Immigration, Residence and Protection Bill 2008

First Stage: 29 Jan 2008
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Ivana's Contributions

Third (Committee) Stage: 08/04/2008

Third (Committee) Stage - 08/04/08

Senator Ivana Bacik: I thank the group for such a comprehensive submission and for their attendance today. It became clear last week that this issue of children was an issue that deserved separate and specific attention in the Bill.

I note the submission from the Children's Rights Alliance stated that between 1998 and this year, 5,000 separated children have been identified as being in Ireland. This is a large number even though the numbers are decreasing and the provision needs to be there for them. What struck me most was the stark line in the Irish Refugee Council's submission that there is no improvement proposed in the Bill for the position of separated children. This is an appalling indictment of the current shape of the Bill.

There are very many specific issues but in general, what is the best way to ensure the best interests of the child are protected throughout the measures and procedures provided for in the Bill? It seems to me that one point raised frequently in the submissions was the need for an independent person to represent the child. Would provision for the appointment of a guardian ad litem answer many of the concerns, together with strengthening protections? I refer in particular to provisions such as the age assessment provisions which I raised last week. Various organisations are of the view that this would lead to de facto detention of children, even where this is not provided for in the Act. Under the current shape of the Bill, because the benefit of the doubt is not being given to the child or supposed child, immigration officers can treat the child as a adult where they have reasonable grounds for believing the child is over 18 years. This seems to me to be a very dangerous provision occurring right at the start of the child's interaction with the authorities. This would be a very dangerous provision to allow in. I refer to the section 24 provision referred to by Deputy McGrath and the idea of responsible adults. In its present incarnation the Law Society has described it as an invitation to traffickers because it does not have any criteria for establishing the identity of the responsible adult and how he or she is responsible. I understand there is provision for the health authorities to intervene at a later stage where it appears an adult is not taking care of a child. The delegates will be better acquainted with the details of the Bill, but this provision needs to be tightened in accordance with the best interests of the child and the need to ensure such children have an independent voice. I understand these are mostly older children in their late teens. Although they may have a clear voice of their own, they are still likely to require an independent voice to advocate on their behalf. Is this the main change that would answer the delegates' chief concerns?

Senator Ivana Bacik: I referred to a provision which I now understand to be outlined in section 85 of the Bill, under which the tribunal will be allowed to inform the HSE that it considers that an accompanying adult is not acting in the best interests of the minor. The child care Acts will apply to the minor from then on. It seems there is a gap. It should be noted that there is no provision, other than the section 24 provision whereby an immigration officer can ascertain whether a child who arrives at the frontier is accompanied and, if so, whether the person accompanying the child is a responsible adult, whereby checks can be made in advance of the tribunal hearing.

Third (Committee) Stage Debate: 02/04/2008

Third (Committee) Stage Debate - 02/04/08

Senator Ivana Bacik: I thank the Irish Refugee Council for its detailed submission and the work it has done on this issue. I share many of its concerns about the inadequate human rights protections for a person seeking protection under the Bill. I will deal with a number of important points.

The council raised the issue of interpretation. Given the extensive powers of detention under the Bill for persons seeking protection, we must be concerned that the rights to be dealt with in a language understood by the applicant are so qualified. I refer, in particular, to section 73(4) relating to the application for protection and section 85(5) dealing with the oral hearing where a person is making an application for protection. In both provisions the right to be dealt with in a language understood by the applicant is curtailed to “where necessary and practicable”; in other words, an interview shall “where necessary and practicable” be conducted with the assistance of an interpreter. I presume the council is concerned that the right is too qualified and that it must apply where it is necessary for the person to understand what is happening, particularly given the case study described.

Concerns have also been raised about particularly vulnerable persons. Clearly, there are inadequacies concerning protection for children, including those who are trafficked and not dealt with separately. The delegates may wish to comment on this.

The provisions in section 70(8) which are repeated in section 58 regarding applicants generally, not just applicants under the old asylum law, also deserve attention. Where it appears to the authorities that a person may not be under 18 years of age, the benefit of the doubt is not given to the child; in other words, my concern is that it seems the onus is placed on the individual child applicant. Under the UN conventions and international law on children, it is important that the benefit of the doubt is given to the child and that the person concerned is treated as a child until the contrary is proved. Section 70(8) provides that where the Garda has reasonable grounds for believing the person is not under the age of 18 years, the law will apply as if he or she were over 18. The children's office may want to address that point, which seems to be at odds with international law.

Senator Ivana Bacik: Mr. Jordao's comments have been very detailed. I note the submission contained different recommendations for the better protection of children. It expressed concern that the Bill, as drafted, does not comply with best practices in this area. Which is the most serious encroachment on the rights of children in the Bill?

The submission stated children will de facto be detained where there is a doubt as to their age. It also stated children should be entitled to have a guardian appointed in the process, a provision not contained in the Bill. Does Mr. Jordao agree with a previous speaker that the committee should hold separate hearings with children's groups on the Bill's provisions relating to children? Would it be helpful to tease out what should be the best way to protect child applicants?