Michael D Higgins (Galway West, Labour)
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I welcome the opportunity to raise what I believe to be an extraordinary breach of the Irish Constitution, of international law and of the basic rights of the child and the urgent need to redress this breach. I refer to the imposition of conditions attached to student visas which are implemented by the Garda Síochána and which have the net result of depriving children of their rights. I will concentrate on two cases in the constituency which I share with the Minister present.

One case involves two parents, both of whom had paid very large fees to a third-level institution to do postgraduate studies. In one case the mother is continuing her postgraduate study in medieval history and the father has returned to the United States to continue his postgraduate study. Their child has been excluded from school, in flagrant violation of Article 42.4 of the Constitution which states, "The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative." This is not a qualified right; it is not confined to Irish citizens but is available to all children. In addition to the outrageous breach of Article 42.4, the woman involved has been told that she should provide for her child through private education. The only private education available to her is the Seventh Day Adventist school. This limitation on her choice is in clear breach of Article 42.3.1o. The Education Act 1998 is being broken and the Equal Status Act 2000, as amended in 2004 by the Equality Act, is being broken and the European Convention on Human Rights as introduced into Irish law as a binding form of law is being broken. The protocol to the European Convention on Human Rights shows the assurances to be quite similar to those in the Irish Constitution. Needless to say, the United Nations Convention on the Rights of the Child is being broken.

The Minister for Education and Science, in a reply to Parliamentary Question No. 741 of 11 December 2007, washes her hands of the entire situation by stating there is a clear process by which children are enrolled in school. She concludes the reply ominously and acknowledges, inter alia, "Indeed, under the Equal Status Act, schools may not discriminate in admission to schools except where this is necessary to maintain the religions values or ethos of the school." Her conclusion to the reply shows the flimsy basis for the discrimination. She said:

The report of the interdepartmental committee on the internationalisation of Irish education, published in 2004, sets out a strategy with the objective of enhancing the attractiveness of Ireland as a quality venue for international students and increasing the numbers of students coming to Ireland to participate in further and higher education and training and in the language sector. It was envisaged that students from outside the EU-EEA and Switzerland, other than refugees and those with humanitarian leave to remain in the State, would participate on a fee paying basis.

In the course of the discussions leading to the report, the position of minors attending school for second level education was discussed, and the existing immigration policy that student visas should be allowed only in respect of attendance at fee-paying schools was confirmed, on the basis that to do otherwise would give rise to additional demands on the State.

This is being implemented at primary level without any legal basis in outrageous breach of the Constitution. In addition, the Garda is involved in its implementation because, as such parents arrive to have their visas renewed, they are being told that if they have children in State schools, they must withdraw them and send them to a private school. Will the Minister please respond to the specific questions relating to the breach of the Constitution and the European Convention on the Rights of the Child? On what basis does the Garda have powers to instruct that a child be taken from a public school? It has no such powers. All efforts at finding where responsibility may lie have failed. I have concentrated on this case by way of illustration but there is another involving people from a much less wealthy background who are in the same position with their child who was accepted at a school, the principal of which has written to me about it. The child has had to be removed from the school on the instructions of the Garda under threat of deportation.

What right does the Department of Justice, Equality and Law Reform have to impose conditions that contradict the rights of the child which the Minister for Education and Science acknowledged in her reply? The view of the Department of Education and Science is that it has nothing to do with the Minister, as she only deals with admissions. The attitude of the Department of Justice, Equality and Law Reform is that it is entitled to make this condition. My advice to the individuals involved — three in total, two of whom came to see me directly in Galway — is to seek legal redress immediately. It is appalling that a totally illegal set of actions is depriving children of their right to a primary education.

Éamon Ó Cuív (Galway West, Fianna Fail)
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I thank the Deputy for raising this issue, which is a complex one. I reply on behalf of my colleague, the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, who unfortunately cannot be present. This provides an opportunity to bring additional clarity to what is a complex issue.

Michael D Higgins (Galway West, Labour)
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The child is entitled to an education; that is not complex. Under the Constitution, the child is entitled to be at school in the public system.

Éamon Ó Cuív (Galway West, Fianna Fail)
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I will continue with the reply and explain the complexities.

The Minister acknowledges that at first sight there appears to be a contradiction between the policies of the two Departments. However, on closer examination this is not the case. The Minister is aware of the right of all children in the State to a primary education and supports it fully.

Michael D Higgins (Galway West, Labour)
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By ordering the Garda to refuse their parents' visas.

Éamon Ó Cuív (Galway West, Fianna Fail)
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As a former Minister of State with responsibility for children, the Minister is particularly well informed on issues regarding children's rights. However, what is at issue in this instance is not, in essence, the right of a child to an education, which is not in dispute, but the rights and obligations of parents permitted to come to Ireland as students. In other words, while a foreign national child is entitled to free education while in Ireland, this in no way implies a right for them or their parents to enter the State for that purpose. All sovereign states have the right to determine who should enter their territory and the conditions attaching to that entry and residence. That is a basic feature of immigration systems and immigration law.

