Niall Collins (Limerick, Fianna Fail) | Oireachtas source

Fianna Fáil will be supporting this Bill, which provides for the introduction of a single, unified procedure for international protection applications. This is very welcome as the sequential nature of the existing system has led to excessive delays in the processing of applications, resulting in asylum seekers spending many years awaiting a decision on their application. Nevertheless, from our contacts with a number of groups, including Nasc Ireland in Cork and the Irish Refugee Council, we know that while there was a broad welcome and support for the Bill, there is also some concern about and disappointment with some of the provisions. We intend to bring forward amendments on Committee Stage to address those concerns.

The Bill has just passed through the Seanad and the proceedings there last week were described by some Senators as "shambolic". Indeed, the Leader of the House, Senator Maurice Cummins, criticised the Department of Justice and Equality in this regard and questioned why the Bill was published in the first place, given that 90 amendments were introduced by the Department. In the wake of the Seanad shambles, three non-governmental organisations that initially welcomed the Bill with reservations are now calling for it to be withdrawn. While I do not support that call, I share their disappointment that the Bill does not incorporate any of the amendments recommended by the working group on the protection process and by the Oireachtas justice committee in its interim report. The Irish Refugee Council has reservations that if the Bill is passed in its current form, there is a real possibility that it will lead to people in need of protection being refused that protection and being either returned to countries where they are at risk or engaged in lengthy and expensive challenges in court. That is the opposite of what the Bill is intended to achieve.

A key concern about this legislation relates to the welfare of children, with the argument being put forward that it does not go far enough in that regard. As the Irish Refugee Council has pointed out, the best interests of the child, as declared in the United Nations Convention on the Rights of the Child, are a paramount consideration for both accompanied and separated children seeking international protection. Ireland, as a state party to that convention, must honour commitments to promote and respect children's rights in a non-discriminatory manner, including in situations where children are seeking protection here, whether accompanied or separated. As it stands, however, the Bill mentions the best interests of the child principle in only a limited way and does not reflect the general principle that the best interests of the child should be a primary consideration in all actions concerning all children at every stage of the process. Only section 24, dealing with medical assessment to determine the age of unaccompanied minors, section 35, concerning unaccompanied minors, and sections 52 to 56, inclusive, which extend to qualified persons certain rights, such as permission to reside in the State, the right to travel documents and the right to family reunification, contain provisions setting down that the best interests of the child be a primary consideration.

It is essential to ensure the best interests of the child are a primary consideration in all aspects of the protection procedure. The current provision is contrary to Ireland's obligations under the Convention on the Rights of the Child as it only extends to children once they have been granted a protection status. In addition, there is only a limited reference to the best interests of the child in the context of the personal interview. Under Article 22 of the Convention on the Rights of the Child, Ireland is obliged to take appropriate measures to ensure a child who is seeking refugee status or who is considered a refugee shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the convention. Furthermore, the recast asylum procedures directive calls upon states, in assessing the best interests of the child, to take particular account of the "minor's well-being and social development, including his or her background".

We are proposing that the Bill include a definition of unaccompanied minor and separated child. This is crucial to ensure early identification of those children separated from their parents or caregivers, including those who are in the company of smugglers or traffickers. While section 14 goes some way to defining an unaccompanied minor, there is a lack of clarity on how a determination is made as to whether someone is "taking responsibility for the care and protection" of the child concerned. This is particularly concerning in the context of situations where a child is being trafficked. We are proposing to bring the Bill more in line with the Separated Children in Europe Programme, SCEP, and the Office of the United Nations High Commissioner for Refugees, UNHCR, definition of separated children. Section 15 of the Bill precludes an accompanied child or a child born in Ireland from making an application for asylum independently of the accompanying adult. By amending section 15 to clearly articulate that right, it will remove any potential conflict with section 7(2)(f), which makes explicit reference to acts of persecution of a child-specific nature.

In its observations on these provisions, the Irish Human Rights and Equality Commission recommended that the best interests of the child should be a primary consideration in respect of all aspects of the Bill, not just in the limited context of children who have been granted refugee status or subsidiary protection status. The commission proposes that a general provision be inserted to the effect that in all decisions relating to children under the operation of the Bill, the best interests of the child be a primary consideration. This recommendation was also reflected in the interim report of the Joint Committee on Justice, Defence and Equality and in the report of the working group on the protection process.

Concerns have also been expressed that the family reunification provisions in the Bill are not in line with the existing rights of persons granted international protection in Ireland.

The Irish Human Rights and Equality Commission points out that the definition of a "member of family" who may enter and reside in the State in section 55 is narrow and it notably excludes dependants. The commission recommends that consideration be given to the range of family relationships to which Article 8 of the European Convention on Human Rights can apply in the context of this legislative proposal.

