I will deal first with the Immigration Bill 2003 and then move to the DL decision. The two contentious issues from the human rights perspective with respect to the Immigration Bill are contained in sections 2 and 6.
Section 2 provides for carrier sanctions. Along with the UN High Commissioner for Refugees and with other organisations working specifically in the area of asylum - I understand they made submissions to the committee last week - the commission is concerned about the potential impact of carrier sanctions on persons seeking asylum in the State. Such sanctions thwart legitimate claims to asylum by impeding access to the territory of the State on the basis that a person does not have adequate travel documentation. It is a well rehearsed fact that asylum seekers do not always or necessarily possess adequate travel documentation.
The commission, along with other organisations, is concerned about the imposition of these sanctions in that they might potentially breach a number of fundamental principles of international refugee protection, specifically Article 14 of the Universal Declaration of Human Rights which provides that everyone has the right to seek and enjoy asylum form persecution. Article 31 of the Convention relating to the Status of Refugees, to which this State is party, provides that contracting states shall not impose penalties on refugees, which by definition includes asylum seekers, who have entered the territory illegally. Article 33 of that convention provides for the all important guarantee of non -refoulement, whereby a contracting state is obliged not to send a person back in any manner whatsoever to the country in which he or she fears persecution on account of particular stated grounds.
It has been argued persuasively elsewhere that carrier sanctions where applied to legitimate asylum seekers indirectly breach a State's obligation under Article 33 of that convention. A direct breach would occur if a State were to send a person who had reached the territory back to a country of persecution. An indirect breach, which I am speaking of here, applies in the sense of preventing access to the territory in order to make the asylum claim. Specifically, the requirement not to send a person back to a country "in any manner whatsoever" are the very pertinent words of the convention.
As far back as 1967, the Council of Europe recognised the invidious nature of certain practices which impede asylum seekers from claiming asylum in a member state. In a resolution on asylum to persons in danger of persecution, the Committee of Ministers recommended:
Governments should ensure that no one shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to or remain in a territory where he would be in danger of persecution for reasons of race, religion, nationality, membership of particular social group or political opinion.
Presumably, the Minister for Justice, Equality and Law Reform also recognised that carriers liability should not apply in respect of asylum seekers and refugees by including an amendment to the current Bill in section 2 (9). This amendment, as Members are aware, provides that section 2 is without prejudice to those sections of the Refugee Act 1996 which allow a person who has arrived in the State to seek refugee status and to the discretion of the Minister to admit to the State a person whom the Minister considers in need of protection.
In the Human Rights Commission's view, this amendment does not go far enough to preclude the possibility of a carrier refusing permission outside the State to an asylum seeker to travel to this State on the basis that he or she does not possess travel documentation. That possibility would be precluded only by specifying explicitly in section 2 (1)(c) that the obligation on carriers to ensure non-nationals on board its vehicles possess adequate travel documentation does not apply in the case of a non-national seeking or proposing to seek asylum in the State. The Human Rights Commission therefore urges this committee to consider favourably an amendment to section 2(1)(c) whereby the words “other than a non-national seeking or proposing to seek asylum in the State” would be inserted in the first line after the word “non-national” and before the words “on board”.
The Human Rights Commission is very concerned about the provisions in section 6 which would deem an application to be withdrawn due to a failure of an asylum applicant to comply with procedural requirements, for example, where an asylum seeker fails to inform the Refugee Applications Commissioner of his or her address within five working days of the making of the asylum application. Section 6 also provides that a determination of refusal to grant refugee status can be made in respect of applications deemed to be so withdrawn, and a refusal of refugee status in those circumstances will not be subject to appeal. Similar provisions apply in the context of persons who fail to present for first-instance interviews or appeals.
The Human Rights Commission appreciates the problems posed for the administration of the asylum procedure by the failure of applicants to comply fully with these procedural requirements. However, the Bill goes too far by providing that a failure to abide by procedural requirements can result in substantive rejection of an asylum claim.
Arguably, this provision might conflict with Article 3 of the European Convention on Human Rights, which provides for the right that no one shall be subjected to torture, inhuman or degrading treatment or punishments. In a case against Turkey in 2000, known as Jabari v. Turkey, the European Court of Human Rights held that Turkey was in breach of Articles 3 and 13 of the Convention by reason of a provision in domestic law which required an asylum seeker to submit his or her application to the police within five days of arrival in Turkey. Under Turkish law, failure to do so meant that the person could not be accepted as a refugee, and the Court of Human Rights in Jabari was considering the application of this law to a woman who had failed to comply with this requirement, and accordingly faced return to Iran, where she feared being sentenced to death by stoning, for committing adultery in that country. The Court of Human Rights held that if Turkey deported her to Iran, it would be acting in violation of Article 3 of the Convention, which provides for the right to be free from torture, inhuman and degrading treatments. The court judgment states that “the automatic and mechanical application of such a short time limit for submitting an asylum application must be considered at variance with the protections of the fundamental value embodied in Article 3 of the Convention.”
