Legal Status and Issues of Asylum Seekers in Ireland: A Focus on Children

This paper discusses the legal status and issues that may arise out of an application for asylum in Ireland made by a child. It focuses on the international law and policy on asylum seekers, Ireland law and policy on asylum seekers, children seeking asylum in Ireland, family reunification of unaccompanied children, and deportation of unaccompanied children.

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Introduction
As a general principle and practice of international law states do not have an obligation to accept
non- citizens to cross their borders and enter into their country even if they are adults or children.
1 However, the exception to this general rule has been provided to those that are seeking asylum
pursuant to the imperative imposed on states by the 1951 Refugee Convention and the 1967
Protocol to the Refugee Convention. 2 It is thus imperative to note that Ireland has since agreed
to be bound by the national, international and European legal regulations for asylum seekers.
Migrant children who are seeking asylum in other countries have faced numerous challenges in
enjoying their rights due to their inherent vulnerability. 3 This paper is poised to discuss the legal
status and issues that may arise out of an application for asylum in Ireland made by a child.
International Law and Policy on Asylum Seekers
In making a determination on whether or not to grant an asylum to a child it is prudent to takes
into account the dictates of Article 2(1) of the UN Convention on the Rights of the Child4 which
provides that the best interest of the child is should be the primary consideration when making
the decision concerning a Child’s views. Therefore a state, such as Ireland, bears an imperative
to ensure that the best interest of the child is considered when determining an asylum application
made by a separate child.5 Ideally, in considering the general applications of refugee and asylum
seekers children ought to be given the priority, unless there are compelling reasons for not doing
so.6 The voice and personal concerns of the child seeking asylum must be considered during the
process of determining the asylum application.7 For children who are separated like Marco
1 Vilvarajah et. al. v UK (1991) 14 EHRR 248 para 102.
2 Convention on the Status of Refugees (28 July 1951) 189 UNTS 137 and Protocol on the Status of Refugees, (31
January 1967) 606 UNTS 267.
3 Ursula Kilkelly, Barriers to the Realisation of Children’s Rights in Ireland (OCO 2007) 31-39.
4 Convention on the Rights of the Child (adopted and opened for signature, ratification and accession on 20
November 1989) 1577 UNTS 3 (UNCRC)
5 UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of
Refugees(UNHCR 2011) 41;
6 Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention
7 Article 12 CRC

Antonio the Committee on the Rights of the Child, General Comment No. 6: Treatment of
Unaccompanied and Separated Children Outside Their Country of Origin will also apply to
them. Any decision that is made concerning the application for international protection by a child
must be communicated to him in a language that he understands.8 In addition, decision makers
must also consider the children cannot be able to communicate like adults or explain their
account of events in the manner which an adult would do.
Pursuant to Article 6(4) of Regulation (EU) No 604/2013(“Dublin Regulation”) if a child has
entered into another country unaccompanied by their guardian or family members, and is seeking
fir asylum in the said country, the state has an obligation to immediately find the identity of the
family of the child. It bears noting that article 6(4) of the aforementioned regulation is also
applicable in Ireland.
If the child seeking asylum is not accompanied by a guardian at the time of making the asylum
application, the state in which the child the separated has made the application should appoint an
independent guardian who will be responsible for representing the interest of the child.9 In the
case provided, the immigration and asylum department of Ireland should ensure that Marco
Antonio has a personal guardian who represents his interest as a child during the process of the
application to seek international protection. Rather interestingly, and in compliance with the
international legal regulation a social worker from the Child and Family Agency is already
assisting Antonio in his process of application for international protection.
Ireland Law and Policy on Asylum Seekers
Irish law that regulates the status of determination of asylum seekers in the country is embodies
under Refugee Act 1996 (as amended). During the commencement of the process, the
application for asylum is first considered by the Office of the Refugee Applications
Commissioner (ORAC).10 However, if the application is not granted by the ORAC the asylum
seeker may elect to appeal the determination at the Refugee Appeals Tribunal.11 It is imperative
to note that the EU’s Procedure Directive is also binding on Ireland. Ideally, the directive sets
8 Article 1(A)2 and Article 1 (F) of the 1951 Convention
9 UNHCR, Guidelines on International Protection: Child Asylum Claims under Article 1(A)2
10 section 6, 8, 11 and 13 of the Refugee Act 1996 (as amended)
11 section 15 and section 16 of the 1996 Act (as amended).

