No. It has been used in previous legislation without definition and I am open to a more precise definition of it along the line of the phraseology used in the common procedures directive of the EU.
Of the three main approaches set out in the amendments before us, I regret to say the one taken by Deputy Naughten is unacceptable in almost every respect. Amendment No. 683 seeks to have me establish in my Department a branch of the social services, in effect. It is not the function of my Department to provide social services and that is why the legislation has always provided that unaccompanied minors come into the care of the Health Service Executive, HSE. The HSE is the body charged by statute in this State for the provision of social and personal services and that is its responsibility. I do not have moneys in my Vote to provide a service along the lines advocated by Deputy Naughten. I do not answer questions here for the HSE so the Deputy will have to explore other avenues in that respect. I appreciate that the exploration of those avenues can often be tortuous.
The amendment proposes that I establish in my Department a social service for children at risk. The HSE has responsibility for minors at risk generally and is obliged to protect all children in the State who are at risk. I know Deputy Naughten has expressed concerns at how the HSE has fulfilled its statutory obligations relating to a specific class of children but they are a sub-class of a wider class, namely children at risk in Ireland generally. I cannot accept the proposition that this problem should be fixed by taking measures that would result in the diffusion among a number of organisations of the resources available to deal with children at risk. Ultimately, provision is made in the Estimates for expenditure on children at risk and an allocation is made to the HSE in that respect. The HSE must assess priorities and make choices in that regard.
The effect of Deputy Naughten's proposal would be to establish yet another organisational and statutory entity; yet another State body to address this issue. It seems to me that this area is the responsibility of the HSE and I cannot see why we should break up resources and give responsibility for one part of the challenge of children at risk to an organisation with no experience and no acquired skills in the business of dealing with the needs of children at risk. Were I to propose such a step, I have no doubt I would be subjected to a barrage of criticism on the basis that I was creating a conflict of interest by giving the job of looking after the welfare of children in these cases to the same body, my Department, that is charged with responsibility for making immigration and protection decisions relating to the same children. It seems extraordinary that the function of the Department as gatekeeper of the immigration system could be confused with the function of the HSE in providing care for these children. To my mind these are very distinct functions. I cannot, therefore, accept amendments that would establish this type of social service in my Department. Such a service already exists as part of the State service; it has the experience, the trained and qualified staff and the extensive range of statutory powers that enable it to deliver the services and attention children at risk in this State need, regardless of the threat and regardless of their nationalities.
The discussion on this amendment draws attention to a feature of the phenomenon of unaccompanied minors: not all of these children are necessarily at risk, though in this legislation we deem them at risk and, therefore, admit them to care automatically. For example, Deputy Naughten referred to the position of EU nationals, who are not automatically deemed at risk when they arrive in the State unaccompanied. An unaccompanied minor arriving from outside the EU is deemed at risk and automatically taken into care on arrival in the State. Not all of these children are at risk, yet the State is obliged to provide the full care service for such children and the HSE, which provides social services, is expected to assume they are at risk. This is a legislative determination that we are entitled to make and it is the determination proposed in this Bill and I draw attention to this fact.
Deputies Naughten and McGrath tabled other amendments relating to the admission of separated children to the State and they are amendments Nos. 104, 105, 110, 114, 144, 153, 159, 160, 178 and 180. The intention of these amendments is to require an immigration officer to admit to the State a separated child and to exclude a person asserting that he or she is a separated child from offence provisions relating to unlawful entry to the State. These amendments intend to change the current approach to this matter in the Bill. The approach is the same, in effect, as the present arrangement for dealing with unaccompanied minors.
In practical terms, at present, in any case an immigration officer has concerns that a foreign national child arriving in the State may be an unaccompanied minor he or she must contact the HSE forthwith. The Bill is, like the current law, silent on whether such a child must be given entry permission because this allows the immigration officer, using expert advice from the HSE, to decide the best course for a child in particular circumstances. In many, if not most, instances the proper course may be to permit the child to enter the State. In such cases the child will be in the hands of the HSE, the body with the authority, responsibility and skilled staff to deal with a child at risk and decide what is in his or her best interests. However, there are circumstances where the best interests of a child require a refusal of entry, with the child sent straight back to where his or her parents are. This is also a form of family reunification.
Imagine a family of non-EU nationals who are intent on securing entry to Ireland and manage to smuggle a child into the State, on his or her own, aboard a carrier. The amendments proposed by the Deputies would render the State obliged to give the child entry permission, thus giving the rest of the family a basis to seek permission to travel to Ireland. If the HSE, through contacts with a similar body in the relevant jurisdiction, could establish the facts it would be in a position to recommend that the child be refused entry and returned on the next ferry or aircraft to where his or her parents wait.
I cannot accept Deputy McGrath's amendment No. 149, which excises parts of section 24, bringing the HSE into the picture. The HSE is the statutory authority of this State responsible for children in care. Once we make a legislative determination that unaccompanied minors from countries outside the EU arriving in this State require care, responsibility for them must rest with the HSE.
The amendments requiring that a separated child be given an entry permission also require that entry permission be given to a protection applicant or to a victim of trafficking. However, the Bill, as it stands, already makes it clear that a person arriving at a frontier who claims protection must be permitted to enter. This provision is spelled out in section 25(1)(b). This does not need to be spelled out again and again in the Bill; once is quite sufficient. There is a potential danger in the repetition of a provision that is already effective in its own right. The risk is of inadvertently omitting the repetition from a place in the Bill where it could otherwise have been repeated, based on the pattern of other repetitions, in which case the omission could give rise to a question of why the otherwise applicable provision should not apply in the circumstances of the omission.
