Éamon Ó Cuív (Galway West, Fianna Fail)

I am here on behalf of the Minister for Justice, Equality and Law Reform. The persons named in this matter were asylum seekers and, in accordance with the policy of successive Ministers for Justice, Equality and Law Reform not to reveal the personal details of the cases of individual applicants for asylum, I will not repeat their names in the course of this response.

I point out that the matter raised uses two terms, "anomaly" and "forced separation", which are intended to connote impropriety or even illegality with regard to the deportation of the two persons named in this matter. For the reasons I will outline hereafter, no illegality or impropriety whatever applies in this case.

The Minister has said this many times previously, in response to various parliamentary questions or Adjournment motions, that the need continues to record what the legal and policy background is to the deportation of persons who arrive in the State claiming international protection, if only to ensure that the actions which took place here are seen in a proper context.

Asylum seekers are persons who come here seeking refugee status. Their asylum claims are thoroughly investigated and if they are found not to be in need of protection under the Geneva Convention, they are no longer asylum seekers. Furthermore, before any deportation takes place, they are given an opportunity to voluntarily go home or to give reasons why they should not be deported.

There are two fundamental underlying principles with regard to the asylum process and the treatment of individuals who are not be found to be refugees at the end of that process, namely, that when asylum seekers come here and seek our protection their cases are fairly and independently examined and that a deportation process, after a person's case has been dealt with fairly, is central to the proper running of any immigration and asylum system.

The definition of a refugee is set out in section 2 of the Refugee Act 1996. Subject to certain exceptions, that definition is:

A person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, unwilling to return to it.

The task, therefore, in the case of each individual asylum seeker, is to determine whether, following investigation, he or she is deemed to come within the terms of that definition on the basis of all of the information gleaned.

Under the Refugee Act 1996, two independent statutory offices were established to consider applications and appeals in respect of refugee status and to make recommendations to the Minister for Justice, Equality and Law Reform on whether such status should be granted. These offices are the Refugee Applications Commissioner and the Refugee Appeals Tribunal.

Every asylum applicant is guaranteed an investigation and determination of his or her claim by the Office of the Refugee Applications Commissioner in the first instance. Every applicant is also guaranteed a right of appeal to the Office of the Refugee Appeals Tribunal, which is a statutorily independent and statutory body. Every applicant is also guaranteed access to legal assistance provided by the Refugee Legal Service.

Under the provisions of section 17(1) of the Refugee Act 1996, the final decision on an asylum application is a matter for the Minister for Justice, Equality and Law Reform based on the recommendation of the commissioner or the decision of the tribunal. The Minister is obliged under legislation to accept such a recommendation, other than in very exceptional circumstances. When the Minister decides, under section 17(1) of the 1996 Act, to refuse to give a declaration of refugee status to an individual, notification is sent to the individual. He or she is then informed that three options are open to him or her. He or she may voluntarily leave the State; he or she may consent to a deportation order being issued in respect of him or her, in which case arrangements are made for his or her removal from the State; or he or she may make written representations within 15 working days setting out the reasons he or she should be allowed to remain temporarily in the State.

The safety of returning a person is fully considered when decisions are being made on whether to make a deportation order. Such consideration takes place under section 5 of the Refugee Act 1996. A person cannot be expelled from the State or returned in any manner to a State where, in the opinion of the Minister, the life or freedom of the person is threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. Section 3(6) of the Immigration Act 1999, as amended, provides that the Minister must consider 11 factors when considering whether to deport a person. The factors include considerations relating to the common good, the person's family and domestic circumstances and humanitarian considerations. If the Department becomes aware that an individual is attending an educational institution and has examinations pending, such information is to be taken into account.

I propose to speak about the circumstances of the case raised by Senator Bannon. The two Nigerian women referred to by the Senator were deported from the State on a charter flight to Lagos on the night of 14 March 2005. One of the women was accompanied in the State by four of her children and the other was accompanied by two children. The asylum applications of both women and their children were refused following negative determinations by the Office of the Refugee Applications Commissioner and the Office of the Refugee Appeals Tribunal. The cases were further considered under section 3(6) of the Immigration Act 1999, as amended, and section 5 of the Refugee Act 1996. Representations were made on their behalf for leave to remain in the State before deportation orders were signed.

The Minister has been informed that despite the best efforts of the Garda National Immigration Bureau to maintain the unity of the families on the day of the removals, the women refused to co-operate with the Garda in locating all their children. The women were deported in the company of just one child each. It is understood that the remaining four children, who were hidden from the Garda, were passed into the care of other local Nigerian nationals by their mothers. The Garda National Immigration Bureau informed the local HSE authorities of the circumstances as they related to the children.

The Garda is tasked with the execution of deportation orders. All persons subject to such orders are required to present at Garda stations for the purpose of their removal from the State. It is a priority, as far as it is operationally possible, to ensure that family units which are the subject of such orders are not broken up in the process of enforcing the orders. The Minister has been informed by the Garda Commissioner that in the circumstances which gave rise to the Deputy's questions, gardaí had to call to school properties to enforce deportation orders as a consequence of the failure by the parents to comply with a lawful request to present the family unit to the Garda. That a complaint has been made to the Garda Complaints Board about the matter precludes me for commenting further at this time. No decision has been reached by the board to date.

Notwithstanding the outcome of the complaint that has been made to the Garda Complaints Board about the manner of the removals, it cannot be denied that this problem arose as a consequence of a deliberate choice made by those who are now separated from their children. There was no forced separation and no anomaly arises. The behaviour of the parents in question cannot form a basis for revoking the deportation orders and the Minister does not intend to do so. Those who are caring for the children in this case should make themselves known to the authorities. In such circumstances, every facility will be made available to enable the children to be returned to Nigeria to be reunited with their families. Such a successful family reunification was recently effected in Romania in respect of a Romanian child who had been deliberately left behind by his parents in the course of a charter removal operation from Ireland to Romania which took place on 2 June 2005.