down the minimum standards that should be observed when making a determination on granting
an asylum to an applicant.12 Therefore following the application by Antonio Marco ORAC
should observe the minimum standards that have been laid down in the ORAC in making their
determination to grant him international protection. The minimum standards include a guarantee
that the application for international protection will be assessed in a fair and just manner; the
applicant will be given ample opportunity to explain the reasons backing his application and that
the applicant will be given a right to be interviewed.13 It is worth noting that the directive does
not have sufficient provisions guaranteeing the protection of children who are seeking
application for asylum. In Ireland an international protection as an asylum is offered to a person
who qualifies to be a refugee. Further, the law provides that if an applicant will be found not be
in need of international protection as a refugee he may be offered subsidiary protection.14
Subsidiary protection implies that the person seeking asylum in the country does not qualify to
be a refugee. This implies that Antonio Marco may be granted international protection as a
refugee who is an asylum or subsidiary protection.
Children seeking asylum in Ireland
Pursuant to the Section 8(5)(b) of the Refugee Act 1996, and the regulation 4 of the Asylum
Procedures Regulations 2011 it is incumbent upon the Child and Family Agency to appoint a
representative of the child who will accompany him during the determination of the status of the
asylum application and during the interview process.15 Antonio Marco, being a minor of 16 years
has already been allocated representative who is helping out in the process. As a matter of fact
the representative of the child can make the application for asylum on behalf of the child who is
not accompanied by their family or guardian. Against this, backdrop it is important to note that
the Irish legislation on the determination status of asylum seekers provides minimum express
provisions that recognize children that are seeking asylum.16
12 Council Directive 2005/85/EC of 1 December 2005 on minimum standards
13 M.M. v Minister for Justice, Equality and Law Reform[2013] IEHC 9 (23 January 2013).
14 S.I. No. 518 of 2006 European Communities (Eligibility for Protection) Regulations 2006 and S.I. No. 426 of
2013 European Union (Eligibility for Protection) Regulations 2013.
15 Head 33 of the General Scheme of the International Protection Bill
16 Ní Raghallaigh, M., Foster Care and Supported Lodgings for Separated Asylum Seeking Young People in Ireland:
Theviews of young people, carers and stakeholders(Dublin: HSE/Barnardos, 2013).

Unaccompanied children seeking in asylum in Ireland are arouse two legal areas of concern
namely, refugee law and child care law.17 Ireland is guided by section 14 of the International
Protection Act 2015 which provides that any person that is under the age of 18 and is seeking
international protection will be considered to be a child. Further where the child is not
accompanied by any family or guardian special care will be afforded by the Child Family
Agency.
When dealing with an application for international protection by a minor such as Antonio it is
prudent that the ORAC consider the best interest of the child according to the legal regulation
above.18 In addition, the personal representative of the child should ensure that he or she explains
to the child in a clear language that he understands the process that is involved in determining the
status of his application for international protection. Therefore, Antonio’s personal representative
should explain to him the potential outcomes of the determination and the manner in which he
should prepare himself for the interview. The nature of the questions that are asked by the
interviewer must be within the legal framework and the when asking the said questions the
interview must consider the special needs of the child if any.19 The decision of the determination
of the status of the child’s application must be made by a person who has the knowledge of any
special needs that the child may have and make the decision according those needs.20
Conversely, according to the Guidance Note 2015/1, Appeals from Child Applicants issued by
the Refugee Appeals Tribunal the best interest of the child is paramount in determining the status
of the application for asylum made by a child.21 The guidance also provides that one should be
aware of the forms of persecution that are peculiar to children22 and should ensure that the child
is regarded as a child first and second the child is regarded as an asylum seeker.
Family Reunification of Unaccompanied Children
17 Arnold, Samantha, and Muireann Ní Raghallaigh. "Unaccompanied minors in Ireland: current law, policy and
practice." Social Work & Society 15, no. 1 (2017).
18 Supra n 4
19 Reg. 4 of the 2011 Regulations
20 Reg. 4(b) of the 2011 Regulations and Reg. 19 of the 2013 Regulations.
21 Guidance Note 2015/1, Appeals from Child Applicants(January 2015), para. 3.1.
22 Guidance Note 2015/1, Appeals from Child Applicants(January 2015), Par 3.3

