Publications
National Assessments
IRELAND - Questionnaire for Country Assessment
6. DETENTION (SGP:C6)
a) Please describe relevant law, policy and practice in your country.
There is currently no law allowing or prohibiting the detention of separated children seeking asylum in Ireland. The 1996 Refugee Act () contains a section on provisions relating to detained persons in the State. The relevant sections are Sections 9 and 10. The Immigration Bill of 1999 () incorporates the provisions for detention contained in the Refugee Act of 1996 ().
Section 9 (8) (a) states:
"Where an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects that an applicant-
- poses a threat to national security or public order in the State,
- has committed a serious non- political crime outside the State,
- has not made reasonable efforts to establish his or her true identity,
- intends to avoid removal from the State in the event of his or her application being transferred to a convention country pursuant to section ( 22),
- intends to leave the State or enter another state without lawful authority, or
- without reasonable cause has destroyed his or her identity or travel document documents or is in possession of forged identity travel documents,
he or she may detain the person in a prescribed place (referred to subsequently in this Act as a ( "place of detention").
Section 9 (12) (a) states that subsection (8):
"shall not apply to a person who is under the age of 18 years."
Section (b) follows:
"If and for so long as the immigration officer or, as the case may be, the member of the Garda Síochána () concerned has reasonable grounds for believing that the person is not under the age of 18 years, the provisions of sub section (8) shall apply as if he or she has attained the age of 18 years"
The Immigration Bill () outlines the periods of detention permissible under the legislation. The maximum period of detention before an individual may be brought before a judge is ten days. A Judge can commit the person for ensuing periods of 10 days without charge pending the determination of the person’s application under Section 8.
Section 10 outlines the rights of the applicant in relation to detention proceedings. It states that the member of the Garda Síochána concerned shall, without delay, inform a person detained, where possible, in a language he or she understands of their entitlements while in detention.
Effectively the Immigration Bill () allows for the detention of a person who is suspected to fall into the above mentioned categories to be detained for periods of ten days at a time after which they will appear before a Judge of the District Court. The Judge can then recommit the person to detention for a further period of ten days until such time as he or she is satisfied on the evidence before him that the individual does not fall into the categories aforementioned.
Currently it is not the policy of the Department of Justice, Equality and Law Reform to detain separated children seeking asylum in the State; save in the circumstances where the individual is suspected of having committed a crime under Irish law. In this situation the individual would be dealt with under Irish criminal law and detention may arise in accordance with criminal legislation.
From the information available it would appear that the Irish Government has not detained any separated child under Immigration law in the State. The administrative procedures of July 1998 under which the Department of Justice, Equality and Law Reform are operating do not examine the issue of detention in relation to adult or child applicants for asylum in the State.
b) To what extent does this conform to the Statement? Please outline in brief.
In practice Ireland has shown itself to be in conformity with the Statement of Good Practice. The problem lies however in the possibility of the detention of a child where the Garda Síochána has "reasonable grounds for believing that the person is over the age of 18 years". There are no requirements within the new amended legislation for the provision of an independent age assessment. Should the detention of a separated child occur, the maximum period of detention before the individual appears before a Judge is ten days. Furthermore, there is a possibility of further detention after this period.
c) Are any changes needed? In relation to any first principle?
To ensure conformity to the Statement, non-governmental organisations and human rights groups have advocated an age assessment procedure where there is any doubt over the minor’s age at point of entry or at any stage of the asylum procedure.
The Irish Refugee Council endorsed the ECRE () position that separated children should never be detained for immigration reasons. This includes detention at point of entry or any form of detention after the rejection of the asylum claim.
Currently non-governmental organisations are lobbying amendments on the Immigration Bill () and are criticising the length of the initial period of detention particularly where it could potentially relate to a separated child.
7. RIGHT TO PARTICIPATE (SGP:C7)
a) Please describe relevant law, policy and practice in your country.
There is no specific provision within immigration legislation referring to a separated child’s right to participate. However, separated children are protected under the Child Care Act’s () provisions. As such, one of the primary principles of the Child Care Act 1991 is to ensure that the wishes of the child are respected where legal proceedings are taken under the terms of this Act ().
In addition, Section 24 of the Child Care Act () places a duty on the Courts to take into consideration the wishes of the child in any court proceedings under the Act concerning the child’s care or welfare, having regard to the age and understanding of the child ().
Where separated child has secured a solicitor the views and wishes of the child with regard to the asylum procedure are sought and taken into account. In the event of a guardian ad litem being appointed by the Courts it is his/her responsibility to protect the best interests of the child and to ensure that the views and wishes of the minor are considered. It is notable that currently only a small minority of separated children has been appointed a legal guardian.
The Asylum Division and some immigration officials have received an introductory training in issues surrounding separated children seeking asylum. To date officials have not received extensive training in specific interview techniques for separated children.
b) To what extent does this conform to the Statement? Please outline in brief.
There is no specific formal legal or administrative provision regulating the exercise of the child’s right to participate. In practice however, a separated child seeking asylum will normally have the opportunity to express his or her views and wishes during the asylum interview and at the appeal hearing.