Section 55(5) permits the Minister to provide a time limit by which a family member granted family reunification must have entered the State. There is concern that the introduction of any such restrictions may not take into consideration any exceptional measures or obligations which may arise which may prevent travel. It is also worth noting that the cost of travel is usually borne entirely by the sponsor and can represent a very significant cost, particularly for those with large families. In the experience of many groups working in this area, it is common for delays to occur in family members travelling to Ireland. These may include delays in obtaining entry visas to Ireland or exit visas from the home country; difficulties in obtaining travel documents; raising the cost of travel, particularly for large families; and making arrangements for the care of any family members who may not be eligible to travel. There is concern that in some circumstances the safety of the family may be jeopardised if they are required to travel when it may not be safe to do so.

As they stand, sections 55(6) and 56(5) do not provide for any exemptions on the loss of the right to reside in the State for family members of refugees. There is concern that this may disproportionately impact on spouses or civil partners who experience domestic abuse. The experience of domestic violence organisations is that victims of domestic abuse often remain in abusive and-or dangerous relationships as they believe it may otherwise compromise their immigration status. Those who have experience in assisting family members of refugees to resolve their immigration status in the event of the death of the sponsoring refugee believe that at a time of great personal grief and hardship for the families concerned, it is important that they be able to retain their status in the State.

Section 55(8) limits the right to family reunification to the 12-month period after the sponsor has been recognised as a person in need of international protection. Current legislation does not contain this restriction. This time period should be removed as it will severely impact the most vulnerable family members who may have become separated in fleeing conflicts or who may have been imprisoned. For example, Nasc in Cork has represented a number of sponsors who have only successfully found family members years after they have been granted status. Under the proposed legislation, they would have lost their right to family reunification.

While the extension of family reunification rights to civil partners of refugees is welcome, there is concern that LGBT refugees will remain unable to realise their rights to family reunification with same-sex spouses or partners. Section 55 provides that the relationship must have been subsisting at the time of the sponsor's application for protection in Ireland, but same-sex marriages or civil partnerships are generally illegal in the top refugee-producing countries. In the majority of such countries, same-sex sexual activity is illegal. It is quite possible that a sponsor's application for international protection may have been based on the risk of persecution because of their sexual orientation and it would be unrealistic in these circumstances to expect couples to have married or obtained a civil partnership prior to the sponsor fleeing their country of origin.

Section 55 does not provide any means for a refugee or person eligible for subsidiary protection to apply for family reunification with other dependent family members including parents, wards, grandchildren and adult children. As outlined by United Nations High Commissioner for Refugees, refugee families “rarely fit neatly into preconceived notions of a nuclear family (husband, wife and minor children... A broad definition of a family unit – what may be termed an extended family – is necessary to accommodate the peculiarities in any given refugee situation.” The Refugee Act 1996 includes the possibility for refugees to apply for dependent family members, meaning "any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully". No similar provision is included in the Bill, so there is great concern that these provisions are inadequate and will particularly affect very vulnerable family members, including adults with disabilities and orphaned wards who have become part of the sponsor's family unit.

The Bill also does not provide for a right of appeal on a negative family reunification decision. If the sponsor wishes to challenge a decision, the only legal remedy open to him or her is judicial review proceedings. There is a strong case that judicial review is not an adequate remedy as it is not an appeal on the facts of the case and is an inefficient and costly mechanism.

Section 16(3)(b) places an outright ban on the protection applicants seeking, entering or being in employment. Ireland is now the only country in the EU, bar Lithuania, that has a blanket ban on protection applicants entering the workplace. The impact this has on the lives on protection applicants is well documented. Importantly, the working group on the protection process and direct provision recommended that protection applicants be granted the right to work if a decision on their application was not received within a nine-month period. There is great concern that, despite this, the prohibition on the right to work is restated in the current draft Bill.

The Irish Refugee Council is concerned that there are no provisions in the Bill for the training, qualification and skills of personnel engaged in the protection procedure. Although section 62 empowers the chairperson of the tribunal to convene training programmes, there is no equivalent provision for training requirements for personnel involved in the examination of international protection claims at first instance. Limited reference is made to the specific knowledge of authorised officers examining unaccompanied children but no substantive provision is included in the Bill for the comprehensive qualifications and training of personnel involved in all aspects of the protection procedure. It is essential that authorised officers, border officials, the Garda Síochána and other personnel who come into contact with persons seeking international protection have the necessary competencies, skills, knowledge, attitude and training for their respective roles.

The Irish Refugee Council is concerned that children under the age of 14 are subjected to having biometric data taken from them without their own informed consent in accordance with their age and maturity. It should also be noted that the recast Eurodac Regulation (EU) No. 603/2013 only allows for the fingerprinting of children who are 14 years or older, so the new proposal in the Bill to take the fingerprints of younger children is disproportionate to the aim to be achieved and potentially infringes their right to privacy and data protection under the European Convention on Human Rights and the Charter of Fundamental Rights.

While the Fianna Fáil Party will be supporting this Bill and the introduction of a single or unified procedure to replace the current system, we strongly urge the Minister to take on board the concerns expressed about the Bill.

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