Another legal issue that arises out of separated children seeking asylum in Ireland is family
reunification. This has been adequately addressed in international law and Irish domestic law.
According to the UN Committee on the Rights of the Child children there are numerous adverse
effects of separating children from their parents since they are the primary caregivers. It is
important to note that family reunification for asylum seekers is not a right per see. However,
state parties to the CRC have an obligation to apply faire and transparent process when
considering family reunification.23 Further, they are obliged to take in to account the best interest
of the child and promote the concept of family unit.24
Article 41.1.1° and Article 41.1.2° of the Irish Constitution promote the idea that each individual
has a right to family and that the family unit is fundamental in society. It should be borne in mind
that family members of a child to do not have an absolute right to take custody of care of their
child or family member in Ireland. Once a person a child has been granted a refugee status the
ORAC should also consider an application made either by the child or his representative for
family reunification. According to Mr. Justice Hedigan in POT v Minister for Justice, Equality
and Law Reform25 application for family reunification is a right that should be granted without
delay. He noted that two year delay in making a determination for the application of family
reunification after a refugee status has been granted is material delay. This implies that if Marco
Antonio is granted the refugee status in Ireland any application for family reunification that is
made by him or on his behalf should be determined expeditiously.
The refugees that have been granted international protection in Ireland do not enjoy an absolute
right to family reunification. The family member who is to reunite with the child in Ireland must
be a qualifying member within the meaning of the law in Ireland. Ideally, the person that will be
granted leave to reunite with the minor in Ireland must have a significant impact in the family as
a unit.26 A rigorous example is if a child makes an application to be reunited with the parents and
siblings it is likely that it is only the parent that may be allowed to reunite with the child and not
the siblings. This implies that Antonio Marco if given the refugee international protection status
may only be successful in reuniting with his parents and not siblings or other relatives. However,
23 General comment No. 14 (2013)
24 UN Doc. CRC/C/IRL/CO/2 (2006) at paras. 30-31
25 [2008] IEHC 361 (19 November 2008).
26 Cosgrave, C. and Becker, H., Family Reunification: a barrier or facilitator of integration. Ireland Country
Report (ICI, 2013) at p. 59.

