David Norris (Independent)

I have made the point that the rights of the child survive this legislation but I wish to ask the Minister some questions. What about the children who are left behind in Ireland? Who is looking after them? Are any measures being put in place to guarantee the rights of the child in these instances? The Minister has agreed, by nodding, that he is also charged with protecting the rights of the child who is an Irish citizen. How will those rights be protected while such children are outside the country? How will consular officers ensure that such children will be able to realise their rights? They have rights which are clearly specified in the Constitution. These include the right to a proper education, decent health care and protection from abuse, as well as all the other rights under the Constitution, the European Convention on Human Rights and the UN Convention on the Rights of the Child. If they are in one of these wonderful countries — for example, Nigeria, about which the Minister is so lyrical — how will he be able to assure the House that he is protecting these legal rights? What will happen to a child who, for example, is forced to move to a country where there is not an Irish ambassador or even a consul? How will we monitor such children's rights?

Leaving aside the parents for the time being, these children are Irish citizens. What will be done if the Government of a foreign country decides not to accept them? If they find themselves in a country that routinely engages in serious breaches of human rights, what provisions are being made to protect them? I have already raised the questions of forced marriage and female genital mutilation. These are Irish citizens, as determined under the law and the Constitution, so is the Minister content that they could be subject to such conditions?

Are any statistics available concerning the number of children left behind here? Do we know where they are? Do we know how these Irish citizens are being looked after here, as required under the Constitution? A child impact review should be undertaken on these Irish citizens. We need to know what the effect of this measure will be on them and only in light of that can we make certain decisions.

There may be test cases and I am sure the Minister knows much more about this than I do. In a 1999 case entitled Baker v Canada, the Canadian supreme court ruled that insufficient weight had been given to the fundamentally important impact that a migrant parent's deportation would have upon her children and upon their rights. That is a case that is arguable and which creates precedent that is, to some extent at least, persuasive in Irish law.

The Minister provided an interesting background to the situation, arising as it does from the Government's interpretation of a Supreme Court action in January 2003. That led to the retroactive termination of the procedure which had existed whereby migrant parents of Irish children could apply for residency. That left approximately 11,500 parents in this position, although so far in the debate, nobody has mentioned that fact. Some 11,500 human beings are in this anomalous situation. That is the scale of the problem. Would the Minister be prepared to grant some amnesty to these people, except those who have a prior proven track record?

In a situation that almost amounts to retrospective or retroactive legislation, the administrative practice of the Department of Justice, Equality and Law Reform was to accept applications for residency in the State from the non-national parents of Irish children. They could have been refused but in almost all cases they were granted up to this case. Following the decision in the Lobe and Osayande case in 2003, which confirmed the Government could refuse to grant residency to the parents of Irish children, the Government announced it would no longer accept these applications. More strikingly, considering there will be no fundamental change in the law, the Government announced it would not process any of the 11,500 applications made prior to the Supreme Court decision and which remain outstanding. Now, apparently, the Department considers all those people to be in the State without permission, even though they lawfully made these applications. Worse than that, in human terms, there has been no communication whatever, as I understand it, from the Department to these people who are placed in this anomalous situation. That puts them in an appalling human predicament.

The Minister has discretion but he is obliged under section 3(6) of the Immigration Act 1999 to examine a number of matters. These include, for example, the age and domestic circumstances of the applicant, the applicant's prospects of employment and the length of his or her stay in Ireland. The Minister is also obliged to have regard to the principle of non-refoulement to which he referred in his speech. However, he still retains absolute discretion on whether to grant permission. There are, as yet, no clear guidelines. Perhaps the Minister will now take the opportunity to put these guidelines and circumstances clearly on the record of the House. There are far reaching consequences of a decision to refuse to grant leave to remain or, in other words, to allow for deportation.

There are also consequences for the families, which need to be able to make a fully informed decision. If a family is deported from Ireland it is extremely difficult, if not impossible, for its members to migrate legally to another country in the future, which is a real consideration. In some countries people who have been deported from another country have their passports confiscated.

Some 3,239 notices of intention to deport have been issued. The Department explicitly states that it does not monitor the impact of the deportations on the Irish children involved, which is an abuse of the rights of Irish citizens. The Department does not retain statistics in respect of the numbers of Irish children who accompany their parents or even the number in the State or wherever they are, which seems frightful. It is very important for people to be granted legal aid.

If all these people appeal and exhaust the legal processes, it will cost the State a whale of a lot of money. It could be cheaper, more humane, more efficient, more justifiable and more in accord with the provisions of the Constitution safeguarding the rights of those Irish children — forgetting about their parents — to take on board the possibility of granting most of these a retrospective right to stay. We can then clear the decks and proceed with what might be a more limiting policy.

At no stage in my speech have I accused the Minister of being racist or miserable. He made a most illuminating contribution, with some of which I agree. However, much was left out and I am glad that, having been briefed by various organisations, I have had the opportunity to place some of these concerns on the record of the House and I look forward to the Minister answering them.