I and my colleague, Ms Emilie Wiinblad-Mathez, will do our best to answer members' questions once my presentation has been completed. I thank the joint committee for inviting the United Nations High Commissioner for Refugees to present and discuss the contents of our comments to the new draft legislation, the Immigration, Residence and Protection Bill 2008. To facilitate our discussion, members have been given a copy of the 40 page document the UNHCR produced as a commentary on the Bill and a copy of this statement.
My statement intends to be a brief summary of the main topics addressed in our comments. As members will be aware, the United Nations High Commissioner for Refugees was mandated by states in 1950 to assist and guide signatories of the 1951 Refugee Convention in meeting their international obligations. Our comments on the Bill centre on three key articles of the 1951 convention, namely, Article 1 which defines who refugees are both in inclusive and exclusive terms, Article 33 which outlines the principle ofnon-refoulement prohibiting the sending of any person back to a country where they would be persecuted, and Article 31 concerning the special exceptions for refugees in relation to waiving penalties for unlawfully entering or staying in a country due to their special circumstances.
Ireland acceded to the 1951 Refugee Convention and its 1967 protocol in 1956 and 1968, respectively, and has co-operated extensively with the UNHCR, especially since the mid-1990s when Ireland first experienced an increase in asylum applications. A key milestone in Irish asylum legislation was the adoption of the 1996 Refugee Act which largely complied with the 1951 Refugee Convention in relation to the definition of "refugee", respect fornon-refoulement, detention and establishment of asylum institutions which aim to include, among other matters, a fair and efficient asylum procedure and adequate reception structures. The UNHCR comments seek to ensure the new Act preserves positive features of the current Irish asylum process while capitalising on the unique opportunity to address key aspects of the asylum system which call for a number of improvements, in particular in relation to introducing subsidiary protection in a single protection procedure but including provisions for separated children, family reunification and victims of trafficking and torture.
It is important for understanding the UNHCR's comments and the nature of international obligations placed on the state in the 1951 convention to first explain what we call the "declaratory nature" of refugee recognition. This concept, which is fundamental to refugee law, emphasises that, in accordance with international law, one is a refugee not because one is recognised; one is recognised because one is a refugee. As a result, state parties to the 1951 convention are requested to put in place refugee status determination procedures which will be effective in the identification of those persons whose cases meet the criteria of the convention's refugee definition. Until the moment the process of determination of one's status is completed, states are expected to treat the asylum seeker as a potential, de facto refugee. Hence, states have an international obligation to guarantee that all asylum seekers will be granted access to the territory and asylum procedure and will not be returned to a place where they fear persecution before an assessment of the merits of their claims for protection is completed. Our comments on access to asylum procedures must be read with this concept in mind. They centre around issues such as allowing a defence for a carrier if found to have assisted a refugee in distress to reach the country, not excluding any groups of persons from having their case heard and ensuring the substance of all claims is heard.
The issue of access is also linked to our comments onnon-refoulement which build on the logic that returning a person whose claim has not been assessed on its merits may cause breaches to the non-refoulement obligation. The UNHCR recommends making amendments in the Bill to ensure full compliance with the non-refoulement principle. In particular we refer to extradition, section 53, exclusion orders, section 117, assessment by a judge before a person is returned, section 71, and the procedures around withdrawal of a claim and making further applications, sections 80, 87, 89, 104 and 118.
Respect fornon-refoulement also relies on the correct use of the refugee definition in relation to both inclusion and exclusion. In this respect, it is important to highlight the additional challenge Ireland faces with the introduction in the Bill of a single procedure to determine refugee status and subsidiary protection status, the latter status being the long-awaited harmonised legal status complementing the Refugee Convention status in the European Union. To ensure high quality decisions within this new system, the UNHCR recommends some important changes to the Bill to assist the institutions carrying out refugee determinations. We point to our recommendation on the refugee definition on pages 12 to 17 of our comments and to procedural issues addressed on pages 18 to 26 of our comments. In particular, we draw members’ attention to our comments on sections 53, 61, 63 and 64 where the current wording of the Bill limits the scope of the refugee definition as found in Article 1 of the 1951 convention. I ask the committee in its deliberations to take a close look at this concern and bring the Bill in line with the 1951 convention, in particular with the definition of persecution, actions of protection and exclusion.
The use of detention and the provisions regarding penalisation for unlawful entry or stay in a country is another significant key area addressed by the 1951 convention. Based on accepted international refugee and human rights principles, detention should be a last resort and an exception based on an individual assessment of particular cases. Detention, purely on the basis of administrative shortcomings would, in the UNHCR's view, not be correct or comply with international standards. Our submission's paragraphs 70 and 71 regarding detention highlight this.
We recommend detention must observe core human rights principles, including the right to due process of law, and the basic individual right of any detainee that the terms for detention be defined and subject to judicial review.
The UNHCR believes the Bill poses an opportunity to introduce several important improvements to the current national protection regime, not least of which is the proposed introduction of a single procedure. However, several additional aspects of the Bill would, in our view, be greatly improved by our relevant recommendations. These are in the area of protection of children, family reunification and the protection of victims of human trafficking and torture.
In our submission we highlight the issue of child protection, in particular children separated from their parents. The best interest of the child must be determined at all levels of the asylum process. While the Bill suggests improvements in some areas, we ask the Legislature to go further in defining the framework for what must be a collective effort to protect children from the scourge of trafficking, forced labour and sexual exploitation.
Key areas where more can be done include reception and accommodation of separated children, family tracing and reunification, guardianship and foster care, as well as defining the best way to undertake the formal determination of the best interests of the child. We ask that the Bill address the issue of the lack of an appropriate alternative to the asylum application for children who have no other legal basis for staying in the country.
Regarding family reunification, our submission comments on how existing procedures have resulted in a backlog of applications and, in many cases, a minimum of a two-year delay in decisions. The unity of families, while not covered in the 1951 convention, is a key right for refugees and will play an important part in their integration prospects in Irish society.
Our submission also referred to other vulnerable groups, including victims of human trafficking. The UNHCR would like to see a Bill which guarantees the protection of victims of trafficking and their access to the asylum system, where appropriate, with provisions flexible enough to meet the needs of those who have experienced torture, inhuman and degrading treatment, including needs for medical assistance. In this regard we refer to our comments on page 24 of our submission.
I thank the committee for its attention.