Draft Observations on the Scheme of the Immigration, Residence and Protection Bill

Human Rights Commission

Observations on the Scheme of the

Immigration, Residency and Protection Bill 2006

12th December 2006

Table of Contents

1. Introduction2

2. Relevant international human rights law and constitutional law4

3. General observations of the IHRC17

4. Preamble and general principles19

5. Visas22

6. Entry into the State24

7. Residence permits and registration requirements32

8. Removal from the State36

9. Protection38

10. General45

1.Introduction

The Minister for Justice, Equality and Law Reform referred the Scheme of the Immigration, Residence and Protection Bill to the IHRC pursuant to section 8(b) of the Human Rights Commission Act 2000 on the 8th September 2006. The Minister has stated that this legislative proposal is intended to be a single statutory code for the various stages of the immigration process including visas, entry to the State, protection, residence permits and the process of removal from the State. Under this Scheme it is proposed that the following Acts which currently govern this area will be repealed: Aliens Act 1935; Refugee Act 1996; Immigration Act 1999; Immigration Act 2003 and Immigration Act 2004.

The IHRCwelcomes the referral of this legislative proposal to the Commission for its views on the implications the various proposals will have for human rights.[1] The Commission has previously called on the Government to put in place a comprehensive and coherent immigration policy, based on the principle of respect for human rights of all immigrants and in observance of the highest international human rights standards. The Commission also participated in the consultation process around this legislation, submitting its observations on the Immigration and Residence in Ireland Discussion Document in July 2005. This legislative proposal represents a major reform and consolidation of the current law governing immigration. It is the opinion of the IHRC that all legislative and policy initiatives in the area of immigration are of profound significance to the human rights and dignity of foreign nationals. Immigration law and policy also has implications for the rights of Irish nationals, for instance in the area of family reunification.

The IHRC notes that the Scheme proposes to mix asylum and protection issues with general provisions on the immigration of foreign nationals. In the view of the Commission, there is an inherent tension in putting these two systems in one piece of legislation. The IHRC is concerned that to do so carries the potential to create legal uncertainty for the status of protection applicants, and that access to the protection determination process may be impeded in practice. The IHRC is of the view that care needs to be taken throughout the legislative proposal to ensure that there is clarity around the applicability of certain provisions to protection applicants. The IHRC makes specific recommendations in this regard on Head 4 of these observations.

Some provisions of the proposed Bill are intended to transpose the EU Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection (Qualifications Directive), which Ireland was due to have transposed by the 10thOctober 2006. In addition, Irelandis required to transpose the EU Council Directive 2005/85/EC of 1st December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (Procedures Directive) into its law by the 1st December 2007. The Preamble and Article 3 of the Qualifications Directive specifies that Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection. In addition, paragraph 10 of the Preamble provides that the Qualifications Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. Therefore, in general, the implementation of the provisions of the Directive should be read in light of the evolving body of European human rights law.

While Ireland is obliged to transpose the standards in thetwo EU Directives,it also remains subject to its international legal obligations under the Refugee Convention, European Convention on Human Rights (ECHR) and the UN Convention Against Torture (UNCAT) among other international treaties. When conflicts of obligations arise between those derived from EC law and those derived from pre-existing international human rights treaties, Member States must give priority to pre-existing human rights treaties.[2] The IHRC highlights some areas of concern in this regard throughout these legislative proposals. In addition, the transposition of a Directive should under no circumstances constitute grounds for a reduction in the level of standards already applied by Ireland in the area of asylum law. In line with the principle that the EU Directives set out minimum standards, theIHRC is of the view thatexisting higher standards in Irish law should not be undermined.

Of particular importance in relation to the obligations of the State is the ECHR, which has been given legal effect in Ireland. Section 3 of the European Convention on Human Rights Act 2003 requires every organ of the State to perform its functions in a manner compatible with the State’s obligations under the ECHR subject to any statutory provision or rule of law. There are many areas of the proposed legislation where organs of the State are charged with making decisions which engage important issues of human rights.

Section 2 of these observations sets out a synopsis of the relevant international human rights law and Constitutional law that inform the Commission in the formulation of its views and recommendations in respect of the present Bill. Sections 3-10 of these observations raise areas where the IHRC is concerned that there is lack of compliance with the relevant international human rights standards and makes recommendations in respect of the various Heads in sequential order.

2.Relevant international human rights law standards

The wide range of issues covered in this legislative proposal touch upon different areas of international human rights law and international refugee law. In this section we give a brief synopsis of some of the legal standards that Ireland is bound to comply with that are of central relevance in the context of the legislative proposals under discussion.