Many separated children have not been given the opportunity to be heard via a legal representative or guardian at the asylum interview.
c) Are any changes needed? In relation to any other first principle?
A separated child should be in the position to exercise this right from the point of application. The Irish Refugee Council recognises that respect for the views of the child and the child’s participation is vital in all decision-making processes which concern the child. While provisions for participation are laid down in the Child Care Act 1991 (), there is a need for other mechanisms such as an Office of Ombudsman for Children () to be put in place. This would allow for consultation with all children, including separated refugee children in all matters affecting them. According to the Children’s Rights Alliance, ‘ consistent with Article 12 of the UN Convention on the Rights of the Child 1989, such a mechanism should allow for weight to be attached to the child’s view in accordance with age and maturity’().
It would be desirable that, in accordance with the Statement of Good Practice, all officers dealing with separated children are trained extensively in interviewing and dealing with separated children.
8. FAMILY TRACING & CONTACT (SGP: C8)
a) Please describe relevant law, policy and practice in your country.
There are at present no statutory or other procedures for the tracing of separated children’s parents largely due to the fact that the situation has arisen so infrequently, if at all. The Immigration Section of the Department of Justice, Equality and Law Reform acknowledged that there is a need for further investigation into this area.
The Department of Justice, Equality and Law Reform have no program in place for family tracing or contact. However the Immigration Section of that Department stated that they would never return a minor to their country of origin unless they had a family and that this family could be traced.
The Irish Red Cross are also involved in family tracing through their Red Cross Tracing Service which reunites close relatives who have been separated by armed conflicts or political upheaval. The Irish Red Cross tracing service is open to anyone who is trying to locate a missing relative in another country. The only requirement is that the information provided by the applicant is sufficient to commence tracing procedures. The age or status of the enquirer is not a factor in deciding whether the Red Cross can facilitate the search or not.
Under normal circumstances a young child would complete the tracing form with the assistance of an adult and in the case of a separated child seeking asylum this would be done with the assistance of a social worker or a case worker. The Red Cross for its part only instigates tracing procedures whenever they are approached by a client to do so. This is a role which has been undertaken by the Irish Refugee Council.
b) To what extent does this conform to the Statement? Please outline in brief.
Given that there is no state provision for family tracing and that the Irish Red Cross only instigates tracing procedures on demand, Irish procedures fall far short of the provisions as outlined in Section 8 of the Statement of Good Practice. Tracing procedures for a child’s parents are not carried out "as soon as possible". The government does not contact UN agencies or the ICRC Central Tracing agency and regular communication between the child and her or his family is not facilitated.
c) Are any changes needed? In relation to any first principle?
Responsibility has not been allocated to any particular body to ensure that a tracing procedure for the parents of a separated child would be instigated. It is clear that wholesale changes are needed to secure the entitlements of separated children as outlined in various international conventions and as put forth in the Statement of Good Practice.
9. FAMILY REUNIFICATION IN A EUROPEAN COUNTRY (SGP:C9)
a) Please describe relevant law, policy and practice in your country.
Under the normal family re-unification procedures a person who gains refugee status is entitled to bring his spouse and children or in the case of a child under the age of 18, his or her parents. As such a separated child who has been granted status will be entitled to bring her or his parents into the State. There is no provision outlined for the entry into the State of the siblings of a separated child although one could appeal directly to the Minister for Justice, Equality and Law Reform in this regard.
It must be remembered however that as of now these provisions have merely administrative effect due to the fact that the Immigration Bill () containing these provisions has yet to become law. Furthermore a separated child in the asylum procedure or who has been refused refugee status has no access to family reunification procedures.
The Dublin Convention (Implementation) Order 1997 () includes the provisions of the Dublin Convention 1990 enabling Member States to accept responsibility for an application for asylum on family and cultural grounds although another Member State is responsible for its examination.
The Department of Justice, Equality and Law Reform has stated that family grounds are considered when a minor lodges an application in the State and another Convention State is responsible for the processing of the claim.
b) Does this conform to the Statement? Please outline in brief.
Given that separated children’s access to family reunification procedures is premised upon their status as regards the asylum procedure and not upon the fact that they are separated children, the procedure falls short of the requirements outlined in the Statement of Good Practice.
c) Are any changes needed? In relation to any first principles?
Given that there are no specific reunification procedures for separated children, it is clear that policies should be put in place in order to facilitate family reunification procedures in Europe. This would ensure that the practice in Ireland is in conformity with the UN Convention on the Rights of the Child and the Statement of Good Practice.
10. INTERIM CARE - HEALTH - EDUCATION AND TRAINING (SGP.C10)
Interim Care (SGP:C10.1)
a) Please describe relevant law, policy and practice in your country.
The interim care arrangements of separated children in the State are subject to the 1991 Child Care Act, which is applicable to national and non-national children alike (). However at present there is no particular policy in place with regard to the specific care of separated children.
According to the Child Care Policy Unit, Department of Health and Children the issue of care arrangements for separated children is not considered to be a problem and the Department do not foresee any further developments in this area in the near future.
Every separated child that arrives in Ireland registers with the local Health Board, in most cases this is the Health Board responsible for the Dublin area, the Eastern Health Board. The section of the Eastern Health Board dealing with asylum seekers is situated in the Refugee Applications Centre, Dublin.
