PILA Bulletin: 02 December 2015
Maria Hennessy is a Legal Officer at the Irish Refugee Council Independent Law Centre. Click here for the Irish Refugee Council’s recommendations on amendments to the International Protection Bill 2015. Click here to read the Irish Refugee Council’s press release on the International Protection Bill 2015.
The International Protection Bill 2015 represents a significant departure from the current bifurcated system of first examining refugee status and then subsidiary protection which has been the subject of considerable criticism over the years. Under the proposed legislation refugee status and subsidiary protection will be examined in a single procedure leading to a more streamlined and efficient system. Although this is a welcome development it will not be a panacea for all of the deficiencies within the asylum procedure unless it respects fundamental principles and human rights standards[1] including the following:
1) The right to asylum (Article 18 of the Charter of Fundamental Rights) – this requires not only respect of the principle of non-refoulement but also effective access to the asylum procedure both within the State and at the frontiers of the State for those seeking international protection. However provisions within the Bill concerning the conduct of preliminary interviews including at the frontiers of the State, inadmissibility procedures, the lack of possibility for both accompanied and separated children to claim asylum on their own behalf and the paucity of provisions on the training and qualifications of relevant personnel involved in the protection procedure as well as an absence of gender-sensitive asylum procedures and special procedural safeguards for particularly vulnerable people raises the question as to whether this will be respected in law and in practice.
2) The right to an effective remedy (Article 47 of the Charter of Fundamental Rights) – this requires access to a thorough review of the legality of a first instance decision by way of an independent appeal.[2] Under the proposed Bill there will be no independent appeal when permission to remain is refused by the Minister despite the fact that such decisions may involve human rights obligations as well as no independent appeal for the refusal of family reunification applications. This will inevitably lead to lengthy and expensive proceedings by way of judicial review in the Courts. Furthermore, the current grounds for accelerated appeals are widely drafted including complex concepts of law such as internal relocation findings as a reason for a shortened time-limit for submitting an appeal with no oral hearing.[3] The Irish Refugee Council proposes recommendations to remedy these deficiencies by way of including new appeal rights and proposing the deletion of internal relocation as a ground for accelerating a protection appeal which would enhance respect of the right to an effective remedy.
3) The right to good administration (Article 41 of the Charter of Fundamental Rights and general principle of EU law) – this contains many aspects including the right to be heard and the right of any person to have his or her rights handled impartially within a reasonable period of time. This principle requires for example that the Minister’s discretion to omit a personal interview is limited so the possibility in the Bill of omitting a child’s interview on the basis of the subjective opinion of an authorised officer as to the age and maturity of the child raises cause for concern in light of the child’s right to be heard. Similarly, the provisions regarding preliminary interviews, personal interviews and inadmissibility do not contain sufficient procedural safeguards to ensure that people denied access to the asylum procedure are given the right to be fully heard due to the lack of provisions on the training and qualifications of the personnel involved. Furthermore, the proposed abolishment of the Office of the Refugee Applications Commissioner and the subsuming of its powers within the Department of Justice means that independent oversight and review are now missing. The Irish Refugee Council recommends that an independent Refugee Advisory Board is established similar to s. 7A of the Refugee Act 1996 as amended and enacted upon to oversee the application of the single procedure.
4) The principle of effectiveness (General principle of EU law) – this requires that national rules and procedures should not render the exercise of EU rights impossible in practice. Therefore, whenever information is provided in the Bill on the rights of asylum seekers and refugees there should be an explicit reference to information on how to assert those rights in practice as well. Failure to provide information on how to access one’s entitlements makes them meaningless in practice. The designation of safe countries of origin and inadmissibility procedures also raises fundamental questions as to the effectiveness of the right to asylum itself in the Bill.
Overall, the Bill as currently published does not respect these principles and human rights obligations within the context of a single procedure. The right balance has not been struck between respecting the rights of refugees and asylum seekers and the right of the State to determine who enters and remains in the country. As presently drafted the Bill will result in detrimental human and financial costs. With our proposed amendments for reform there is an opportunity for legislative reform which is compatible with Ireland’s international human rights obligations. In the context of the biggest refugee crisis since World War II we ask that this opportunity is taken to create an Irish protection procedure which gives asylum seekers and refugees the respect and humanity they not only deserve but are entitled to. For more information on the Irish Refugee Council’s recommendations on the International Protection Bill 2015 click here.
[1] The principles and human rights standards cited in this article are comprised of more elements than that which is raised in the context of the single procedure. For brevity sake the author has focused on selected aspects relevant to the single procedure under the proposed International Protection Bill. For more information on fundamental rights and asylum procedural law see ECRE and the Dutch Council for Refugees,The application of the EU Charter of Fundamental Rights to asylum procedural law, October 2014.
[2] CJEU, Case C-69/10 Samba Diouf v. Ministre du Travail,de l’Emploi et de l’Immigration, 28 July 2011.
[3] It is noted that Section 41(1)(b) of the Bill enables the Tribunal to hold an oral hearing where it is of the opinion that it is in the interests of justice to do so which may alleviate this concern in certain circumstances but this will be dependent on the individual opinion of the Tribunal member.