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