N. Ireland High Court quashes UK Border Agency decision

On 14 August Northern Ireland's High Court quashed the UK Border Agency's decision to return a Sudanese asylum seeker family to the Republic of Ireland (ROI). The family initially applied for asylum in the ROI in 2010 on the basis that they would face persecution in their home country as non-Sudanese Dufaris. Their application was rejected in 2011 and the family then applied for subsidiary protection. At the same time they applied for and were granted asylum in Northern Ireland. The UK Border Agency sought to return them to ROI under the Dublin II Regulation. According the Dublin II Regulation, applications for asylum should be processed in the first safe European country reached by asylum seekers. The family challenged the Border Agency's decision. They argued that the Agency should exercise their discretion not to return the family to ROI, due to the Republic's low recognition rates and poor conditions in Direct Provision.

Stephens J in the High Court of Northern Ireland was highly critical of the ROI's system of asylum, describing Ireland’s low acceptance rate of asylum claims as “disturbing”. The applicants claimed that the poor conditions and long duration of stays in Direct Provision amounted to violations of articles 4 and 7 of the European Union Charter of Fundamental Rights. Article 4 prohibits torture and inhuman or degrading treatment or punishment while Article 7 protects privacy and family life. Stephens J noted the poor conditions in Direct Provision, such as forced idleness through the prohibition of employment, low subsistence allowance and isolation. However he stopped short of declaring the conditions a violation of the Charter of Fundamental Rights, stating “It is not for the courts in this jurisdiction to determine whether the evidence of conditions in Direct Provision accommodation amounts to a breach of Articles 1 and 7 of the Charter [EUCFR]. Those are questions for the courts in Ireland”.

He did however allow the application on the grounds that returning the family to Direct Provision in the Republic of Ireland would not be in the best interests of the children involved. Stephens J observed a number of factors including the physical and mental health risks posed by Direct Provision and the hostile nature of Direct Provision for ordinary family life. He noted that the children in the family would not be able “to develop their own sense of belonging and separate identity” while living in Direct Provision in the ROI.

Commenting on the case Sue Conlan, CEO of the Irish Refugee Council said “This decision is a sad, but accurate, reflection of a system that is failing to protect the best interests of children.  The reality is that asylum seekers can live independent lives in Northern Ireland, while just a few miles over the border they are forced to live in a state of institutionalised poverty.  Direct Provision simply is not suitable for families and vulnerable people.”

Bulletin readers may recall that the legality of Direct Provision in Ireland is being challenged by another asylum seeker family. That family contend that Direct Provision has no legal basis and that it violates their rights under both the Constitution and the European Convention on Human Rights. The outcome of this case may have significant impact on the continued operation of the Direct Provision system.

Click here to read the full judgment.

Click here to read a press release from the Irish Refugee Council about the case.

Click here to read an opinion piece in TheJournal.ie by Nasc Legal Officers Claire Cumiskey and Fiona Hurley. 

Click here to read a Europa summary of the Dublin II Regulation. 

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