At the Refugee Applications Centre, separated children are seen by a Community Welfare Officer (CWO) with regard to their social welfare payments and housing arrangements. In co-operation with a social worker the children are assessed and placed in "emergency accommodation".
This procedure usually takes place in the following way: The CWO writes a covering note for the duty social worker, which will subsequently assess the minor. The social workers are situated in another location (Clonskeagh), to which the minor is driven to by taxi. Following this assessment, the social worker contacts the CWO recommending that the child be given suitable accommodation. The minor then returns to the Refugee Applications Centre where he or she is housed.
In most cases the housing arrangements are either hostels or Bed and Breakfasts. In general the minors stay in this accommodation throughout the asylum procedure or until they are eighteen years old. In the case of a separated child wanting to move into private rented accommodation, a social worker should supply the Community Welfare Officer with a note advising him or her that rented accommodation is suitable for the minor. In such cases they will receive rent allowance, which covers most of the rent costs.
According to statistics received from the Social Work Section dealing with separated children, contact has been made with two unaccompanied minors since the beginning of January 1999, who are living in private rented accommodation. They are siblings and 15 and 16 years old respectively (). In 1998 the Eastern Health Board (EHB) formally took on the responsibility for separated children in the Social Work Department in one of the Community Care areas.
At present separated children are referred to a duty social worker by the Eastern Health Board in the Refugee Applications Centre who will then assess the child’s needs and if necessary follow up on the child’s well-being.
It has not been possible to establish whether separated children are actually taken formally into care under a certain section of the Child Care Act or if, as it would seem, they are only housed and where necessary further follow up work is undertaken by a social worker.
However the Department of Health and Children () stated that the Eastern Health Board is concerned about the small but steady numbers of separated children coming into the country and has developed a social work post to be attached to the One Stop Shop (). The remit of the social worker is not clear as yet.
Furthermore the Government is currently establishing a Social Service Inspectorate, which will be an independent monitoring body with regard to residential care centres, for national as well as non-national children in the State. Where deemed necessary this Social Service Inspectorate will also have the responsibility for the monitoring of care arrangements of separated children.
In addition, the Eastern Health Board is currently interviewing for a senior manager post in the Crisis Intervention Service. The senior manager will be responsible for needs assessments and service development in the area of asylum seekers and refugees, in addition to other duties relating to homeless children ().
b) To what extent does this conform to the Statement? Please outline in brief.
Although separated children are entitled to the same treatment as national children it would seem that in some areas the care arrangements do not conform fully with the Statement of Good Practice. It has come to the attention of the Irish Refugee Council that the above outlined procedure is not always followed by the agencies involved. The Irish Refugee Council has made contact with separated children who never had contact with a social worker or a care person.
According to the minors who attended a workshop organised by the Irish Refugee Council there are no adult support or care workers in their accommodation. There are hostel managers, but it would appear that these do not actually take on care work as such. In some cases the children are housed in rooms with adult asylum seekers of other nationalities. Separated children and young people also expressed their dissatisfaction regarding the adequacy of their housing arrangements. So far only one of the thirty-two separated children in the State has been placed into a foster family. This was initiated through a social worker and Barnardos.
c) Are any changes needed? In relation to any first principles?
Where developments with regard to interim care arrangements for separated children are instigated, it is recommended that the Government approaches this matter in a more coordinated and policy based manner.
Research should be undertaken into the current care and housing arrangements with special regard to the specific needs of separated children and if necessary policies relating to interim care developed in the light of the recommendations contained in the Statement of Good Practice.
Health (SGP:C10.2)
d) Please describe relevant law, policy and practice in your country.
Although there is no written policy with regard to health care of separated children, in practice all asylum seekers, including minors, are entitled to free health services and are provided with a medical card.
This entitles them to basic health care provisions, such as doctor’s services and to medicines free of charge (). Additional services are free hospital out-patient and in-patient treatment as a public patient, free surgical appliances, free optical tests and glasses and free hearing tests and aids ().
Every separated child who presents himself or herself to the Community Welfare Officer in the Refugee Applications Centre has the option of seeing a doctor who will assess his or her special health needs. The Medical Screening Unit provides the following services:
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Medical Screening: This includes screening for certain infectious diseases and checking the vaccination needs of clients.
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Community Health Nurse Service: If a minor is pregnant or has small children a Public Health Nurse would be contacted.
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Support Groups: Information on various support groups and English classes is also available ().
Furthermore every separated child is given the option of attending a clinical psychological service run by the Eastern Health Board free of charge. This service was recently set up to deal with asylum seekers and refugees, including minors, who may be in need of special assistance ().
e) To what extent does this conform to the Statement? Please outline in brief.
Following on from an initiative of the Lord Mayor of Dublin, the Dublin Corporation and the Eastern Health Board have launched a publication with information on housing, welfare and health in Ireland in various different languages. However there is still a need for the dissemination of linguistically and culturally appropriate information targeted specifically at separated children on a wide range of health issues.
At the workshop held by the IRC for separated children one minor said that his social worker had told him that he was not entitled to go to school. It would therefore appear that the principle of children being informed about their entitlements is not being fully respected.