he may not be successful in making an application for family reunification if he attains the age of
majority, 18, according to the practice in Ireland.
Deportation of Unaccompanied Children
Every state has power and right to remove non-citizens from its territory under its respective
immigration law. It is important to note that the convention of the right does not provide express
provisions for deportation of children. However, it should be borne in mind that any state that is
seeking to deport a child must consider the best interest of the child under Article 3 CRC, the
right of the child to be accorded a fair hearing under Article 12 of the CRC and obligation to
protect children from arbitrary detention under Article 37(b) of the CRC. A child has a right not
to be detained despite of immigration status. Ireland has a right to deny Antonio the refugee
international protection status even after the applicant has appealed the decision of ORAC at the
Refugee Appeals Tribunal. Ireland refusal to grant the application implies that they may opt to
deport the child. However, in doing so it should take into account the provisions of the CRC
above.
A state considering the deportation of a child should take into account the effect of the
deportation on best interest of the child in question.27 Although the best interest of the child is
paramount it is not the only consideration that should be considered in determining whether to
deport a child or not. A state should give the child a fair opportunity to be heard and involve him
in the decision making process that may lead to his deportation. If a state has decided that it is
going to deport the child, the child has an absolute right not to be placed in detention while
awaiting the deportation.28
The Minister of Justice and Equality bears the discretion to decide on whether or not to deport an
individual from the state.29 The minister is allowed to exercise the power to deport an individual
is the individual’s application for asylum has been declined, if the person has entered into the
country without any permission and if the deportation of the individual serves the common
good.30 Therefore, Marco Antonio may be deported if his application for asylum is not granted
27 Committee on the Rights of the Child, General Day of Discussion: The Rights of All Children in the Context of
International Migration (Geneva: UN, 2012), paras 72-74
28 Mayeka and Mitunga v Belgium European Court of Human Rights (12 October 2006)
29 Section 3(1), Immigration Act 1999
30 Section 3(2)(f)(g) and (i), Immigration Act 1999

and if due to the nature of involvement in criminal gangs in Guatemala his presence in Ireland
may not serve the common good. The Minister may only exercise his discretion to deport an
individual by taking to account the Irish legal regulations and European Convention on Human
Rights.31 According to Dimbo v Minister for Justice and Law Reform32 the minister may only
exercise his power to deport a child by considering the constitutional and personal rights of the
child. In this case, the minister had given an order for the deportation of children who were not
citizens of Ireland back to their country of origin Brazil. Mc Dermott J held that the fact that the
minister had taken into account the constitutional and personal rights of the children when giving
the order for deportation was sufficient and there was no obligation to abide by the best interest
of the child rule. He argued that the UN CRC is not applicable in Ireland and that it does not
form part of the law governing the rights of a child in Ireland.
It is instructive to note that some decisions in Ireland hold the view that the best interest of the
child is not paramount in determining whether or not to deport the child. 33 However, in Omar v
Govenor of Cloverhill34 insisted that the best interest of the child should be considered when
determining whether to deport a child and during the process of deportation of a child even if the
child’s presence in Ireland is illegal. In the foregoing case and mother and his children had
detained by the immigration officers following an order that they should be deported. Mr. Justice
Hogan held the view that the best interest of the children should have been taken into account
and it was not proper to subject young children to detention. This implies that the Minister of
Justice and Equality must consider Marco’s best interest even if his presence in Ireland is illegal.
Suffice to say, pursuant to section 3 of the Immigration Act 1999 has a moral imperative to take
into account the welfare of the child. Notably it can be argued that the welfare of the child test
that has been enumerated under section 3 does not meet the threshold set by the best interest of
the child as it is lower.
In case a deportation order has been issued against a child that is below the age of 18 years he
should be accorded appropriate legal advice by his representative or any other officer. Legal aid
is only rendered to an unaccompanied child if his application for asylum has not been successful.
31 Mullally, S and Thornton, L. “The Rights of the Child, Immigration and Article 8 in the Irish Courts” in Kilkelly,
U. ECHR and Irish Law (2nd ed., Bristol: Jordans, 2009).
32 [2008] IESC 26
33 Dos Santos & Ors v. Minister for Justice & Ors. [2014] IHEC 559 at para. 41.
34 [2013] IEHC 579 (Hogan J, 17 December 2013)

