International Protection Bill 2015 [Seanad]: Committee Stage (Resumed) and Remaining Stages

SECTION 3

We are on amendment No. 10. Amendment No. 74 is related and both will be discussed together.

I move amendment No. 10:

In page 12, between lines 2 and 3, to insert the following:

"(5) The best interests of the child shall be a primary consideration in the application of all provisions of this Act and in the performance of all functions conferred by this Act that directly or indirectly affect children.".

One of the glaring issues throughout the Bill is the absence of references to the best interests of the child. Given that so many children currently live in the direct provision system and the Bill only recognises the best interests of the child after the protection process is completed, whether or not they have been given protection, the intention of my amendment is to ensure the best interests of the child are referenced throughout the legislation, which is vitally important, rather than in the various sections in which the reference is made. It is notable that the reference only applies to those sections as opposed to the entire Bill. For something as important as this and for vulnerable people seeking protection here, the best interests of the child should be paramount throughout the Bill, particularly given the Government's record in this regard with the children's referendum and the fact that the best interests of the child were to filter through all Government policy and legislation. That is why I have tabled the amendment.

I thank the Deputy for his contribution. There were three references to the best interests of the child in the first draft of the Bill but because of amendments such as this, on the passage of the Bill, there will be at least seven references. I do not accept the Deputy's amendment and I will outline the reasons shortly. The Bill will be better as a result of the contributions from across the House. We do not oppose the motivations behind the amendment but, unfortunately, we are dealing with technical wording that appears in legislation.

The working group on the protection process, including direct provision and supports to asylum seekers, held a similar view and one whose intent I share. However, the working group did not consider the potential impact on other areas of this Bill, including the fact it refers to the protection process and certain immigration provisions. Following extensive legal advice, I am satisfied the provisions in the legislation and our amendments ensure not only the intent of the recommendations but also fulfil the Government's policy to enable such protection to be included in our Constitution, as the Deputy has mentioned. The amendment does not legally satisfy the advice we have been given and would have an unintended consequence beyond the scope intended that we cannot resolve at this stage. We have explored all avenues to reassure all those who rightly advocate for children's rights that the Bill will ensure the best interests of the child will be a primary consideration in the protection process, ensuring the best practice, which exists in our process, will be embedded in the practices that will result from the enactment of the Bill.

A number of amendments have been tabled by the Government which will further strengthen the safeguards for children in the legislation. A provision has been inserted in section 15(4) to provide for the Child and Family Agency to include legal advice when deciding if an application should be made in respect of an unaccompanied minor. We also propose an amendment to section 27 along with an amendment to section 25. These were prompted following serious engagement with Senator van Turnhout and the Children's Rights Alliance.

Amendment No. 74 also addresses this matter. The amendment is linked to amendment No. 52, which relates to section 27. We acknowledge the engagement of the Senator on this matter. The amendment, once again, demonstrates that in all appropriate provisions of the legislation, the Government has been wiling to reassure everyone that we are fully committed to ensuring best practice in respect of children in the protection process is not only at its heart but is embedded in the work of all those who will engage with children seeking protection. The new section 25(6) states: "The best interests of the child will be a primary consideration in the application of this section". While there may have been comments that there were not sufficient references to the best interests of the child, that has been addressed and such references are much more explicit than was previously the case.

I still oppose the Minister of State's amendment, which states, "The best interests of the child will be a primary consideration in the application of this section", rather than in the application of the Bill as a whole. I fail to see what unintended consequences there could be in executing Government policy to look after the best interests of the child. Children, by definition, are vulnerable and children of refugees and asylum seekers, in particular, are even more vulnerable. As a State, we should protect the best interests of the child and that should permeate the Bill. The continuous reference to the best interests of the child being taken into account within this section is simply not good enough.

Amendment put:
The Committee divided: Tá, 38; Níl, 69.

  • Aylward, Bobby.
  • Boyd Barrett, Richard.
  • Broughan, Thomas P.
  • Calleary, Dara.
  • Collins, Joan.
  • Collins, Niall.
  • Colreavy, Michael.
  • Coppinger, Ruth.
  • Cowen, Barry.
  • Crowe, Seán.
  • Daly, Clare.
  • Doherty, Pearse.
  • Dooley, Timmy.
  • Ellis, Dessie.
  • Fitzmaurice, Michael.
  • Fleming, Tom.
  • Grealish, Noel.
  • Halligan, John.
  • Healy, Seamus.
  • Keaveney, Colm.
  • Kirk, Seamus.
  • Mac Lochlainn, Pádraig.
  • McDonald, Mary Lou.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McLellan, Sandra.
  • Murphy, Paul.
  • Ó Caoláin, Caoimhghín.
  • Ó Fearghaíl, Seán.
  • Ó Snodaigh, Aengus.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Smith, Brendan.
  • Tóibín, Peadar.
  • Troy, Robert.
  • Wallace, Mick.