Another concern regarding health care provisions arises with regard to the principle of bi-culturalism. It would appear that the present health care provisions do not follow any guidelines or policies with regard to the cultural or linguistic needs of separated children. A specific emphasis should be put on proper translation facilities in all health care provisions.
However there is currently a working group within the Eastern Health Board co-operating with Access Ireland (Refugee Social Integration Project), which forms part of the Irish Refugee Council that is looking at the development of a more culturally sensitive work practice. These developments however are not particularly aimed at separated children.
f) Are any changes needed? In relation to any first principles?
While recognising the recent developments in the area of health care generally for asylum seekers, it is recommended that research be undertaken and policies be developed with specific regard to the needs of separated children.
Education, Language and Training (SGP:C10.3)
g) Please describe relevant law, policy and practice in your country.
The Education Act, 1998 (), which has not been fully implemented, makes provisions in the interest of the common good for the education of every person in the State, including any person with a disability or other special educational needs. Section 6 of the Act describes its objectives and states that any person to whom it applies to shall have regard to the certain objects outlined in this statutory instrument. It is notable that the objectives of the Act are amongst others:
(a) to give practical effect to the constitutional rights of children, including children who have a disability who have other special educational needs, as they relate to education;
(b) to provide that, as far is practicable and having regard to the resources available, there is made available to people resident in the State a level and quality of education appropriate to meet the needs and abilities of those people;
(c) to promote equality of access to and participation in education and to promote the means whereby students may benefit from education;
In relation to the policy followed by the Department of Education and Science with regard to separated children it was not possible to ascertain from any of the sources consulted if any policy document has been drafted.
The provision of support services provided by the Education Bill, 1997 can be seen to update the Irish education system and to take a new approach to the overall social and material well-being of the student. The Bill further provides that the right to a school of choice should be available to match the competence and needs of the separated child. Therefore, in law, the mechanisms for protection of the interests of a separated child are equal to those of an Irish child.
The educational sector widely welcomed the establishment by the government of the Refugee Language Support Unit. The purpose of this body is to address the needs of refugees with a poor command of the English language. The Unit has two branches. The first coordinates English language training for persons with refugee status and the other one provides FAS (government training and employment agency) courses for persons with English language skills. The Unit also offers direct provision of English language training.
At the primary school level the Unit has provided fourteen schools, the majority in the inner city area, with specialist teachers. This is a new development, previously the Unit provided teachers who moved from one school to another. At secondary school level, the onus is on the school to approach the Unit via their inspectors and apply for support.
With respect to tuition in their own mother tongue, the Refugee Agency and the Bosnian Community Development Project have run summer projects. Mother tongue classes in Vietnamese and Chinese have been run in one area of the city. The Bosnian Community Development Project have also run classes in Serbo-Croat.
In practice, however no agency has a specific mandate for addressing the special educational needs of separated children. The lack of available coordinated information or a responsible care person ensuring that the child is aware of his or her entitlements is resulting in many separated children being unaware of their right to education. Difficulties also arise in cases were the child cannot speak English and he or she has to enrol in a school without the assistance of a care person.
h) To what extent does this conform to the Statement? Please outline in brief.
In all the schools interviewed there were in place open and welcoming reception procedures in place for the separated children attending. This was part of the schools’ Pastoral Care Programs. In the case of two of the schools this included material support (provision of books and/or clothes).
The majority of schools with a significant number of refugee students attending have stated that both principals and teachers are sensitive to the needs of students belonging to ethnic minorities. Educators also stated that flexibility was a key element and that staff look at the general well-being of the student by facilitating their integration into school life on both a curricular and extra -curricular level. This was facilitated on a curricular level by sensitive classroom instruction and discussion on appropriate subjects and on an extra-curricular level by encouraging separated children’s participation in activities.
Another difficulty that separated children often face is that often they have to sit in classrooms where their classmates are much younger than they are and this makes the process of integration much more challenging. In some cases it is notable that there was a lack of provision of language support. In two schools where no extra English teachers were provided by the Department of Education, resident teachers themselves gave additional English classes on a voluntary basis.
It seems that this has not been made available to any of the children. It can therefore be concluded that although practices vary from school to school, the majority of the schools’ practices conform, in as far as possible, to the recommendations contained in the Statement of Good Practice.
i) Are any changes needed? In relation to any first principles?
Although the special educational needs of disadvantaged groups with special needs are addressed in legislation, it would appear that there is a need for policy and resources to be put in place to ensure that the educational needs of vulnerable children are met. Sources have stated that there are many schools without access to any support.
The Irish Refugee Council recommends that a major co-ordination amongst the different agencies dealing with separated children would benefit the child in respect of all his or her educational needs. Ultimate responsibility lies with the Department of Education and Science and all other parties should direct their concerns to them. There is a need for new channels of communication to be opened.
Regular attendance continues to be problematic. It is noted that in one school where three separated children had been enrolled, only one had attended routinely. The other two drifted out of the education system without any follow up to ascertain why this had happened and how this could be best addressed.
One of the issues that recur is the need for separated children to deal with the traumas and anxiety that they may be experiencing as a result of their relocation. Social workers could play a key role in the monitoring of the separated child’s social and educational development.
