Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
Link to this: Individually | In context

Question 126: To ask the Minister for Justice, Equality and Law Reform if he has read a report (details supplied) just published by the Children's Rights Alliance; the steps his Department is taking to implement its recommendations; and if he will make a statement on the matter. [15866/06]

Michael McDowell (Dublin South East, Progressive Democrats)
Link to this: Individually | In context

The report referred to in the Deputy's question is entitled, All our Children — Child Impact Assessment for Irish Children of Migrant Parents, by the Children's Rights Alliance which was commissioned by CADIC — Coalition Against the Deportation of Irish Children. The report was furnished to my Department on 24 April 2006. The report will require examination but, on a preliminary basis, it can be said that, in essence, it calls for a child impact assessment — templates for which are provided in the report — to be carried out in respect of two sets of children: (i) those Irish citizen children, that is, born before 1 January 2005, whose parents failed to be granted leave to remain under the IBC(05) scheme which I introduced in January 2005. The report maintains that such children may face de facto deportation if their parents are deported arising from their failure under the scheme; and (ii) those Irish citizen children whose parents were granted leave to remain under the scheme but who cannot be reunited with their siblings currently residing in the parents' country of origin because of the specific prohibition on family reunification under the IBC(05) scheme.

The report sets out what it believes to be the various legal bases for such child impact assessments and cites the use of assessments — not specifically in the area of immigration control — in countries such as the UK, Belgium and Sweden.

The report sets out a "rights based" model for Ireland in creating a child impact assessment for the Irish children of migrant parents facing deportation and for those seeking family reunification. The model calls for, inter alia, an economic examination of the country of destination of the child, taking account of its health and social services, unemployment rate, poverty levels and so on.

It should be noted that the concept of a child impact assessment was first put forward by the Children's Rights Alliance and by CADIC in a period where there was the prospect of deportations of significant numbers of parents of Irish-born children. That period was in the interregnum between the L&O judgment of the Supreme Court in January 2003 which, in essence, stated that parents of Irish-born children could be deported, and the initiation of the IBC(05) scheme by me in January 2005 which allowed for the granting of leave to remain to such parents. That scheme followed from the citizenship referendum in 2004 and the passing by the Oireachtas of the Immigration and Citizenship Act 2004, the effect of which is that children born to non-nationals from 1 January 2005 no longer enjoy an automatic right to citizenship. Under the IBC(05) scheme, 16,693 non-nationals were granted leave to remain on the basis of their parentage of children born in Ireland before 1 January, 2005. The scheme was a generous response by the State to the situation of those non-national parents of children born before 1 January 2005. A specific condition of the scheme was that no rights to family reunification arose from it. Refusal decisions were given in 1,119 cases: a breakdown of the reasons for the refusal of these applications is shown in the table. The individual circumstances of those who were refused under the scheme will be considered prior to any decision being made resulting in deportations. It is not possible to say at this stage how many such deportation decisions will be made.

In relation to the broad issues raised in the report it should first be stated that an Irish citizen child cannot be deported from the State. Nonetheless, in the Supreme Court judgment in the L&O case on 23 January 2003, it was held that parents of an Irish citizen child do not enjoy an entitlement to reside in the State. The judgment is complex but an important finding was that while an Irish child has a right to have the care and company of its parents, there is no absolute right for this to take place in Ireland; further, that the Government may determine to deport a family, notwithstanding the effective removal of the Irish-born child, without violating the child's rights. Moreover, the court held that it cannot be said as a matter of law that the parents of a minor can assert a choice to reside in the State on behalf of a minor, even if that could be said to be in the interests of the minor.

I have stated in response to several Dáil questions that it is accepted that non-national parents and children who are subject to deportation will return to countries which have welfare and health services inferior to ours and that this is not, in itself, a basis for allowing persons to remain here.

It must also be understood that, under the existing arrangements, before any deportation order can be made it must be preceded by a process where 11 factors under section 3(6) of the Immigration Act 1999, as amended, must be considered. Among these factors are the family and domestic circumstances of the persons concerned; the common good; and humanitarian considerations. In that process, the individual circumstances of the child are considered, even if such a consideration would not fall to be described as a child impact assessment as set out in the Children's Rights Alliance document.

The report will be considered in detail taking into account the matters referred to above and a response will issue to the Children's Rights Alliance in due course.