Níl

  • Barry, Tom.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Coffey, Paudie.
  • Collins, Áine.
  • Conaghan, Michael.
  • Connaughton, Paul J.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Creed, Michael.
  • Daly, Jim.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Deering, Pat.
  • Doherty, Regina.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • Feighan, Frank.
  • Ferris, Anne.
  • Fitzpatrick, Peter.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Hayes, Tom.
  • Howlin, Brendan.
  • Humphreys, Heather.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Kehoe, Paul.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • McCarthy, Michael.
  • McGinley, Dinny.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Mulherin, Michelle.
  • Murphy, Eoghan.
  • Nash, Gerald.
  • Neville, Dan.
  • Nolan, Derek.
  • Ó Ríordáin, Aodhán.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Jan.
  • Penrose, Willie.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Rabbitte, Pat.
  • Ring, Michael.
  • Ryan, Brendan.
  • Shatter, Alan.
  • Stagg, Emmet.
  • Stanton, David.
  • Timmins, Billy.
  • Tuffy, Joanna.
  • Twomey, Liam.
  • Varadkar, Leo.
  • Walsh, Brian.
  • White, Alex.
Tellers: Tá, Deputies John Halligan and Thomas Pringle; Níl, Deputies Emmet Stagg and Paul Kehoe.
Amendment declared lost.
Section 3 agreed to.
Section 4 agreed to.
SECTION 5

Amendments Nos. 11 and 12 are related and will be discussed together by agreement.

I move amendment No. 11:

In page 12, to delete lines 20 to 23.

This is a technical amendment. The advice of Parliamentary Counsel in the Attorney General's office is that this subsection is not required.

I will deal with the amendments tabled by Deputy Mac Lochlainn, who sends his apologies for not being here but he is chairing a committee meeting and hopes to join us later. Amendment No. 12 provides that a copy of any notice or other document that is required or authorised by or under this Act to be served on or given to a person shall also be sent directly to his or her legal representative at the time of issuance of the notice. The rationale underlying this amendment is that the current provision does not clarify whether legal representatives also receive copies of decisions or notices issued to their clients. The amendment would ensure legal certainty and clarity in that it would ensure speedy access to such documentation by legal representatives to enable them act in the best interests of their clients. This is a simple amendment that would not have unintended consequences and would improve the legislation.

I support amendment No. 12. Given that many people seeking protection move around a lot and would not be in a fixed abode, it is vital that documentation such as that provided for in this amendment would be passed on to their legal representatives. Is the intent of the Minister of State's amendment, in terms of its proposed removal of subsection (2), to shorten the length of time a person would have to respond to documentation sent to him or her?

No, that is not the intent of amendment No. 11. That amendment was tabled on the advice of the Attorney General's office. I understand that the purpose of all of the amendments tabled to this Bill by Deputies is to improve the Bill from a humanitarian point of view. Were this legislation being debated anywhere else in Europe, the intent of a number of the amendments sought would be to not have as generous or humanitarian a focus as is provided for in this legislation. However, in Ireland we have political parties and representatives who are doing their best to ensure that our protection process is as humanitarian as possible. The Minister and I appreciate the motivation behind each amendment tabled. In not accepting any of the amendments, we are not in any way trying to refute or criticise the intentions of those who have tabled them.

On amendment No. 12, the Bill, as set out in section 5, already provides for the serving of documents to legal representatives, where appropriate.

What we are seeking by way of amendment No. 12 is that documents would be served directly to the person's legal representative at the time of issuance of the notice. The people about whom we are speaking in this regard are often under severe pressure and may not be used to dealing with officialdom. I cannot understand how the inclusion in legislation of a provision that would require the issue of the documents to people's legal advisers at the same time as they are served on those people would weaken the legislation. It would ensure that full knowledge of a case at a point in time would be with the legal adviser and the person concerned. I do not understand the Government's reluctance to accept this amendment.

The Minister and I are satisfied that section 5, as drafted, adequately covers the serving of documents to legal representatives, which is the motivation behind amendment No. 12.

Amendment agreed to.

Is amendment No. 12 being pressed?

I move amendment No. 12:

In page 12, between lines 23 and 24, to insert the following:

"(3) A copy of any notice or other document that is required or authorised by or under this Act to be served on or given to a person shall also be sent directly to his or her legal representative at the time of issuing the notice.".

Amendment put and declared lost.
Section 5, as amended, agreed to.
Section 6 agreed to.
SECTION 7

Amendments Nos. 13, 128, 131, 132, 143, 144 and 147 are related and will be discussed together by agreement.

I move amendment No. 13:

In page 13, line 25, after "violence" where it secondly occurs to insert "and acts of domestic violence".

This amendment proposes the insertion after the word "violence", where it secondly occurs, the words "and acts of domestic violence". This would ensure that persons suffering from domestic violence have clarity with regard to their rights in terms of protection. Amendment No. 128 states: "In page 54, line 28, after "be" to insert "unless the person ceases to be a family member because of domestic violence".". The rationale behind this amendment is that partners of applicants given permission to reside in the State are often fearful of reporting domestic abuse for fear of losing their right to remain in the State as a family member. This amendment would allow such person to report domestic violence and not lose his or her permission to reside in the State. The Minister of State mentioned that many of the amendments tabled are humanitarian. This amendment is not only humanitarian but necessary so that people will not be afraid to report domestic violence.

