Guest Article by Immigrant Council of Ireland's Hilkka Becker: Immigration and the right to an effective remedy – Article 13

Hilkka Becker is the Senior Solicitor with the Immigrant Council of Ireland – Independent Law Centre. She is a graduate of law of the University of Hamburg and is also qualified to practice law in Germany. Hilkka holds a post graduate diploma in employment law from UCD and a Certificate in Judicial Review from the Law Society of Ireland.  She was admitted to the roll of solicitors by the Law Society of Ireland in 2003. Hilkka is a member of the European Immigration Lawyers’ Network and has worked as a trainer and international legal consultant with the International Organization for Migration (IOM) and the Council of Europe. She is a board member of AkiDwA, a member of the Law Society’s Human Rights Committee and a member of the Litigation Committee of the Dublin Solicitors’ Bar Association. She teaches immigration and citizenship law at the Law Society of Ireland. 

It is of grave concern to those seeking to defend the human rights of migrants and members of their families in Ireland that access to justice for those seeking to challenge immigration related decisions, for example visa refusals, refusals of leave to land, refusals of residence permits and the issuing of deportation orders, is severely limited.

Issues which prevent the exercise of procedural rights for migrants in Ireland include lengthy delays, restrictive time limits, admissibility rules as well as the fact that the High Court, as part of judicial review proceedings, is not in a position to review the merits of a case and cannot deal with questions of fact. Unlike an expert administrative tribunal, the High Court does not have the power to alter or vary an administrative decision.

So the question is, do the procedures that are available in Ireland in this area of law meet the standards of the ECHR, and in particular of Article 13?

In the case of Chahal v. the United Kingdom (1997) 23 EHRR 413 the European Court of Human Rights observed that Article 13 [of the ECHR] guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order”.

According to the Court,the effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (…)”.

This view gained even more support recently in the cases of M.A. v. Cyprus (Application No. 41872/10, 23 July 2013)and De Souza Ribeiro v. France (Application No. 22689/07, 13 December 2012). In the latter case, concerning the removal of a Brazilian national residing in French Guiana and his inability to challenge the order before he was removed from French territory, the Strasbourg Court confirmed that:

“(W)here a complaint concerns allegations that the person’s expulsion would expose him to a real risk of suffering treatment contrary to Article 3 of the Convention, in view of the importance the Court attaches to that provision and given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised, the effectiveness of the remedy for the purposes of Article 13 requires imperatively that the complaint be subject to close scrutiny by a national authority, independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and reasonable promptness.

In such a case, effectiveness also requires that the person concerned should have access to a remedy with automatic suspensive effect (…)”.Interested readers should also see Čonka v. Belgium (Application No. 51564/99, 5 February 2002), Gebremedhin v. France (Application No. 25389/05, 26 April 2007) and Hirsi Jamaa & ors v. Italy (Application No. 27765/09, 23 February 2012).

The Court contrasted this with expulsions which are challenged on the basis of alleged interference with private and family life and held in that regard that “(…), it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect”.

It stressed however that Nevertheless, in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the alien’s right to respect for his private and family life, Article 13 in conjunction with Article 8 of the Convention requires that States must make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality”.

In light of the above it seems clear that there are a number of shortcomings in the way in which migrants’ rights to family life as guaranteed by Article 8 of the ECHR and other rights under the Convention are dealt with in the current Irish system and that they may not be adequately addressed by way of judicial review in the High Court.

It is particularly obvious that while injunctions restricting the deportation of an individual migrant may be made by the High Court, the lodging of judicial review proceedings does not have automatic suspensive effect as seems to be required by Article 13 ECHR, at least when read in conjunction with Article 3 ECHR.

 

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