Although a separated child has the right to access vocational and professional training, the lack of designated care persons and the lack of coordinated resources can result in the child experiencing difficulties in accessing these services.
11. REFUGEE DETERMINATION PROCESS (SGP:C11)
Access to normal procedures (SGP:C11.1)
a) Please describe relevant law, policy and practice in your country.
The first foundations of the right to apply for asylum in Ireland were established in the text of the December 1985 letter () from the Department of Justice, Equality and Law Reform to the United Nations High Commissioner for Refugees in London. The document established the procedures for the determination of applications for refugee status in Ireland to be followed by the Department of Justice, Equality and Law Reform. The letter also provided that applications would be examined in accordance with the 1951 Geneva Convention relating to the Status of Refugees and its Protocol of 1967. Procedural guarantees were created such as the provision of an interpreter during the interview (if necessary) and the assurance that the applicant would not be refused entry or deported pending the outcome of their application for asylum.
As a result of both, the increase in numbers of asylum applicants and European developments in the immigration and asylum arena, the Irish government introduced a new statutory instrument; the Refugee Act 1996. The Refugee Act was partially implemented in June 1996. To date () only five sections have been commenced (). More recently the Government introduced the Immigration Bill of 1999 () which incorporated amendments to the Refugee Act of 1996.
In December 1997 the Minister for Justice, Equality and Law Reform sent a letter to the UNHCR London informing them of the alteration of the asylum procedures and the establishment of new administrative procedures for dealing with asylum applications. These procedures and the amendments introduced in March 1998 are currently in place although they may be superseded in the near future with the introduction of new statutory provisions (.).
In accordance with the administrative procedures () established by the Department of Justice, Equality and Law Reform, an application for asylum may be lodged by an applicant to an immigration officer on arrival in the State. If the person is already in the State, the application may be made to the Department of Justice, Equality and Law Reform or, if outside Dublin, to the Garda Síochána ( ).
Asylum applicants may be granted or refused leave to land in accordance with immigration legislation. However, if an asylum seeker is refused leave to land, the decision will have suspensive effect and the person will not be removed from the State until the application has been examined substantially and a final decision has been reached. Otherwise it may be determined that the individual is not seeking asylum or that the application for asylum has been abandoned. It may also occur that the application is deemed to be manifestly unfounded or that a final decision has been reached in accordance with the Dublin Convention (Implementation) Order ().
The asylum procedure provides that once the application has been admitted into the procedure, the application may either receive substantive consideration or may be examined under the accelerated procedure. This procedure was established for applications that are deemed to be manifestly unfounded. There are no provisions in place regarding the processing of unaccompanied minors’ applications within accelerated procedures. In practice their applications are processed in the same way as those of adults.
As regards "safe third country" return, the 1985 letter () stated that a person who is an asylum seeker would not be refused entry or removed until he/she has been given the opportunity to fully present his/her case. Furthermore it is also required that the application has been fully examined and a decision reached on it.
The new administrative procedures do not contain any provision regarding this practice. However, the High Court examined the applicability of the principle in the Anisimova judgment () and upheld that the undertakings and agreements contained in the 1985 letter were "subject to the "third safe country" principle and practice".
The Supreme Court upheld this decision in November 1997, although it is currently being challenged in the High Court. In the Lomidze () judgment it was indicated that the procedural guarantees outlined in the 1985 letter () should apply equally in the process of determination of the applicability of the "third safe country" principle. Judicial review of the decision of the Minister for Justice not to entertain an application for refugee status was granted in this case. The grounds for this decision were that the terms of the 1985 letter should have been followed in the process of determining that Ireland should not entertain an application for asylum.
In September 1997 the Dublin Convention 1990 became part of statutory procedures with the introduction of the Dublin Convention (Implementation) Order 1997. As applications of unaccompanied minors are processed in the same manner as those of adults, their applications will be examined under the Dublin Convention. Separated children may therefore be transferred to another Convention State.
According to the Department of Justice, Equality and Law Reform, despite the fact that it is legally possible, none of the unaccompanied minors have been transferred to another Convention State. It is policy of the Department of Justice, Equality and Law Reform, that an unaccompanied minor would only be transferred on Convention grounds if there is a family member in the Convention State. It has also been indicated by the Government that the practice of "safe third country" is not applied in the State. Government sources have indicated that should the practice be introduced, the rights of the child would be taken into account.
b) To what extent does this conform to the Statement? Please outline in brief.
In practice the Department of Justice, Equality and Law Reform follow the recommendations outlined in the Statement with regard to "safe third country" and "safe country of origin" practices. Statutory provisions or formal policy are not however in place to prevent the examination of an application lodged by an unaccompanied minor under these special procedures.
The Department of Justice, Equality and Law Reform do not conform to the Statement’s recommendations with regard to accelerated procedures. Statistics show that a percentage of separated children have had their claims deemed to be manifestly unfounded.
c) Are any changes needed? In relation to any first principles?
Separated children should in all cases be exempted from any accelerated procedures. Furthermore their claim should always be examined substantively in the normal procedure prior to a decision being made. This provision should be enshrined in domestic legislation and form part of government policy.