Amendment No. 131 states: "In page 56, line 12, after "subsist" to insert ", unless the marriage or civil partnership ceases to subsist because of domestic violence". This amendment provides for an exemption in cases where victims of domestic violence would otherwise be reluctant to report abuse for fear of losing their refugee status and adds clarity to the current situation with regard to domestic violence being a factor in defining a vulnerable person.

Amendment No. 143 states: "In page 57, line 25, after "subsist" to insert "unless the marriage or civil partnership ceases to subsist because of domestic violence".".

The purpose of this amendment is to ensure that due regard is had to persons subjected to domestic violence specifically.

The next amendment in the name of Deputy Mac Lochlainn, amendment No. 147 states, "In page 58, line 4, after “violence” to insert “including domestic violence”. The same rationale applies, which is to ensure that due regard is had to persons subjected to domestic violence specifically. All these amendments are intended to ensure people will not be afraid the reporting of domestic violence will have adverse consequences for them.

I support these amendments. It is hard to figure out why amendments such as these have to be tabled. The tenet of the Bill appears to be that if a marriage breaks down or ceases to exist after family reunification, those who have come here to be reunited with family will lose their rights to residency. This is bizarre. It is supposed to be a humanitarian system which is concerned with protection and allows family reunification. This is a recognised international standard but we are telling refugees they are welcome to come here and stay provided they remain married, even where the relationship is abusive. With the best will in the world, a relationship might break down. Irish citizens are entitled to move on and create new lives for themselves but the families of refugees and those who have obtained international protection will be obliged to stay in dead relationships. It is absolutely crazy.

These amendments deal primarily with the issue of domestic violence. I will deal with the amendments one by one. I cannot agree to amendments Nos. 13 and 14. The section in the Bill is in line with the EU qualifications directive and the list contained in section 7 of the Bill is not an exhaustive or limited one. I cannot agree to amendment No. 128 which relates to permission given to family members of qualified persons. The category of person referred to in the proposed amendments has other remedies available to him or her, either by changing the residency permission or under the Immigration Act 1999. Amendment No. 131 relates to permissions given to family members of qualified persons. Again, the category of person referred to in the proposed amendments has other remedies available to him or her, either by changing the residency permission or under the Immigration Act 1999. I, therefore, cannot agree to the amendment. The same issue and reasons apply in terms of amendment No. 132 as apply to amendment No. 131. Similar answers apply to amendments Nos. 143 and 144. I cannot agree to amendment No. 147. The list contained in the section is not exhaustive. Other forms of violence or abuse will be taken into account when dealing with international protection applications from vulnerable persons. Section 7(2)(a) defines acts which may amount to acts of persecution as including "acts of physical or mental violence, including acts of sexual violence". These can be used to establish an entitlement to protection need.

In respect of the Minister of State's response, what we are saying to family members of someone who has international protection is that if the marriage breaks down, they have to apply for a visa for a long-stay permission or something like it under the Immigration Act 1999. Should they apply before the marriage breaks down or afterwards? Should they apply before they leave the abusive relationship or afterwards? Will those factors be part of the decision-making process under the Immigration Act?

If someone had been offered protection under our system and the relationship breaks down with resulting separation or divorce proceedings, this does not mean someone would have to automatically leave the State. The individual could apply to change his or her residency permission under the Immigration Act. While it may appear that such protections are no longer afforded to the individual, avenues are available under the Act which the person can pursue. I consider this reasonable.

Did the Minister of State say that some of these are in line with EU policy or EU legislation?

A couple of things strike me. The first is that it was not worth Deputy Pádraig Mac Lochlainn's time submitting amendments. It is clear they will not be accepted. That is probably a result of an effort to get this Bill passed before we break for Christmas.

I have a second, more important point. If an Irish citizen was afraid to report acts of domestic violence but had to go through the hoops described, we would be banging our fists on counters in protest. It would not be acceptable in the case of an Irish citizen nor should it be acceptable for vulnerable people coming to this country as refugees.

I understand the fear that exists. The fear is that there might be sham marriages. People might come in pretending to be married and then, lo and behold, they separate. There is a different way to deal with that issue and that is what should happen rather than putting impediments and bureaucracy in the way of a partner who is the victim of domestic violence. I urge the Minister of State to reconsider these simple amendments. I do not think there will be any unforeseen consequences arising from the amendments but they would add much humanity to the Bill and much understanding to the pressurised situations refugees can find themselves in.

I have already outlined my reasons for not accepting the amendments, although I understand the intent behind them. The Deputy's suggestion that it is a waste of time to table amendments does not stand up to scrutiny. Amendment No. 74, which has yet to be voted on but has already been discussed, on the best interests of the child principle is based on an amendment tabled by an Independent Senator in the Seanad. A number of amendments tabled by the Deputy's party are also being accepted by Government and I hope we will reach them today.

Section 7 agreed to.

Amendment put and declared lost.
SECTION 8

Amendments No. 14, 77 and 78 are related and will be discussed together.

I move amendment No. 14:

In page 15, between lines 3 and 4, to insert the following:

“(c) membership of a particular social group including membership of a trade union.”.

The rationale underlying this amendment is that it reinstates the current position which is that a trade union falls within the definition of "particular social group" under the 1951 Refugee Convention. For the sake of legal certainty and consistency in approach, it is recommended that the provision would be retained in the 2015 Bill.