Michael D Higgins (Galway West, Labour)
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The Minister has no right to make conditions.

Ciarán Cuffe (Dún Laoghaire, Green Party)
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The Deputy should allow the Minister to conclude his reply.

Éamon Ó Cuív (Galway West, Fianna Fail)
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In Ireland, the key section of legislation is section 5(1) of the Immigration Act 2004, which states: "No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given under this Act after such passing, by or on behalf of the Minister".

Michael D Higgins (Galway West, Labour)
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The European Convention on Human Rights Bill enacted in 2003 supersedes it.

Seán Ardagh (Dublin South Central, Fianna Fail)
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The Deputy should please allow the Minister to conclude.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Like those of other states, the Irish immigration system caters for various categories of migrant with different conditions applicable to each one. At one end of the scale, persons granted refugee status have extensive rights. High skilled workers also benefit from favourable conditions. Permission to remain in the State as a student, on the other hand, is a very limited form of permission aimed solely at facilitating the student to undertake a course of study. The student is expected to be self-sufficient during his or her stay.

Michael D Higgins (Galway West, Labour)
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And to be childless.

Éamon Ó Cuív (Galway West, Fianna Fail)
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A concession has been granted to allow a student to do some casual work to help support himself or herself while here. The underlying principle regarding self-sufficiency is that the foreign national who is here on that basis would not need to avail of State funds or State-funded services, nor would any dependent family members allowed to enter the State require such State benefits. It is clear that having a child educated at the State's expense would be in breach of this requirement. However, an exception is made where the child is attending a fee-paying school on the basis that the parents are making a contribution to the costs involved.

The permission to come to Ireland is not independent from the conditions attaching to it. If students had the right to be accompanied by dependent family members who would be entitled to avail of State-funded services, it is almost certain they would not be allowed to enter in the first place.

Michael D Higgins (Galway West, Labour)
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Only childless couples.

Éamon Ó Cuív (Galway West, Fianna Fail)
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The immigration authorities are encountering an increasing number of students coming to Ireland for the express purpose of having their children educated. This is an abuse of Ireland's hospitality and must be seen as contrary to public policy. To reiterate, it is not a question of a child's entitlement to an education——

Michael D Higgins (Galway West, Labour)
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It absolutely is, as the Minister knows well.

Éamon Ó Cuív (Galway West, Fianna Fail)
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I do not.

Seán Ardagh (Dublin South Central, Fianna Fail)
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The Deputy must allow the Minister to conclude.

Éamon Ó Cuív (Galway West, Fianna Fail)
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I do not agree with the Deputy. If I enter a country on express agreed conditions, it is incumbent on me to abide by them.

Michael D Higgins (Galway West, Labour)
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But the Minister has no right to limit the rights of a child, nor has the Minister, Deputy Brian Lenihan.

Éamon Ó Cuív (Galway West, Fianna Fail)
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The State has.

Seán Ardagh (Dublin South Central, Fianna Fail)
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I appreciate Deputy Higgins's passion and interest in the issue but he must allow the Minister to conclude his reply.

Éamon Ó Cuív (Galway West, Fianna Fail)
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The State has the right in cases where there are agreed conditions because a person comes and is accepted on those conditions.

Michael D Higgins (Galway West, Labour)
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No.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Yes. The Deputy is incorrect. I have no doubt that if the person concerned brings the case to court, it will vindicate the position of the Government. To reiterate, it is not a question of a child's entitlement while here but rather whether the child and his or her parents should in the circumstances be here in the first place. I understand the immigration authorities are looking at the matter with a view to making an exception to cover the current school year so as not to disadvantage the children concerned in this case. This would be on a strictly limited basis and any adult student wishing to stay beyond the end of the school year would be required to adhere strictly to whatever conditions were in force at the time. I also understand the Minister for Justice, Equality and Law Reform has general concerns regarding the operation of the student immigration sector and the level of abuse of student permissions and that it is his intention to outline policy changes early in the new year.

Seán Ardagh (Dublin South Central, Fianna Fail)
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I thank the Minister.

Michael D Higgins (Galway West, Labour)
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What about the Garda powers?

Éamon Ó Cuív (Galway West, Fianna Fail)
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If somebody is not adhering to the conditions attached to his or her presence in the State, the Garda has a right to intervene.

Michael D Higgins (Galway West, Labour)
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It has no powers in this area.

Éamon Ó Cuív (Galway West, Fianna Fail)
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The Deputy must be a better lawyer than the Minister.

Seán Ardagh (Dublin South Central, Fianna Fail)
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The Minister and the Deputy are both well aware of the rules regarding the conduct of these debates.

Éamon Ó Cuív (Galway West, Fianna Fail)
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I wish to explain matters to my constituency colleague.

Seán Ardagh (Dublin South Central, Fianna Fail)
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I appreciate the efforts to stimulate and continue the debate.