Times Change

Quarterly Political & Cultural Magazine

Mean-minded law does nothing for human rights protection

John Walsh

In less than ten years, Ireland's experience of migration has been completely reversed. Historically, the emigration of the Irish, predominantly from rural areas, had become a given. The exodus allowed countless Irish people to escape economic and social breakdown and to start again, under the protection of another state.

While the experience of emigration is widespread and common, immigration on any extensive, prolonged scale was virtually unknown until recently. According to statistics from the Department of Justice, Equality and Law Reform, just 31 people applied for asylum in Ireland in 1991; this rose to 39 in 1992 and 91 in 1993. There were notable increases in the following years, to 362 in 1994; 424 in 1995; 1,179 in 1996 and 3,883 in 1997. In 1998, 4,626 applications were lodged.

As the numbers of individuals seeking asylum in Ireland began to rise, it quickly became apparent that a system of structures to deal with applicants and process their claims simply didn't exist. There was no appropriate legislation on the statute books; the admittance of non-nationals was regulated by the outdated Aliens Act, 1935.

The 1935 legislation granted the Minister for Justice extensive powers, by means of an 'aliens order', to prohibit non-nationals from entering 'Saorstát Éireann' and to impose restrictions on their movements within the State. It conferred powers up to and including the power of arrest and detention upon customs officers, the army and gardaí. Most contentiously, it allowed the Minister to make sole provision for the deportation and exclusion of individuals from the State.

Many aspects of the 1935 Act were highly problematic from a human rights point of view: deciding whether or not to admit a non-national, potentially a life or death situation, should not be decided by a process as arbitrary and crude as Ministerial order. This system is not subject to parliamentary scrutiny and the Minister need not be accountable for his/her actions. Furthermore, an Act which makes no reference to what have become internationally accepted norms of refugee protection, should not remain the primary legislation dealing with this issue.

Coming as it did more than 25 years before the 1951 Geneva Convention on Refugees and long before the evolution of a related corpus of international law, it is not surprising that the protection of refugees and human rights do not feature at all in the 1935 legislation. The drafters of the 1935 Act cannot be blamed for failing to refer to what had not yet occurred; the legislation is simply a product of its time. What is most alarming, however, is that successive Irish governments continued to rely upon the Aliens Act, almost to the present day, decades after the emergence of the key international protections of human rights, most importantly the Geneva Convention, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the UN Convention against Torture.

In 1985, the Department of Justice wrote to the UNHCR in London, outlining non-statutory procedures for dealing with asylum applications. Although this letter was found by the Courts to have the force of law, human rights organisations justifiably argued that neither pieces of correspondence nor 60 year-old laws should form the basis of the State's asylum policy. Pressure began to mount for legislative change. Despite the crisis, new legislation was not passed until June 1996.

The Refugee Act, 1996 was, however, described as 'one of the most progressive models of refugee legislation in [Europe]' (Faughnan, 1999: 12) and as marking 'a major advance on refugee protection in Ireland' (Collins, 1997: 102). One of its most radical provisions was the decision to broaden the definition of refugee, beyond that of the Geneva Convention, so that 'membership of a particular social group' would extend to membership of a trade union, being either male or female, or having a particular sexual orientation. The Act also addressed the right to work for those granted refugee status, and extended rights of access to medical care, social welfare benefits, the courts and membership of trade unions. Most importantly, the legislation incorporated, for the first time in Irish law, the principle of 'non-refoulement', as outlined in Article 33 of the Geneva Convention, meaning that individuals could not be returned to countries where they would be at risk of persecution.

Despite a number of serious flaws, it is undeniable that the Refugee Act, 1996 marked a watershed in Irish asylum policy. It incorporated key international provisions of refugee protection into Irish law and set out a detailed statutory framework and appeals process.

While it has become common to criticise the present Fianna Fáil/Progressive Democrat government's handling of the refugee question, an action of the previous Fine Gael/Labour/Democratic Left coalition considerably worsened the situation for asylum-seekers and undermined the spirit of the Refugee Act. In what has been described as 'a desperate salvo on the day she relinquished office' (Clancy, 1997: 6), the former Minister for Justice, Nora Owen, abolished the Common Travel Area between Ireland and the United Kingdom by way of an Aliens Amendment Order. The effect of the Order was to grant immigration officers powers to refuse entry to all persons arriving from Northern Ireland or Britain. The government also decided that it was reverting to correspondence with the UNHCR to form the basis of its asylum policy: on the same day that she made the Order, Mrs. Owen wrote to the London office of the UNHCR, outlining a new non-statutory procedure for asylum-seekers arriving from Northern Ireland and Britain.

There are a number of problems with this approach. First, it is difficult to comprehend how the same government which enacted the Refugee Act (itself containing provisions on immigration control) could proceed to abandon that legislation. Second, as expressed by the Irish Refugee Council, the new procedure may violate Ireland's obligations to provide minimum safeguards to asylum seekers under recognised principles of international law, by ignoring such safeguards as laid out in the Refugee Act. Third, human rights protection has been dealt another blow by the fact that responsibility for immigration control has been handed over to plain-clothes gardaí, many of whom 'clearly have little or not training in dealing with refugees and asylum seekers' (Collins, 1997: 107). Finally, the fact that the new approach blurs the distinction between immigration and asylum risks creating the impression that all asylum-seekers are involved in illegal activity.