I cannot accept amendment No. 14 as the list provided for in the Bill is not exhaustive. I note there may be a suspicion that the list is an absolute and limited list but that is not the case. The list is not exhaustive and it is in line with the European Union asylum qualification directive. This is already encompassed within the text of the Bill and there is no need to prescribe it separately.

Those in favour of amendment No. 14 being made-----

I wish to discuss amendment No. 77.

I noted that amendments Nos. 14, 77 and 78 were to be discussed together, which is why I was moving on.

I am happy to discuss the amendments individually.

I misunderstood the situation.

Amendments Nos. 77 and 78 are being discussed with amendment No. 14.

I also wish to speak to amendment No. 77 which reads as follows:

In page 34, line 19, after “repeated” to insert the following:

“but compelling reasons arising out of previous persecution or serious harm alone may nevertheless warrant a determination that the applicant is eligible for protection”.

The rationale behind the amendment is that a provision under section 5(2) of SI 518, the European Communities (Eligibility for Protection) Regulations, provides for this exception where a person may be so traumatised or have experienced such horrendous persecution in the past that it was deemed inhumane to send him or her back, even if objectively there were good reasons to believe that such persecution or serious harm would not be repeated. This is good and humane practice which should be maintained in the context of the future protection system.

Amendment No. 77 was tabled by Fianna Fáil, Sinn Féin and Deputy Boyd Barrett and again, I cannot agree to this amendment. The wording of this section is taken from Article 4.1 of the recast qualification directive which does not include a provision along the lines of the proposed amendment. Indeed, accepting this amendment may lead to a person being granted refugee status who does not meet the definition of a refugee as outlined in the Geneva Convention.

Amendment put and declared lost.
Section 8 agreed to.
Sections 9 to 12, inclusive, agreed to.
SECTION 13

Amendment No. 15 in the name of Deputy Pádraig Mac Lochlainn has been ruled out of order because of a potential charge on the Exchequer.

Had he been here, Deputy Mac Lochlainn would have strongly defended his amendment.

Amendment No. 15 not moved.
Section 13 agreed to.
SECTION 14

Amendments Nos. 16 to 19, inclusive, 72 to 74, inclusive, and 76 are related and will be discussed together.

I move amendment No. 16:

In page 18, line 8, to delete “that” and substitute “or when a person self-identifies that they are”.

The rationale underlying this amendment is that given the important ramifications if a person is determined to be an adult, it is imperative that this decision is reached in a cautious manner and on the guidance of other actors, including the Child and Family Agency, as opposed to just on the basis of one officer's subjective opinion. When a person presents as a child it is imperative that he or she is treated as such. This also reflects the principal of the right to be heard under Article 12 of the Convention on the Rights of the Child, CRC. In case of doubt, the person should be treated as being under 18 until such time as there is sufficient evidence to the contrary.

Amendment No. 18 reads:

In page 18, lines 10 and 11, to delete “an adult who is taking responsibility for the care and protection of the person” and substitute “the parent or legal or customary caregiver”.

As it stands, there is a lack of clarity in the Bill about whether a minor is deemed accompanied or unaccompanied. In law and in international best practice, a child is either accompanied by a parent or guardian or is an unaccompanied or separated child. Sections 14 and 15 make reference to "a responsible adult" which is not defined and does not accord with Irish law, unlike the term "guardian". This responsible adult has extensive powers enabling him or her to make an application for international protection on behalf of a potentially unaccompanied or separated child under section 15, including the power to consent to a medical examination of a child without his or her relationship to the child ever having to be established. The adult could be a friend, brother, sister or could be the child's trafficker.

Amendment No. 19 reads:

In page 18, lines 24 and 25, to delete “taking responsibility for the care and protection of the person” and substitute “the parent or legal or customary caregiver”.

The rationale behind this amendment is the same as for amendment No. 18.

Amendment No. 20 reads:

In page 18, line 29, to delete “shall be deemed to also have made” and substitute “may make”.

This clearly articulates the right of the child to make a separate application on his or her own behalf.

I wish to speak to amendment No. 17. The Bill, as it currently stands, states that "where it appears" to an officer that a person seeking to make an application for international protection is under the age of 18 but the amendment allows for a person to self identify as being a person under 18 years of age. This is vitally important because unaccompanied minors have ended up and do end up in this State. Unfortunately we have a sad history of large numbers of unaccompanied minors in the asylum system going missing within this State, never to be heard from again. I also know of two cases in the direct provision centre in Donegal where 15 and 16 year old boys were forced to live in an adult centre by the Reception and Integration Agency because the agency deemed them to be over 18 even though they were not. This was pointed out to the agency. Bizarrely, the system actually allowed them to attend secondary school but would not accept that they were children. Are we going to have a continuation of this system? I would very much like to say that it is not the case but "where it appears" to an officer that a person is under 18 is not sufficient to ensure that such a person will be treated as a child. The principle of self identification is vitally important and should be the first principle when we are dealing with children who come into this State. A final determination on age can be made at a future date but the principle of self identification is vitally important.

