Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 7:

In page 10, between lines 18 and 19, to insert the following: “(5) Where a person engages in conduct described under subsection (4) in respect of a family member under 18, such conduct shall not constitute an offence.”.

Amendments Nos. 7 to 9, inclusive, address the same issues. Amendments Nos. 7 and 8 do it in a wider way. Amendment No. 8 is probably the widest framing, and amendment No. 9 is certainly our attempt at doing a more restrictive and more measured balanced framing. In his speech on Second Stage, the Minister of State was clear that was one of the absolutes, while we continue to debate the humanitarian aspect, but that a very core part of the Bill was ensuring that the persons who are being smuggled are not themselves criminalised by the legislation. I appreciate that there are many parts of the Bill that make efforts in that regard. I am worried about a potential loophole, and I know that later in the Bill there is a catch-all phrase, but I am still concerned about it. The section states: "A person is guilty of an offence if he or she produces, procures, provides, possesses or controls a fraudulent travel or identity document ...". In circumstances where a family member is holding the passport, the ID or the document of another family member, and especially where the family member is a minor, I am concerned that there could be a situation whereby a mother is holding an ID or a document in respect of a child, she could be regarded as committing an offence under this section because she is holding the ID of her child, even though in other aspects she would be protected because she is the person who is being smuggled. We do not want a situation whereby if a family is being smuggled that one member of the family is somehow considered as smuggling other members of the family.The tighter balance on this is possibly in our amendment No. 9, which states:

The possession or control of a fraudulent travel or identity document with the intention that it shall be used for the purpose of assisting the entry into, transit across or presence in a designated state of another person, shall not be an offence in cases where the other person is a family member and the person in possession or control of the documents is themselves being smuggled.

I did not know if we needed to include "if the person ... is themselves being smuggled", and perhaps we do need to include that, but I am conscious that amendment No. 9 is a little bit narrow, that we are just addressing possession and control of the documents, and that we are not addressing "provides", which perhaps we should include. For example, let us consider the situation where a person offers to an immigration officer or to some other border officer or other authorised official, documents on behalf of somebody else. I might reserve the right to bring in and include the "provision of a travel document" within amendment No. 9.I am interested in the Minister of State's response.