The practice of not examining claims under "safe third country" or "safe country of origin" should be codified and continued.
Legal Representation (SGP:C11.2)
d) Please describe relevant law, policy and practice in your country.
None of the statutory provisions currently implemented refer to the right to legal representation during the asylum procedure. In March 1999 the Legal Aid Board, an independent statutory body providing legal services in civil matters, established the Refugee Legal Service. This service provides legal advice at all stages of the procedure including representation after the interview, if requested, and at the appeal stage. The Refugee Legal Service can also represent asylum applicants in manifestly unfounded procedures but there is as yet no statutory provision enabling them to represent applicants on Dublin Convention cases. However this development is pending.
In the case of unaccompanied minors a representative of the Refugee Legal Service may attend the interview if the minor requests this service. The Department of Justice, Equality and Law Reform’s Procedures for dealing with applications for asylum refer to the right to be accompanied by a legal representative at the asylum interview. The representative is not entitled however, to intervene in any way during the interview but can make brief points the end of the interview. The representative may make written representations within five working days after the interview.
If the Minister determines that an application for asylum is to be refused, the applicant can appeal the decision. In this event the State will pay £120 towards the costs of the legal representative. The applicant has also the option of applying to the Refugee Legal Service for representation at the appeal stage. The total contributions the applicant must pay are £4 for legal advice and £24 for representation before the Appeals Authority.
Statutory and administrative procedures do not contain any provision regarding the necessity for a legal representative and a guardian or social worker presence at the interview. In practice however, if the minor is not aware of the availability of the service or if he or she has not requested it, the Department of Justice, Equality and Law Reform are at liberty to conduct the asylum interview without the presence of a legal representative or care person.
e) To what extent does this conform to the Statement? Please outline in brief.
The majority of the separated children who applied for asylum prior to the establishment of the Refugee Legal Service went through the procedure without a legal representative until the appeal stage. Legal representation has been recently (February 1999) made available to asylum applicants at all stages of the procedure. However if an unaccompanied minor does not apply for the Refugee Legal Services for representation, she or he may go through the first stage of the procedure unrepresented.
f) Are any changes needed? In relation to any first principles?
Separated children should have a legal guardian appointed at the initiation of the asylum procedure. This guardian should be the responsible for ensuring that the minor has a legal representative at all stages of the procedure acting in his or her best interests. The appointment of a legal representative should take place as soon as possible after the arrival. It would be desirable that the Department of Justice, Equality and Law Reform do not proceed with an asylum interview or any other asylum process in the absence of a legal representative and a guardian or care person.
Minimal Procedural Guarantees (SGP:C11.3)
g) Please describe relevant law, policy and practice in your country.
The asylum process is regulated by the five implemented sections of the Refugee Act 1996 and the administrative procedures established by the Department of Justice, Equality and Law Reform. According to the Procedures for Processing Asylum Claims in Ireland any applicant is given the opportunity to submit his or her case to the Department of Justice, Equality and Law Reform, to contact the UNHCR Representative and a local representative.
The applicant will be interviewed either by the Asylum Division of the Department of Justice, Equality and Law Reform or by an immigration officer. Following the interview the applicant can lodge representations in writing regarding the interview within five working days. A person appointed by the Minister will assess the application and will make a recommendation as to whether refugee status should be granted or refused.
In the event of the application being refused the applicant has the right to appeal the decision. The appeal will be determined by an Appeals Authority who can reach a decision either based on papers only or, where the applicant has so requested, following an oral hearing. The Appeal Authority will make a recommendation to the Minister for Justice, Equality and Law Reform as to whether refugee status should be granted. An officer appointed by the Minister for Justice, Equality and Law Reform will make a final decision on refugee status on behalf of the Minister. Provisions within the Immigration Bill of 1999 () place the Appeal Authority on a statutory footing. This provision will render the decisions of the Appeal Authority as binding.
h) To what extent does this conform to the Statement? Please outline in brief.
Decisions on asylum applications are taken by a person appointed by the Minister for Justice, Equality and Law Reform. The UNHCR has provided training on asylum and refugee related matters to the Asylum Division officers. If the application is refused the minor has the right to appeal the decision. An independent Appeals Authority will reach a determination on appeal.
Neither statutory or administrative provisions deal with the issue of identifying and prioritizing of children’s applications. Government sources have stated that although some applications are prioritized, the majority are been processed in a sequential manner. In practice most of the unaccompanied minors in the State have waited up to two years before obtaining a final decision on their asylum claim. There is no evidence to show that children’s applications are identified or receive any specific treatment during the asylum process.
i) Are any changes needed? In relation to any first principles?
In accordance with the Statement of Good Practice applications lodged by separated children should be prioritised as a matter of policy. This is particularly conceivable in light of the relatively small number of separated children in the State.
Independent Assessment (SGP:C11.4)
j) Please describe relevant law, policy and practice in your country.
There is no law in Ireland in relation to a provision for independent assessment by an expert person with regard to assessing the ability of a separated child to articulate a well-founded fear of persecution. There is no formal policy in relation to it.