The unnecessary repetition of particular provisions, however worthy their object, can lead to a real danger of statutory misconstruction of the entire statute. Likewise the Bill deals with the immigration law aspects of recovery and reflection periods of those who are thought to be victims of trafficking at section 124. I know we will consider that provision in committee and the detail of that examination must be deferred. I will listen carefully to what Deputies have to say on the substance of that section.
I cannot accept a provision that appears to give a right of entry to this State for any victim of trafficking in people, irrespective of their connection with the State. Nowhere in the international instruments dealing with this very serious phenomenon is there mention of a generalised right for victims of trafficking to claim the protection of whatever territory they find themselves in or can manage to enter. Ireland does not, in principle, owe a duty of protection to, for example, a Georgian who has undergone trafficked labour in Germany, having been smuggled there by a gang based in the Ukraine or Albania. That is a matter for the German authorities. Yet the amendments seek to equate the right of international protection for refugees with the temporary supports that a state might give to trafficking victims on its own territory.
The big danger in a proposal of this type is that it makes exceptions regarding the law on entry to the State which could give those who seek to abuse such laws wide scope to exploit them. As it is, there are serious concerns about adult foreign nationals who happen to have youthful looks using their appearance to pass themselves off as, and avail of the protections that are properly available to those under 18. We are aware of the extent to which our present protection processes are subject to abuse by those who turn out to have no basis for seeking protection at all. Nothing could be easier than to turn up at a point of entry to the State demanding to be admitted on foot of assertions that one is a victim of people trafficking. It is of no value to say that will never happen; because experience shows that it can and will.
I would like to turn now to a set of amendments within this larger group that deals with how an immigration officer is to manage the business of detecting an unaccompanied minor on that child's arrival at a point of entry. These are amendments Nos. 135, 136, 138 to 143, and 147, dealing with section 24, and, in particular, subsection (1) of that section. The aim of this provision, one that I am sure is shared on all sides of the House, is to give the immigration officers sufficient scope to use their training, experience and instinct to step in where they have a concern that a child may be in the company of an inappropriate adult and is thus a possible trafficking victim. At the same time, we must ensure that the provision is not so prescriptive as to require that immigration officers intervene in circumstances where to do so would be heavy-handed and more than likely to upset the child. That can arise where a child is in the temporary care of cabin crew while moving between one parent and another. Another possibility is that of an overtired child arriving on a flight from Lanzarote having spent the whole flight arguing with its parents, who seeks to repudiate them or make loud allegations that they are not, in fact, his parents.
My officials have discussed the matter with their counterparts in the office of the Minister for Health and Children with a view to settling the terms of an appropriate provision here. Certain of the amendments proposed have real attractions and may go towards simplifying and clarifying the language. I direct Deputies' attention to amendment No. 140 in this context, although I acknowledge that Deputy Ó Snodaigh believed it did not go far enough. It is part of that same desire that we all share to achieve workable language that will allow the immigration officers at the points of entry to do their job in a way that safeguards the interests of children who may be trafficked, but at the same time is not overly prescriptive. I would like an opportunity to discuss a possible rewording of subsection (1) with both the office of the Minister for Health and Children and the Parliamentary Counsel, that would take into account the matters proposed in the amendments I have listed. Those amendments I reflect on are amendments Nos. 135, 136, 138 to 143, and 147.
While on the question of section 24, I reiterate my opposition to fettering the scope of action of the immigration officer as proposed in amendments Nos. 144, 149 and 153. I am conscious that age determination can be difficult and can take time but I do not want to confine the powers of immigration officers by requiring that entry permission be given in every case where an age determination process must be undertaken. If that can be done with reasonable expedition, in a couple of hours perhaps, there is no reason the immigration officer should postpone a decision whether to give an entry permission until the matter has been reasonably determined. If it is to be a matter of days, then the sensible course is to give the person an entry permission subject to strict conditions.
That brings me to Deputy Rabbitte's amendment No. 33, which would insert a requirement to have regard to the special position of separated children. The only doubt I have regarding the amendment is whether it puts the proposition in the right place in the Bill. Apart from that, I am minded to accept it. If the Deputy would agree to withdraw the amendment for the moment, I undertake to discuss with the Parliamentary Counsel where best it should appear in the Bill, and to bring forward an amendment on Report Stage that will achieve the substance of the Deputy's proposal.
I have not yet touched on amendment No. 134 in the names of Deputies Naughten and McGrath. This seeks to extend the provision at section 24 regarding the entry of unaccompanied minors to EU and European Economic Area nationals. I understand the issue raised by the Deputies. On the one hand, I know that child traffickers are not very particular about the nationality of the children in whom they trade. On the other hand, one must have regard for the fact that EU nationals have freedom of movement within the European area. These rights are not age-limited. A 17 year old French student arriving with his guitar on his back to busk his way around Ireland, or a 16 year old German travelling alone to join her aunt resident in Ireland for study purposes, might not like being treated as a child at risk. I would like some time to reflect further on the legal and sociological aspects of the proposal in amendment No. 134, and would ask the Deputies to consider their amendment on that basis.
To sum up, I am minded to take on the substance of amendment No. 33 and, accordingly, of No. 14. There may be merit in amendments Nos. 135, 136, 138, 139, 141, 142, 143, and 147, and I would like to consult with the draft people of the office of the Minister with responsibility for children on how best these can be taken on board. As part of that, I will withdraw amendment No. 140 when it comes up for decision later. I cannot accept the other amendments in this group.