The Court of Human Rights also found a breach of Article 13 of the Convention, which guarantees the right to an effective remedy for anyone whose Convention rights and freedoms are violated. The only remedy open to the applicant in this case was that of judicial review, which the court deemed to be inadequate in the circumstances. In short, there was no assessment made by the domestic authorities of her claim to be at risk if removed to Iran. Accordingly, the message from Strasbourg jurisprudence seems to be that measures taken for administrative convenience must be proportionate. Applying the logic of that decision to the relevant provisions of section 6 the Human Rights Commission takes the view that similar concerns may be raised about the possibility of rejecting an asylum application simply on the basis of a failure by an applicant to fulfil this procedural requirement. The commission therefore supports the suggestion made by the UNHCR that such applications be considered abandoned and closed, rather than deeming them to be withdrawn and hence rejected. Whenever an application is considered then to have been abandoned, this should not prejudice the applicant from applying to re-enter the asylum procedure. In the commission's view, the right of a person to apply to re-enter the procedure in order to have the substantive merits of the application assessed by the Refugee Applications Commissioner, should be made explicit in this Bill. Section 17(7) of the Refugee Act 1996 does not at present reflect that position, since the right to apply to re-enter the procedure is entirely at the discretion of the Minister for Justice, Equality and Law Reform.
Turning to the decision in DL v. the Minister for Justice, Equality and Law Reform, the commission is very concerned about the potentially damaging effect which this decision might have on people previously given temporary permits to reside in the State prior to the judgments. Most of these people had made decisions and personal arrangements based on their understanding on the legal position prior to the DL decision. Temporary residence was routinely granted in this State to the non-national parents and siblings of Irish-born children prior to that decision, based on an expansive interpretation of the Supreme Court’s previous decision in the case of Fajujonuv. the Minister for Justice, Equality and Law Reform. Many of the people who had been granted temporary residence on the strength of that case abandoned their asylum applications in the expectation that they would in time be granted the right to remain in the State on a permanent basis.
Even though the Supreme Court held in DL that deportation decisions do not per se interfere with the family’s constitution and authority as protected by the Constitution, in the view of the Human Rights Commission deportation is likely at the very least to be extremely disruptive in terms of the right to respect for family life as protected under international law. The commission therefore considers that no family whose present position derives in part at least from a decision or other act of a State agency based on a more expansive understanding of the Fajujonu decision than that which was ultimately adopted by the Supreme Court in DL, should be affected to their detriment by the court’s decision.
The Minister for Justice, Equality and Law Reform has stated that each case will be examined on its merits. In the view of the Human Rights Commission, the Minister should adopt an explicit policy not to deport persons who have already been granted residency in the State when the period of residency expires, except for compelling reasons relating to the conduct of the individuals themselves. Such a decision in the view of the commission should be announced at an early date to allay anxiety among parents who have been granted residency to date. The commission would also recommend that where the parents of non-national children had withdrawn their applications for asylum based on their previous understanding of the legal position, they should be entitled to re-enter the asylum procedure as of right. At the moment it appears that persons who withdrew their applications at the appeal stage may only reinstate their applications with the consent of the Minister for Justice, Equality and Law Reform under section 17(7) of the Refugee Act. However, in line with the commission's comments on the Immigration Bill 2002, withdrawal of an application based on a mistaken view of the law should not prejudice the substantive basis of a claim for asylum.
With respect to the position of children born in Ireland to non-national parents after the DL decision, there is also a concern about the possible deportation of those children and their parents to countries where they could still face serious harm as opposed to persecution, which would give rise to an asylum claim. A well-founded fear of persecution would give rise to the possibility of making an asylum application, but adequate provision is not made in Irish law for persons in need of complementary or subsidiary protection, persons who do not have a well-founded fear of persecution but who otherwise would face return to serious harm, for instance a natural disaster such as a famine. The situations of such persons who face deportation are put in sharp relief in certain circumstances. Those situations are considered only on their merits at the moment as an aspect of the deportation process under the Immigration Act 1999. The Minister for Justice, Equality and Law Reform has discretion under section 3 of that Act to have regard to humanitarian considerations in making a decision whether or not to deport a person. The Commission suggests that in such situations there is a heavy onus on the Minister to allow the parents of any such child to remain in Ireland to preserve the integrity of the family unit.