In practice the Department of Justice, Equality and Law Reform have never used the services of an independent expert in relation to an assessment of the ability to articulate a well- founded fear of persecution. It must be stated that of the separated children who have arrived in the State, the majority are young persons in their later teens. The youngest separated child arriving in the state was 13 years old. In this case there was no provision of an independent expert to assess the child’s ability to articulate a well-founded fear of persecution. None of the separated children arriving in the state have been registered as having a disability.
k) To what extent does this conform to the Statement? Please outline in brief.
As there is no policy or practice of independent assessment for a separated child, it would appear that there is no surety that the services of an independent assessor would be used should the necessity arise. Further, up until recently there may have been a difficulty in identifying whether a child required an independent assessment as separated children were not in general assigned a social worker, guardian or care person.
l) Are any changes needed? In relation to any first principles?
Non- governmental organisation’s and refugee services recommend that there be a policy in place in relation to the identification of a child who may require the services of an independent assessor. It is also recommended that in all cases were it is deemed that the services of an assessor are required, that one be promptly secured and the assessment be carried out as soon as is practicable. The independent assessor should be trained in child specific forms of persecution.
The UNHCR and the Irish Refugee Council have stated that the interview is not the appropriate place to decide whether or not the minor is mature enough to continue through the first instance of the asylum procedure without a legal representative or care-giver and that this need should be assessed at an earlier stage.
Interviews (SGP:C11.5)
m) Please describe relevant law, policy and practice in your country.
There is no operational law in relation to the interviewing of separated children. In effect the interviews of separated children are held largely in the same fashion as those of adults. It is the practice of the Department of Justice, Equality and Law Reform to allow a separated child to begin an interview without the presence of a legal guardian or care worker. Should it be deemed by the interviewing officer that the child has become too distressed to continue the interview the interview will be halted and postponed.
Department of Justice, Equality and Law Reform sources have stated that this practice applies even in cases were the child has indicated in their initial questionnaire, that they have been a victim of torture, sexual abuse or rape. In two cases the interviews of separated children were halted and postponed owing to the distress state of the child and the Department of Justice, Equality and Law Reform contacted Barnardos in relation to securing a care person for the child.
In practice not all separated children attending interview are accompanied by a guardian or care worker. Department of Justice sources have stated that it is up to the interviewer to make a judgement on the maturity of the child. Since the opening of the Refugee Legal Service, separated children are free to attend at the service and will be assigned a legal representative to attend at interview with them. It is important to note that less than five separated children have attended at the Refugee Legal Service.
The Irish Refugee Council Legal Unit also offers a specialised service for separated children and a legal officer will attend at the interview of any separated child who approaches the Council. During the interview the interviewing officer will allow the separated child to take a break at any stage that they may require it. Interviewers are not trained in child specific forms of persecution, nor have they received detailed training on interviewing techniques for separated children.
n) To what extent does this conform to the Statement? Please outline in brief.
There is not conformity to the Statement in relation to the attendance at interview of a legal representative with every separated child. Many separated children have attended at interview without the presence of a legal representative or a care person. Further the majority of separated children do not have legal guardians, care persons or a social worker assigned to them. There is no procedure for enquiry into whether or not the child would like to have a care person attend interview with them. The level of training in relation to interviewing separated children is not up to the standard of the Statement. The Department of Justice, Equality and Law Reform acknowledge that the area of separated children has been identified as an area that requires attention.
o) Are any changes needed? In relation to any first principles?
The Department of Justice, Equality and Law Reform have stated that in the future they envisage a particular group in the asylum section trained to deal with the interviewing of separated children and refugee children’s issues. This is a development that is strongly welcomed by non-governmental organisations, the UNHCR and the Refugee Legal Service as well as child care organisations.
It is the view of child care organisations, including the Irish Refugee Council, that the situation where an interview of a separated child can occur without the presence of a legal representative, social worker or care person should no longer arise. It is also of concern to organisations working in the area of children’s rights that an interviewer can commence an interview in the normal way and halt the interview when a child becomes distressed. Where this occurs there is no provision for immediate follow up or care. It has been underlined by persons working in the area of child psychology that it can be extremely detrimental for the separated child to begin the interview and discuss the details of the reasons for flight without a guarantee of follow up care with a qualified person.
Criteria for making a decision on a child’s asylum application (SGP:C11.6)
p) Please describe relevant law, policy and practice in your country.
The current asylum administrative procedures do not lay out specific procedures for dealing with the criteria for making a decision on a child’s asylum application, there is no law relating to same.
There is no formal policy in relation to the criteria for making a decision on a child’s asylum application. In practice sources of the Department of Justice, Equality and Law Reform have stated that the UNHCR guidelines contained in the Handbook on Unaccompanied Minors are followed. However Department sources have stated that interviewers in the Department of Justice, Equality and Law Reform were not specifically trained in child specific forms of persecution or on methods of interviewing children.
The UNHCR have conducted basic training on issues surrounding vulnerable groups including separated children however this training has not been extensive. Furthermore, a one-day training session was facilitated by David Wright, Advisor with the International Save the Children Alliance for officers of the Asylum Division. Since this training efforts have been made by the Asylum Division to appoint a core group to deal with the asylum applications of separated children. The analysis of claim by the officers of the Department of Justice, Equality and Law Reform will, in general, contain an acknowledgement of the fact that the person is a separated child.