Amendment No. 73 provides that the age assessment procedures would only be carried out as a last resort rather than as a matter of course. These procedures, some of which may be invasive, should not be carried out unless all other avenues, including interviews and attempts to gather documentary evidence have failed to establish an individual's age. This comes back to the best interests of the child principle. Unfortunately, I cannot stand here today and assert that the immigration system will ensure that unaccompanied children who end up in this State will actually be treated as children.

I agree with Deputy Pringle that this is an important amendment. It seeks to preserve the assumption that an individual is a minor if he or she self declares thus. That is hugely important and is in keeping with international best practice which suggests that the law should automatically assume that a person is a minor if he or she is self declared as such rather than a self declared minor being forced to prove that he or she is a minor. It is up to the State or the law to prove otherwise and we should preserve that principle. It is hugely important, particularly because children can often look older than they actually are. If we declare that we believe in the best interests of the child, then we must listen to and respect what children are saying to us. If we have information to the contrary, we can use it but if not, we should accept their word. As Deputy Pringle said, the potential exists for unaccompanied minors to be assessed as adults, which would be detrimental to them. While this amendment is relatively minor, it is important.

This amendment is essential if we are to protect the rights of children. The Government is committed to Children First. The idea that children would be wrongly assessed as adults is completely unacceptable and, therefore, any self-declaration by children that they are children should be accepted unless there is evidence to the contrary. The word of the children should be accepted unless there is a reason to believe otherwise, and documentary evidence or other evidence should be looked at if there is any reason to believe it is not the case that someone is a child. However, in the first instance, we should accept the word of the child.

Before the Minister of State responds, I welcome the visitors to the Distinguished Visitors Gallery.

I will deal with the amendments one by one. Some of what we have done in the amendments is reflective of the debate in the Seanad, when Senator van Turnhout and the Children's Rights Alliance had concerns around the Bill. I will explain that it will be necessary to have two opinions of the age of a suspected minor, not one, as previously envisaged, and also that the Child and Family Agency will be automatically involved.

I cannot agree with amendments Nos. 16 and 17 as all applicants are asked for their date of birth as part of their initial interview on arrival. If the person gives a date of birth that makes them a minor, then they have self-identified as a minor, and that is the way it works. I also cannot agree with Sinn Féin's amendments Nos. 18 and 19 because there is a concern they may be too narrow. A child may be accompanied by a responsible person who is not covered in the suggested text of the amendments.

Government amendment No. 72 is a technical drafting amendment. I cannot accept amendment No. 73, which seeks to insert a provision into section 24 which deals with the examination to determine the age of an unaccompanied minor in order to provide that such examinations should only be carried out as a measure of last resort. This amendment is not necessary. Section 24(1) clearly states that an age assessment examination will only be conducted when necessary for the purposes of determining the age of an applicant for international protection. Section 24(6) also provides that the best interests of the child will be a primary consideration in the application of this section.

Amendment No. 74 is a Government amendment linked to amendment No. 52, which concerns section 27. We acknowledge the input of Senator van Turnhout in regard to this matter, which relates to having two opinions rather than one and also the involvement of the Child and Family Agency.

Government amendment No. 76 arose from an engagement with the Children's Rights Alliance and Department officials. The alliance has many NGO members from the protection sector. This amendment gives a further reassurance that the best interests of the child are at the heart of the Bill and provides specific safeguards as to the assessment of the child's capacity to understand the process. Those provisions were not in the Bill previously but they will be as a result of accepting these amendments.

When somebody presents in the State and is interviewed by an international protection officer or immigration officer, they give their date of birth and, at that point, as the Minister of State suggests, section 14(2) comes into play. Is that what will happen in practice?

The legislation states at section 14(1), "Where it appears to an officer referred to in section 13 that a person seeking to make an application for international protection". I am sure that in the cases I mentioned earlier, the children gave their dates of birth to the immigration officer at the port of entry when they entered the State, but they certainly were not treated as minors. Unfortunately, we cannot accept the Minister of State's reassurance that having someone simply give their date of birth as part of the interview process will ensure they will be treated as a minor. For that reason, it is important the Bill should allow for self-declaration as a minor.

Officers will always err on the side of caution with children in age assessments, as they must because of the constitutional amendment passed and supported by all sides of this House. The issue with these amendments is that they risk adults claiming they are under 18. We have accepted Senator van Turnhout's advice on ensuring a second opinion is required and, if there is any doubt at all, the Child and Family Agency - Tusla intervenes. The officer has to err on the side of caution if there is any doubt in regard to the age of the applicant.

I understand the Minister of State's point that the legislation assumes that officers will be cautious when reaching determinations. However, that leaves an over-reliance on the individual officers concerned. What we are enshrining here is something that is contrary to the advice of any child protection agency I know of or any advocate for children's rights. We have always heard it said that we should listen to the voice of children and believe them. This is putting too much of an onus on the individual officers. There is no requirement for an officer to listen to the voice of the child. Of course, parents may try to reduce a person's age in order to have them introduced as minors. However, are we designing legislation on the assumption that people are going to tell lies or in order to make it easy for people who are coming in traumatic circumstances and trying to enter as refugees? Do we not expect that the majority of the people coming will have evidence of dates of birth and will be truthful about them? It seems the Bill flies in the face of what child protection advocates and organisations have been saying for years in this country.

