We have moral obligation to help child asylum-seekers

Officials from the child and family agency, Tusla, are travelling to Greece this week to identify and assist unaccompanied asylum-seeking children.

However, there have been hugely varying figures bandied about recently in relation to how many children we could reasonably be expected to accommodate. Tusla chief executive Fred McBride said that while Ireland had gained huge experience over the past number of years in dealing with unaccompanied minors, there would be real challenges in accommodating the suggested number of 200 overnight.

Contrast that with the comments of Muireann Ní Raghallaigh, lecturer in social work in UCD, who said we had one of the best care systems for unaccompanied minors in Europe, with most young people spending an initial period of time in specialised residential units before then moving on to live with foster families.

Ní Raghallaigh made the eminently sensible point that “a perfect package of care is unlikely to be provided to these young people. But an imperfect package is better than none at all”.

These children are in an unimaginably piteous situation – surely we must do as much as we possibly can to help alleviate such suffering.

When assessing the parameters of our moral obligation to these children it must also be remembered that we have a distinct legal obligation to such vulnerable young people under international human rights law.

Article 3 of the United Nations Convention on the Rights of the Child (UNCRC) states: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

Article 20 of the same convention demands “special protection” and assistance be provided by the state for children who have been deprived of their families.

Ireland is bound by the UN Refugee Convention (1951 and its 1967 protocol) which was incorporated into Irish law by the Refugee Act 1996 (soon to be replaced by the International Protection Act 2015).

The 1996 Act defines a refugee as “a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable or owing to such fear unwilling to return to it”.

It is not fair to expect a child to develop and communicate the components of a “well-founded fear of persecution” nor to hold them to the rigorous tests that adult asylum-seekers face especially where they have likely suffered trauma, separation from family, language barriers, possibly abuse and undoubtedly discrimination.

A leading refugee law academic, Guy Goodwin Gill, is of the view that "the welfare of the child and the special protection and assistance, which are due in accordance with international standards, prevail over the narrow concerns of refugee status". Children, by their very nature, constitute a special group and must be treated as such.

Prevailing crisis

When the parents of asylum-seeking children are granted refugee status their accompanying children will almost always be conferred with the same status – the assumption being that their parents have satisfied the “well-founded fear” test for them. What then happens to unaccompanied children who have no-one to speak on their behalf?

It is open to and incumbent upon the Government to bypass the statutory refugee law framework, and to uphold the rights of these children, by designating a cohort of them as programme refugees, given the gravity of the prevailing crisis – the worst the world has seen since the second World War.

A programme refugee is defined in section 24 of the Refugee Act 1996 as “a person to whom leave to enter and remain in the State for temporary protection or resettlement as part of a group of persons has been given by the Government … whether or not such a person is a refugee within the meaning of the definition of ‘refugee’ in section 2”.

What more deserving class of people can there be, than these unaccompanied children, perilously at loose amidst the current turmoil unfurling across the Middle-East, North Africa and the Mediterranean?

In the words of Carol Bellamy, former executive director of the United Nations Children's Fund (UNICEF): "When the lives and the rights of children are at stake, there must be no silent witnesses." Meg McMahon is a barrister