Department of Justice, Equality and Law Reform sources have stated that Asylum Division officials are expected to make a judgment on the maturity of the separated child.
q) To what extent does this conform to the Statement? Please outline in brief.
The Department of Justice, Equality and Law Reform have stated that they follow UNHCR Guidelines on Unaccompanied Minors. In practice however, it is notable that although the Department acknowledges that the applicant is a minor, there is not, in all cases, an analysis of the factors outlined in the Statement of Good Practice.
The Appeals Authority has underlined the importance of the liberal application of the benefit of the doubt to claims lodged by separated children.
r) Are any changes needed? In relation to any first principles?
In line with the general ethos of the Statement of Good Practice, formal policy should be in place to ensure full compliance with UNHCR Guidelines on Unaccompanied Minors and with the principles of the Statement.
The Irish Refugee Council and legal practitioners advocate the establishment of a core group of officials within the Asylum Division to be put in place to deal specifically with the claims of separated children in the State. In accordance with the Statement, this core group should be trained in child specific forms of persecution and methods of interviewing separated children. The Irish Refugee Council recommends that the members of this core group should have interest and/or experience in dealing with children rights and issues. Department sources have stated that the possibility of setting up such a group is currently under examination.
Young People who become adults during the asylum process (SGP:C11.7)
s) Please describe relevant law, policy and practice in your country.
There is no law in relation to young persons who become adults during the asylum process. Under the asylum procedures which the Department of Justice, Equality and Law Reform operates asylum applications, there is no mention of the procedures for young persons who age out. There is no official policy in the Department of Justice, Equality and Law Reform in relation to the principle of "ageing out".
The practice in relation to separated children is that, when assessing the application of a young person who has aged out, the Department will make an appropriate allowance of the circumstances and the fear of the individual at the time of leaving their country. Consideration is taken of the fact that the applicant was a minor at the time the application for asylum in the State was made. Department of Justice sources have stated that, where a decision is being made at first instance in the case of a young person who has aged out during the asylum procedure, appropriate allowance is taken of the circumstances that person was in at the time of the making of the application.
The Appeal Authority has stated that there is no official policy in place in relation to young persons who have "aged out" during the procedure, however an Appeal Authority source has stated that they advocate a "cautious" approach in relation to such young persons. The fact that the young person has just recently become an adult and has made representations on their application for asylum as a minor is a factor that the Appeals Authority take into consideration. The hearing under the Appeal Authority is considered as a hearing "de novo". The case is completely reheard by an Appeal Authority source and in that sense the young adult before the Appeal Authority has their case heard as an adult. It is underlined by an Appeal Authority source that in these cases certain safe guards are put in place.
In relation to the prioritisation of cases, in an effort to avoid unnecessary delays resulting in the child gaining maturity, the Department of Justice, Equality and Law Reform has stated that applications for asylum are processed in sequential order. The Department acknowledges that some separated children have been subjected to long waits although some cases have been identified and prioritised. The Department has stated that "ageing out" does occur.
t) To what extent does this conform to the Statement? Please outline in brief.
It is notable that the Department of Justice, Equality and Law Reform has no official policy in relation to the principle of "ageing out" and that there is no principle that young persons who have "aged out" will be treated in a generous manner. However both the decision makers at first instance and the Appeals Authority have stated that the fact that the young person left his or her country as a minor is taken into account.
To bring the issue of processing the asylum cases of young persons who have "aged out" fully in line with the Statement of Good Practice the official policy within the Department of Justice, Equality and Law Reform would be that separated children who have "aged out" should be treated in a "generous fashion".
The Statement of Good Practice also recommends that unnecessary delays should be avoided as this can result in the child gaining maturity during the asylum procedure. In recent years the practice of the Department of Justice, Equality and Law Reform has shown that this has not always been the case. Some separated children have been in the asylum procedure for over two years and have "aged out" during the process.
Department of Justice’s sources have stated that there are no specific guidelines attached to the prioritisation of cases of separated children and as such unnecessary delay has not been avoided in some of the cases researched. The Minister for Justice, Equality and Law Reform has recently stated however that it is the aim of the Department of Justice, Equality and Law Reform to shorten the current asylum procedure to eventually achieve the processing period of six months per case.
u) Are any changes needed? In relation to any first principles?
It has been stated by the both the Department of Justice Asylum Division and the Appeals Authority that the fact that a person was a minor at the time of the making of the application is taken into consideration, however they are treated as an adult once they have aged out.
The prioritisation of the cases of separated children is viewed as being of importance by legal representatives dealing with separated children. Some separated children in the State had been in the asylum procedure for more than two years before receiving an initial decision on their case. Child care organisations and human rights bodies advocate the prioritisation of the cases of all separated children in the State. Such bodies contend that if a child enters the State as a separated child, the case should be processed, if reasonably possible, while the applicant is a minor and further that this should be both the policy and practice of the Department of Justice, Equality and Law Reform. Currently, although examination of asylum cases in general has become more expeditious, there is no clear policy for the prioritisation of the cases of all separated children in the State.