The Minister of State contradicts himself in regard to self-identification. First, he said that if a minor gives a date of birth that shows they are a minor, subsection (2) automatically kicks in and Tusla will be informed. He then said the reason he is not accepting this amendment is in order to stop people declaring themselves as minors falsely to try to subvert the system. What is to stop somebody who is not a minor giving a date of birth that shows them to be a minor if the first system kicks in anyway? It does not make sense.

This brings us to the heart of the unfortunate assumption in the system that everybody who is coming here is trying to scam the system or get something they are not entitled to. That is not the presumption that should be within the Bill, which should be about how we meet our international standards in order to protect people who need protection. We should not throw out a whole system because some people might try to abuse it. If we did that, we would not have a social welfare system in this State. Unfortunately, I believe the underlying assumption throughout the Bill is that these people are really coming here to scam the system and to get something they are not entitled to. The presumption should be that these are people in need of international protection and that we have an obligation, as a State, to offer them protection. That is different from the way this has been pitched in the debate.

I have sympathy with what the Deputy has just said because that was my assumption in the past as well, namely, that the system erred by making the assumption that nobody coming here was telling the truth.

I watched a documentary recently where an individual whose job it was to assess these claims gleefully told the interviewer that he had sanctioned just two out of 600 applications for asylum status.

Part of the conversation around this Bill seems to come from the same place, from suspicion and an ungenerous spirit. Senators and Deputies have put forward amendments on the issue of children and unaccompanied minors, which is a particularly sensitive area. In regard to the first amendment in this group, if somebody arrives here and gives a date of birth that clearly identifies him or her as a minor, he or she has self-identified as a minor. The previous system, as envisaged, was that one officer would make a determination on that application. Now, as a result of amendments that have been submitted, the determination is that two officers must make a determination. If one officer makes a determination, the second officer must corroborate it. If there is any doubt and if somebody is clearly not a minor, that may be evident. If there is any doubt - for cultural or other reasons - the person is not a minor, the Child and Family Agency becomes involved. Therefore, we now have a double lock system and an external independent agency that will be involved in the process. Previously, one individual had all the power. Now this has changed and two officers must collaborate on the opinion and the Child and Family Agency may then be involved in copper-fastening the decision.

Notwithstanding what I said previously about the perception of an unsympathetic system, we must remember that asylum is a sacred status and the UNHCR has constantly reaffirmed this. We undermine that sacred status if we do not ensure those who acquire this status meet the international criteria, which is why we like to ensure these checks and balances are in the system.

Amendment put and declared lost.

I move amendment No. 17:

In page 18, line 10, after “years” to insert the following:

“or where the person self-identifies him or herself as a person who has not attained the age of 18 years,”.

Amendment put and declared lost.

I move amendment No. 18:

In page 18, lines 10 and 11, to delete “an adult who is taking responsibility for the care and protection of the person” and substitute “the parent or legal or customary caregiver”.

Amendment put and declared lost.
Section 14 agreed to.
SECTION 15

I move amendment No. 19:

In page 18, lines 24 and 25, to delete “taking responsibility for the care and protection of the person” and substitute “the parent or legal or customary caregiver”.

Amendment put and declared lost.

Amendments Nos. 20, 22 to 25, inclusive, 29, 75 and 90 are related and will be discussed together.

I move amendment No. 20:

In page 18, line 29, to delete “shall be deemed to also have made” and substitute “may make”.

I am speaking on amendments Nos. 20, 23 and 25. The rationale underlying amendment No. 20 is that it clearly articulates the right of the child to make a separate application on his or her own behalf. This is based on the concept of "listening to the child". Amendment No. 23 states: "In page 18, line 38, to delete “should” and substitute “may”." Again, this clearly articulates the right of the child to make a separate protection application on his on his or her own behalf. Amendment No. 25 states:

In page 19, between lines 9 and 10, to insert the following:

“(7) Subject to sections 21 and 22, a person under the age of 18 and who is at the frontier of the State or who is in the State (whether lawfully or unlawfully) may make an application for international protection on his or her own behalf.”.

Again, this amendment has the same rationale.

Am I to understand that if a 16 year old arrives in a container into Rosslare Port, he or she cannot apply for asylum because he or she is unaccompanied by an adult, although a person under the age of 18 at a border of the State or in the State may make an application for international protection on his or her own behalf, subject to sections 21 and 22? Does the current legislation allow for someone who is 16 or under to make an application on his or her own behalf?

If a 16 year old arrives in the manner articulated - I am sure that can and has happened - the determination on that situation is made by the protection officer with Tusla, the Child and Family Agency. That is how that situation is dealt with. There is no suggestion that individual would not be entertained or that an application would not be processed.

The amendments in this grouping deal with applications for international protection. I am not accepting amendment No. 20, as a provision is included to stop applicants making claims on behalf of their children in their own right, after their own cases have been completed, in an effort to frustrate the process and delay their removal from the State. Amendment No. 22 is a Government amendment. It is a technical amendment which adds a comma. I cannot accept amendment No. 23 as it would weaken the provision and would not be in the best interest of the child. Amendment No. 24 is a Government amendment which further amends and clarifies the information required to be provided by an applicant when making his or her application, which may have a bearing on other matters to be considered by the Minister for Justice and Equality as appropriate at any later stage.

