be forwarded by the immigration officer which could threaten an applicant's position. However, in the light of what the Minister has said and since there does not appear to be a desirable specific amendment which can be made to deal with such a situation, I will withdraw the amendment.
Amendments Nos. 17 and 18, in the names of Deputy O'Donoghue and Deputy O'Donnell respectively, are out of order as they involve a potential charge on the Revenue.
With regard to my amendment No. 18, apart from the issue of funding, might we have an opportunity to discuss the issue of counselling?
That seems reasonable.
In fairness to Deputy O'Donoghue I will also address the question of legal aid which was raised in his amendment. I gave a commitment on Second Stage to put in place a system of legal aid for applicants for refugee status. I will give the committee an indication of the essential features of such a system as I perceive it and the steps taken so far to put it in place.
Among the essential characteristics for the scheme is independence. The scheme should be and be perceived by asylum seekers to act in their interests alone and to be not influenced by the State as an institution in the delivery of its service. The fears refugees may have of State agencies was strongly stressed by a number of the organisations dealing with the welfare of refugees. Another characteristic it should have is stability. Whatever means is finally settled upon to provide the service, it should have a lasting structure designed to ensure that in future legal aid continues to be available unaffected by changes in personnel or other such variables. It should be a quality scheme.
The best guarantee of a good service is the involvement of the UNHCR. It is important in this regard that local NGOs with an interest in the area have a similar involvement. It should be accountable. Obviously, since public moneys are to be involved it is important that controls are in place to ensure funding is not appropriated for other purposes and reasonable value is obtained by the taxpayer in providing a quality service. This is by no means an exhaustive list of qualities but they are not exclusive of each other and there is extensive interdependence and overlapping between them.
A number of possible models have been considered by the Department and we have had extensive consultations with the UNHCR's London representatives who cover Ireland as part of their responsibilities — I am pleased that one of them is with us today. We have also kept in close touch with, among others, the Irish Refugee Council which has made a number of valuable suggestions. We have put a strategy for a possible legal framework for the scheme to the Chief State Solicitor who has in turn consulted the Attorney General. Until we have received their advices I cannot offer the Deputies the precise details of the framework to be adopted. I intend to keep the Deputies informed of any developments as they arise during the passage of the Bill. I apologise that I am not in a position to give a definitive answer to the point raised by Deputy O'Donoghue. The best approach is to develop the scheme along the lines I have proposed and to implement it. We have attempted to meet all of the requirements put forward by the various bodies and I will advise the Deputies further on this matter.
As to the question of the counsellor, the purpose of the Bill is to set out the rights of refugees and the procedures to be followed in determining whether an individual is entitled to refugee status. The Bill provides that an asylum seeker has the right to consult a legal adviser in the UNHCR. I agree the welfare of an asylum seeker is important, but it does not come within the ambit of this Bill. It is not essential to the determination of an application.
Important as matters of welfare are, one will notice in the Bill does not refer to the Irish Red Cross, community welfare officers or any other bodies involved in the wide range of assistance provided to asylum seekers. The welfare of asylum seekers is a practical issue which is more properly and flexibly dealt with by way of guidelines which can be adapted to meet particular needs using the caring and counselling facilities available in the State.
I draw Deputy O'Donnell's attention to the report of an interdepartmental committee recommending a set of guidelines on the procedures for the reception of asylum seekers which is currently receiving final examination in the Department of Justice. The report provides that asylum seekers should be provided with all assistance possible, including medical and welfare assistance. One of the strongest features of our asylum system is that once somebody makes an application he is entitled to all of the social welfare, educational, housing and medical benefits to which an Irish citizen is entitled. That is an important entitlement.
The report proposes that community welfare officers should act as co-ordinators for the purpose of providing assistance to asylum seekers. This is based on experience, particularly in the Limerick area. These community welfare officers should direct asylum seekers to the appropriate State services as needs arise. Furthermore, at a recent meeting of the Joint Committee on Foreign Affairs dealing with the issue of health care and rehabilitation of traumatised refugees, the Department of Health reported to the committee that it was moving ahead on this point.
An important point is that asylum seekers are entitled to avail of the State's medical services. Our general practitioner and mental health services are reasonably well equipped to deal with emotional and psychiatric problems associated with trauma, including torture. It is not a general characteristic of asylum seekers arriving in Ireland that they are traumatised persons fleeing physical abuse, torture or imprisonment. Few, if any, raise such issues in their claims. Their claims generally feature allegations of restrictions on their rights to political views or religious beliefs or harassment by the authorities because they belong to particular ethnic groups.