The Fianna Fáil/Progressive Democrat government, which took office in June 1997, continued the restrictive approach initiated by its predecessor. On 29 August 1997, the new Minister for Justice, John O'Donoghue, announced that certain sections of the Refugee Act were to be implemented. On the face of it, this appeared to be a positive move, but closer scrutiny showed that this was not the case: among the parts of the Act to be implemented was Section 22, dealing with the Dublin Convention, the instrument by which asylum-seekers could be removed from Ireland to other EU States. Various authors have described as 'ironic' a situation where 'the only comprehensive legislative procedural statement which exists in Irish law is one dedicated to making it easier to remove applicants from the State rather than one guiding the positive identification of protection needs' (ICJP/Trócaire, 1997: 19; Clancy, 1997: 7).

Concerns that the Refugee Act had been allowed to wither away were heightened by the announcement, in December 1997, that the Department of Justice was implementing new non-statutory procedures for dealing with asylum applicants. Once again, these procedures were set out in the form of a letter to the UNHCR in London. The preamble to the letter indeed referred to the Refugee Act, but went on to speak of the imminent 'introduction of statutory procedures to deal with applicants for asylum in the State'. Once again, asylum-seekers were left without any statutory protection and the guidelines raise serious concerns about the transparency of the process: in fact, they amount to a clear and serious erosion of human rights standards.

In the face of criticism by human rights organisations, the Department of Justice made considerable progress during 1998 towards speeding up the asylum determination process, announcing the appointment of a further 144 people for asylum and immigration related work (Faughnan, 1999: 14). Concerns were expressed, however, about the suitability of many of the appointees: one commentator doubts that a strong commitment to human rights in inherent in an advertisement which seeks 'former members of the Civil Service, Garda Síochána, or similar relevant public service employment who retired on pension' for such sensitive positions (Clancy, 1997: 6). A new building dedicated to the asylum process was opened in Dublin in October, with the intention that such a 'one-stop shop' would bring together legal, asylum application and appeal procedures in one building, along with the Refugee Legal Service (RLS) and the UNHCR.

In the absence of legislative change, however, it is unsurprising that responsibility for guiding asylum and immigration policy reverted to the courts. In January 1999, a decision with far-reaching and profound implications for the entire Irish asylum and immigration policy was taken by the High Court. Mr Justice Geoghegan found that Section 5 (1) (e) of the Aliens Act, 1935, which granted the Minister the power to authorise deporations, was unconstitutional. The Court ruled that it was repugnant to Article 15.2.1 of the Constitution because it failed to set out policy or principles on foot of which such orders are issued.

The removal by the High Court, and subsequently the Supreme Court, of the Minister's right to issue deportation orders, meant that the entire process had to be abandoned. The Government's response was swift. Within hours of the High Court ruling, the Minister for Justice issued a statement promising new legislation to allow deportations to be resumed. On February 3 the Immigration Bill, 1999 was presented to the Dáil. Its sometimes harsh and draconian tone is consistent with other policy decisions by John O'Donoghue. The Bill's primary concern is deportation: a lengthy section of the Bill outlines the conditions under which the Minister for Justice can issue deportation orders against non-nationals. Entire responsibility for the deportation decision is vested in the Minister: there is no formal right to appeal, although persons on whom deportation orders have been served are allowed 14 days to 'make representations'. Furthermore, although the Bill refers to the prohibition of 'refoulement', as set out in Section 5 of the Refugee Act, 1996, at no point is this provision held to be binding upon the Minister: he or she is merely obliged to 'have regard' to it. The Bill also grants gardaí considerable powers to arrest without warrant and detain non-nationals whom they 'suspect' have contravened a deportation order. Regarding detention, the Bill states that a person shall not be detained 'for a period or periods exceeding 8 weeks in aggregate', by any standards an extremely lengthy period of time.

Opposition amendments to the Bill mirrored concerns about the dilution of human rights protection inherent in it. Many amendments made specific reference to international instruments designed to protect refugees and asylum-seekers, including the Geneva Convention, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the United Nations Convention against Torture. Unfortunately, all were rejected. The Minister also refused to accept another controversial amendment, tabled at Select Committee stage, proposing granting the right to work to asylum-seekers who have spent more than three months in the State. Proposals to reduce drastically the maximum period of detention from 8 weeks were also rejected. During a Dáil debate on the Bill, many of the arguments centred on why the Government had not implemented the Refugee Act in its entirety. The Minister responded that he would be amending the Refugee Act and incorporating it in a later stage of the Immigration Bill. The amended sections were presented by the Minister at Committee State and a new Immigration Bill passed on July 1.

During the course of debate on the Immigration Bill, the Minister for Justice signalled his intent to upgrade the entire Irish system for dealing with asylum and immigration, with the aim of safeguarding the rights of asylum-seekers in need of the protection of the State. It is highly regrettable, therefore, that the primary legislation dealing with the matter is concerned chiefly with deportations. Through its truncated inclusion as an amendment, the status of the Refugee Act has been decimated. Furthermore, as was pointed out by the non-governmental organisation, Comhlámh, the grouping together of asylum-seekers and illegal immigrants in the same legislation is regressive from a human rights points of view, as seeking asylum is not a crime. The Minister missed a golden opportunity to strengthen Ireland's commitment to international human rights protection by rejecting opposition amendments which made clear and specific references to the relevant international instruments. It is indeed necessary, as the Minister has pointed out, for every State to control immigration in some way, but placing primary emphasis on removing people rather than on protecting the vulnerable reveals a mean-minded and ungenerous approach to an issue which is becoming highly important in International Relations.

The eminent commentator Professor Fred Halliday has been suggested that the question of asylum will become the most sensitive and controversial issue of world politics in the next century. By enacting the Immigration Act, 1999, Ireland has missed an opportunity to contribute positively to that debate.

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Revised: 09/02/00