Care of Unaccompanied Children
There are several legal issues that have arisen from the care that is accorded to unaccompanied
children seeking asylum with respect to their. In many case most of them have been subjected to
abuse, mistreatment and discrimination. However, the HSE Equity of Care Policy 200 and the
Implementation Plan from the Report of the Commission to Inquire into Child Abuse, 2009 have
provided that accompanied children should be accorded ‘equity care’. This included the right to
placed in separated hostels but in comfortable and lodgings. Ideally, the two pieces of legislation
advocate for the humane treatment of unaccompanied children and respect for their dignity. It is
imperative to note that the al children in Ireland irrespective of the fact that they may not be
citizens and are awaiting the determination of their application for international protection have
the right to education.
Appealing Decision of ORAC
The decision of the ORAC concerning the determination of the status for the application of
international protection is not final children have the option of appealing a decision which
declined their application at the Refugee Appeals Tribunal in accordance with the section 15 and
16 of the 1996 Act. The tribunal through the guidelines notes has noted that it will ensure that it
gives appeals raised by children a priority over those that are raised by adults. It bears noting that
the tribunal also applies the best interest of the child principle when determining application for
international protection made by children. If the child opts to appeal the tribunal legal
representation is normally offered the child without costs being imposed on the child. Before the
commencement of the hearing it is incumbent upon the tribunal to ensure that it informs the child
in a language that he understands about the nature and meaning of the hearing. This includes
explaining to the child all the steps that are going to be carried out in determining the appeal.
During the proceedings at the tribunal the child has a right to be accorded a fair hearing which
included he right to actively participate in the hearing. His views must during the hearing must
be taken seriously. In K.N.Q. v MJELR and RAT35 the High Court in Ireland found that the
Refugee Appeals Tribunal did not take into account the ground that the child had raised for
seeking the asylum. The High Court found that the tribunal had not even made an age assessment
of the child and that its decision was solely based on mere speculations. The tribunal is therefore
35 [2013] IEHC 117 Unreported High Court Clark J 14 March 2013

advised that it should handle cases of unaccompanied children and the evidence that they tender
with utmost keenness.
In O. (a minor) v MJELR and RAT36 the High Court established the following grounds that
should be considered by the Tribunal when making their determination of the appeal made by an
unaccompanied child.
a) The decision maker must credible evidence showing that the child ha s a well-founded
fear of something from their country of origin. In establishing this ground the decision
makers have to consider the age and maturity of the child question. In this case, Marcos,
by virtue of being 16 years old seems to be a child who has sufficient intelligence to
understand what he is communicating. There the tribunal should pay keen attention the
evidence he may render in case he makes an appeal to them.
b) The evidence that is being given by the minor must be credible in the eyes of the decision
makers. Ideally, it must be logical, coherent and devoid any inconsistencies. The decision
makers have to take into account the non-verbal evidence that may be tendered through
gestures and emotions indicating previous abuse. However, it is important to note that the
non-verbal communications and emotion portrayed by the child should not be used to
persuade the decision makers without any other credible evidence.
c) The decision maker should take evidence of persecution from the perspective of the child.
This stems from the fact that the abuse that a child may view as painful or harmful may
not similar to that an adult may hold a similar view about. Any evidence indicating that
the child underwent some form of torture, violence and abuse must be carefully collected
from the child. It is imperative to note that the decision makers have to consider the
source of persecution of the child. It must present a real danger to the child that his
presence in his country of origin may pose a danger to his life and health. The 2009
UNHCR guidelines provide that there must be evidence showing that the government of
the country that the child is coming from has been unwilling or is unable to stop the
continued persecution of the child. According to the CRC children who are seeking
asylum must be able to demonstrate that they have been persecuted following the ground
of race, religion, nationality, social group and political opinion.
36 [2010] IEHC 151 Unreported High Court Edwards J 5 February 2010

Conclusion
It is evident that the application made by Marcos Antonio is not likely to be successful even at
the ORAC because he may fail to prove the five essential elements of persecution. However,
until the determination of his application he should be first treated as a child and offered with the
basic child support. In addition, even if they consider that he should the minister should take into
account his best interest. Given the above, it can be concluded that Ireland should make
affirmative efforts to strengthen the law that affords protection to unaccompanied children. This
included amending the current legislative regime to conform with international best practices.
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