I am not agreeing to amendment No. 25, as a person arriving at the frontier of the State who is an unaccompanied minor will be referred to the Child and Family Agency, which will decide what is in the best interest of the child. The Child and Family Agency will make a decision on behalf of the child, based on the information and legal advice available to it. I am not agreeing to amendment No. 29, as the existing provision adequately balances the needs of the State and the circumstances of the individual and current practice takes account of personal circumstances.

Amendment No. 75 is a technical Government amendment. I have already spoken on amendment No. 76 in the context of the interaction with the Children's Rights Alliance. Amendment No. 90 is a Government amendment which clarifies that an application for international protection may be withdrawn by the applicant at any time prior to the preparation of the report under section 38.

Amendment put and declared lost.

Amendment No. 21 has been ruled out of order as it involves a potential charge on the Exchequer.

Amendment No. 21 not moved.

I move amendment No. 22:

In page 18, line 37, to delete “legal advice available to it” and substitute “legal advice, available to it”.

Amendment agreed to.

I move amendment No. 23:

In page 18, line 38, to delete "should" and substitute "may".

Amendment put and declared lost.

I move amendment No. 24:

In page 19, to delete lines 4 and 5 and substitute the following:

"(5) An application for international protection shall be made in the prescribed form and shall include—

(a) all details of the grounds for the application, and

(b) all information that would, in the event that section 48, 49, 55 or 56 were to apply to the applicant, be relevant to the decision of the Minister under the section concerned.".

Amendment put and declared carried.

I move amendment No. 25:

In page 19, between lines 9 and 10, to insert the following:

"(7) Subject to sections 21 and 22, a person under the age of 18 and who is at the frontier of the State or who is in the State (whether lawfully or unlawfully) may make an application for international protection on his or her own behalf.".

Amendment put and declared lost.
Section 15, as amended, agreed to.
SECTION 16

Amendments Nos. 26, 102 and 102a are related. Amendments Nos. 102 and 102a are logical alternatives. The amendments may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 26:

In page 19, to delete lines 19 and 20 and substitute the following:

"(b) have access to the labour market no later than 9 months from the date when the application for international protection was lodged if a first instance decision by the Tribunal has not been taken and the delay cannot be attributed to the applicant,".

I will speak to amendments Nos. 26 and 102. Section 16 outlines the conditions that attach to a permission granted to a protection applicant while the applicant remains in the State. Section 16(3)(b) places an outright prohibition on the protection applicants seeking, entering or being in employment. Ireland is now the only country in the European Union, bar Lithuania, that has a blanket ban on protection applicants entering the workplace. The impact of this on protection applicants is well documented by the Irish Immigrant Support Centre, NASC, protection applicants and other non-governmental organisations in the field. It has formed part of the public discourse on our protection system in recent months, with the lifting of the ban receiving wide public support

Importantly, the working group on the protection process in direct provision recommended that protection applicants be granted the right to work if a decision on their application was not received within nine months. NASC is deeply concerned that despite this, the prohibition on the right to work is restated in the current draft Bill. It also recommends in the strongest possible terms that protection applicants should be given access to the labour market, with section 16(3)(b) being removed and replaced with a provision from Article 5 of the reception conditions directive, granting qualified or limited access to the labour market.

I will speak to amendment No. 102, which basically has the same effect as Deputy Niall Collins's amendment, except it does not allow blame to be put on the applicant. The Minister of State will probably indicate in response that the intention of the Bill is that all decisions will be made within six months so this does not arise. Seeing is believing and I certainly do not believe it. I would very much like to be in a position where all decisions would be made within six months but no extra resources will be made available within the system to process applications. The system cannot deal with the people it has now but that argument can be turned around by blaming the applicants and saying they use the courts system and everything else to slow down the process.

I put down a Private Member's motion a while back and at that stage the Minister of State probably echoed the working group's recommendation that people should have access to the labour market after a certain period if their application has not been decided. It is a basic principle that makes sense. It would be great if the amendment is accepted and all applications would be decided within six months as it would mean that this element would never have to be used. There cannot be any unintended consequences of this amendment because its provisions will never be used if the Government's logic is correct. Everything will be done and dusted three months before it would be needed.

The last point made by Deputy Pringle is certainly on the money. The Minister of State has nothing to fear from agreeing with the amendment if he is confident everything will be processed so quickly from now on. If there is meant to be quick processing but not enough resources are put in, there is a fear that it might be more difficult to get a fair hearing. There should not be a serious argument against this amendment if the Government is intent on processing everything in six months. Most people, including the Minister of State, would agree that it is fair to say that the people in direct provision have not been treated like normal human beings. Not allowing them to work shortly after their application, and being crucified as a result, is grossly unfair and impossible for any State to defend.

The inhuman way some of these people have been treated is directly related to the fact that we have not allowed them into society for one reason or another at an early stage while the application was being processed. If the failure is on the State's side because it has not been able to process the application quickly enough, allowing the people to work is a no-brainer. It makes sense all around in terms of human rights and treating people with dignity. Anybody on the island of Ireland who is fit to work should have the opportunity to look for a job. As Deputy Pringle has stated, given the Minister of State's confidence in how everything will be processed so quickly from now on, this amendment would not interfere in the Government's thought process.