Obviously, some come from very traumatised backgrounds. In my experience of dealing with both types of refugee in Ireland, the greatest number of traumatised persons is among the programme refugees.
My amendment related to the provision of free legal aid for potential refugees and asylum seekers. I am glad that the Minister of State has taken upon herself to take the initiative in this respect; it demonstrates her commitment to ensuring that this legislation is implemented fairly. I thank her for her very satisfactory reply.
I thank the Minister of State for her assurances that the Department of Health has matters in hand in relation to guidelines for the various welfare issues about which I was concerned. I note that she has tabled an amendment to section 20 in relation to the welfare of children.
Amendments Nos. 19, 60 and 86 are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 19:
In page 7, subsection (4), line 39, after "Commissioner" to insert "or a person or body within the State nominated by the High Commissioner".
The purpose of this amendment is to address the difficulty caused by the fact that the High Commissioner's representative in Ireland is based in London. If the High Commissioner nominated a person or body in Ireland, such as the Refugee Council, an independent means of assistance would be more readily available to the would-be refugee at a particularly crucial time. The amendment relates to section 8, which covers applications for declaration, and would enable the High Commissioner to delegate responsibility for that to some person in Ireland. Will the Minister of State comment on that?
In this amendment the Deputy seeks to introduce the concept of a nominated representative of the High Commissioner in the State. The High Commissioner uses the term "implementing partner" of which the Refugee Council is one. The High Commissioner is defined in section 1 as including the representative for Ireland of the High Commissioner. It is, accordingly, a matter for the High Commissioner to decide for the purposes of the Bill who that representative should be — if the High Commissioner so desires, it can be a person or body within the State. It is not only unnecessary but also inappropriate to make this amendment as it might be interpreted as suggesting that the High Commissioner should change his or her arrangements for the purposes of the Bill. As I said in relation to an earlier amendment, this matter has not be raised by the High Commissioner with us.
I accept the response of the Minister of State.
I move amendment No. 20:
In page 7, between lines 41 and 42, to insert the following subsection:
"(6) (a) Where it appears to an immigration officer that a child under the age of 18 years who has arrived at the frontiers of the State is not in the custody of any person, the immigration officer shall, as soon as practicable, so inform the health board in whose functional area the place of arrival is situate and thereupon the provisions of the Child Care Act, 1991, shall apply in relation to the child.
(b) Where it appears to the health board concerned, on the basis of information available to it, that an application for a declaration should be made by or on behalf of a child referred to in paragraph (a), the health board shall arrange for the appointment of an officer of the health board or such other person as it may determine to make an application on behalf of the child.
(c) Any costs incurred by a person under paragraph (b) other than legal costs arising from such application shall be paid by the health board concerned.
(d) The functions of a health board under paragraph (b) shall be functions of the chief executive officer of the board or a person acting as deputy chief executive officer of the board in accordance with section 13 of the Health Act, 1970.".
The purpose of this subsection is to ensure that procedures are put in place to safeguard the interests of unaccompanied children who arrive on our shores and who may be asylum seekers. This is not a phenomenon which we have experienced in Ireland to any degree. However, it is a problem which has occurred in other countries and I consider it necessary to provide accordingly for such children in this Bill.
I propose in paragraph (a) that in the case of any unaccompanied child who arrives, irrespective of whether he or she gives an indication of wishing to seek asylum, the relevant health board be notified so that the child can be given assistance within the meaning of the Child Care Act, 1991, such as custody arrangements, accommodation and so on. It has been pointed out that in some cases children from other cultures could be the subject of child marriages and, of course, marriage removes a child from the protection of the Child Care Act. However, this provision has been framed, as an exceptional measure, to ensure that even in cases of child marriages the Child Care Act will apply.
I have been advised that it may not be in the child's best interest to decide unaided on whether to apply for refugee status and that the health board should protect the child's best interest in this respect. I am, accordingly, proposing that the health board concerned should decide whether an application should be made and should appoint a person to make an application on behalf of the child. I hope that the select committee can accept this amendment.
This amendment is particularly welcome as it plugs a loophole in the existing legislation. It is fundamentally important to provide for child asylum seekers in the legislation. Giving the power to the health board to make the necessary application is the most appropriate way to deal with it.
I also welcome the amendment.