The right to work, as the Minister of State is well aware, is a fundamental demand made by asylum seekers and those who support and advocate for them. It has been for a long time. The indignity of not being allowed to work and simultaneously being accused of somehow sponging off the system, becoming a target for all sorts of racist abuse by a certain element of society, is utterly unacceptable. Asylum seekers want to contribute and they do not want to be dependent if they do not have to be. They want to contribute and work and they want the dignity that comes with it. For so many years, so many asylum seekers have been denied that, which is one of the great scandals. It is a failure to date in the asylum process.

In the best of all possible worlds, and even if the resources existed and worked absolutely smoothly, there would always be a delay. The idea that we will have a six-month process immediately after the passing of the Bill stretches credibility. Even if we reach it at some point relatively soon - Deputy Pringle has indicated there is reason to doubt that the resources exist for this - there will always be the potential for delay. Most people would say that delays are likely, as events have a way of going past the hoped for periods for processing these applications as envisaged by the Bill. The Minister of State should accept this amendment as he knows how fundamental it is. It is a big omission in the Bill.

I agree with what the amendments are trying to achieve. A total of €6 million was allocated in the budget to fast-track many applications. That is why between 60 and 80 leave to remain cases are being processed each month since publication of the working group's report. The report is being implemented.

I agree with the right to work. I accept what the Deputies are saying about the nine-month stipulation not being necessary if everybody has his or her application processed after six months, but the fundamental point about having a right to work should be acceded to by the Government. This is being done through the Cabinet social policy sub-committee. That is the mechanism through which I want to see it happen. It is not happening in the Bill, but I am not letting the issue go because, as Deputy Niall Collins said, I do not think we should be outside the European norm in this regard. The right to work is fundamental and we must vindicate it. As I said, it is not happening in the Bill, but I believe it will happen through the Cabinet sub-committee on social policy.

I am now required to put the following question in accordance with the order of the Dáil of this day: "That the amendments set down by the Minister for Justice and Equality on Committee Stage and not disposed of are hereby made to the Bill; that in respect of each of the sections undisposed of, other than sections 48 and 75, the section or, as appropriate, the section, as amended, is hereby agreed to in Committee; that Schedules 1 and 2 and the Title are hereby agreed to in Committee; that the Bill, as amended, is, accordingly, reported to the House; that Fourth Stage is hereby completed; and that the Bill is hereby passed."

Question put:
The Committee divided: Tá, 89; Níl, 31.

  • Aylward, Bobby.
  • Barry, Tom.
  • Breen, Pat.
  • Bruton, Richard.
  • Burton, Joan.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Calleary, Dara.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Coffey, Paudie.
  • Collins, Áine.
  • Collins, Niall.
  • Conaghan, Michael.
  • Connaughton, Paul J.
  • Conway, Ciara.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Cowen, Barry.
  • Creed, Michael.
  • Daly, Jim.
  • Deering, Pat.
  • Doherty, Regina.
  • Dooley, Timmy.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • Feighan, Frank.
  • Ferris, Anne.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Fleming, Sean.
  • Grealish, Noel.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Hayes, Tom.
  • Heydon, Martin.
  • Howlin, Brendan.
  • Humphreys, Heather.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Kehoe, Paul.
  • Kenny, Seán.
  • Kirk, Seamus.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • McCarthy, Michael.
  • McConalogue, Charlie.
  • McEntee, Helen.
  • McGinley, Dinny.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Martin, Micheál.
  • Mulherin, Michelle.
  • Murphy, Eoghan.
  • Nash, Gerald.
  • Neville, Dan.
  • Nolan, Derek.
  • Ó Fearghaíl, Seán.
  • Ó Ríordáin, Aodhán.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Jan.
  • Penrose, Willie.
  • Perry, John.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Ryan, Brendan.
  • Shatter, Alan.
  • Smith, Brendan.
  • Stagg, Emmet.
  • Stanton, David.
  • Troy, Robert.
  • Tuffy, Joanna.
  • Varadkar, Leo.
  • White, Alex.

Níl

  • Adams, Gerry.
  • Boyd Barrett, Richard.
  • Broughan, Thomas P.
  • Collins, Joan.
  • Colreavy, Michael.
  • Crowe, Seán.
  • Daly, Clare.
  • Doherty, Pearse.
  • Ellis, Dessie.
  • Fitzmaurice, Michael.
  • Fleming, Tom.
  • Halligan, John.
  • Healy, Seamus.
  • Higgins, Joe.
  • Mac Lochlainn, Pádraig.
  • McDonald, Mary Lou.
  • McGrath, Finian.
  • McLellan, Sandra.
  • Maloney, Eamonn.
  • Mathews, Peter.
  • Murphy, Catherine.
  • Murphy, Paul.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Shortall, Róisín.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Wallace, Mick.
Tellers: Tá, Deputies Emmet Stagg and Paul Kehoe; Níl, Deputies Clare Daly and Richard Boyd Barrett.
Question declared carried.

The Bill which is considered, by virtue of Article 20.2.2o of the Constitution, to be a Bill initiated in Dáil Éireann will now be sent to the Seanad.