2.1The prohibition against refoulement

The principle of non-refoulement prescribes, broadly, that no person should be returned to any country where he or she is likely to face persecution or torture. The prohibition against refoulement is contained in the following international and regional human rights treaties to which Ireland is a party:

• Convention relating to the Status of Refugees 1951 – Article 33
• International Covenant on Civil and Political Rights (ICCPR) – Article 7 (expanded on in General Comment 20 of the Human Rights Committee)
• Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) – Article 3
• International Convention on the Rights of the Child (CRC) – Article 22
• Convention on the Elimination of All Forms of Racial Discrimination (CERD) – Article 5 (expanded on in General Comment 22 of the CERD Committee)
• European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) - Article 3

Moreover, many commentators point out that the principle of non-refoulement is now recognised as forming part of customary international law.[3] Generally speaking, where a norm forms part of customary international law it applies regardless of whether a State has incorporated the specific treaties into its domestic law.[4]

Article 33 of the Convention relating to the Status of Refugees 1951 provides that,“[N]o Contracting State shall expel or return (refouler) a refugee inany manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion (emphasis added).” The prohibition on the return of a person to a jurisdiction in which they face a danger of persecution under international refugee law is applicable to expulsion as well as any other form of forcible removal, including deportation, extradition or informal transfers. The principle of non-refoulement also applies to measures which amount to rejection or non-admittance at the frontier. Article 33(2) permits the return of a refugee to a country where he or she would be at risk of persecution under certain, limited circumstances which are exhaustively listed in this article.

Article 3 of the ECHR prohibits the State from returning a person to a jurisdiction where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture, or to inhuman or degrading treatment or punishment.[5] Article 3 of the ECHR provides a wider form of protection against deportation or expulsionas it does not allow for exceptions based on national security or previous criminal convictions of the person subject to return. The European Court of Human Rights has held,

“[T]he activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Article 32 and 33 of the United Nations 1951 Convention on the Status of Refugees”.[6]

The thresholds of seriousness required to prove torture, inhuman or degrading treatment or punishment are not static, but receive a living interpretation in light of ongoing developments in social and political attitudes within the Council of Europe member States. The European Court of Human Rightshas taken a progressive approach in defining the various forms of ill-treatment.[7] Therefore, the principle of non-refoulement is evolving under Article 3 of the ECHR, and the State should consider formulating its laws in a manner that does not preclude new developments in the law in this regard.

In addition to negative obligations on States to refrain from acts that will subject a person to torture, inhuman and degrading treatment, there are also positive obligations arising from Article 3 of the ECHR. The positive Article 3 duties oblige States to take “reasonable steps” to prevent persons, particularly vulnerable persons, from being subject to ill-treatment where the domestic authorities have, or ought to have, knowledge of that maltreatment.[8] These positive obligations have been identified within the context of preventing the abuse and neglect of children and protecting vulnerable persons who are deprived of their liberty. However, positive obligations may also have relevance in the immigration context in relation to the obligations the State owes to vulnerable persons presenting at its frontiers or those who are already present in the State who may have legitimate protection needs.

Article 3 of UNCAT prohibits the State from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture, defined in Article 1 of CAT as severe pain and suffering intentionally inflicted on a person for a number of specific purposes by or at the instigation of a person acting in an official capacity.

Article 7 of the ICCPR also prohibits torture, cruel, inhuman or degrading treatment or punishment with no derogation allowed, whether that treatment is inflicted by persons acting in their official capacity, outside their official capacity or in a private capacity.[9] The Human Rights Committee has stated that the prohibition in Article 7 is complemented by the positive requirements of Article 10 paragraph 1 which stipulate that, “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.[10] States parties to the ICCPR must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.[11]

2.2Articles 3 and 13 of the ECHR and the asylum determinations process

Suspensive effect of appeals where an arguable Article 3 claim arises

In the case of Jabari v. Turkey[12]the European Court of Human Rights found a violation of Article 13 of the ECHR (the right to an effective remedy) where the applicant had been refused asylum for procedural reasons. The only domestic remedy available to the applicant was judicial review. However, this neither entitled the applicant to suspend the application of the deportation order nor to have her substantive claim of a risk of an Article 3 violation examined. The Court outlined the robust nature of the Article 13 guarantee in this context, requiring “independent and rigorous scrutiny” of the substantive claim and “the possibility of suspending the implementation of the measure impugned”.

The case of Conka v. Belgium[13]concerned a violation of the prohibition of collective expulsion under Article 4, Protocol 4 of the ECHR. The Court observed that the notion of an effective remedy under Article 13 requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. In light of the limited availability of the remedy of suspending deportation in this case, the Court found a violation of Article 13. The Court concluded that a system which did not provide secure legal assurances that deportation would not take place could not be regarded as embodying the rule of law. In light of these recent cases, the European Court of Human Rights appears to be incorporating the principle of full suspensive effect of a review of a deportation decision as an absolute safeguard based upon the potential effects of a wrongful deportation under Article 3.[14]

Safe third countries and safe countries of origin

In T.I. v. United Kingdom[15] the European Court of Human Rights observed that the indirect removal of a person to an intermediary country, which is also a State party to the ECHR, does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention. Furthermore, the Court stated that the United Kingdom cannot rely automatically in that context on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. The Court observes,

“Where States establish international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution.”[16]

Negative credibility inferences

In Hatami v. Sweden[17] the European Commission on Human Rights found a violation of Article 3 of the ECHR where the Swedish authorities denied an asylum application on the basis of negative credibility inferences reached on the basis of contradictions and inconsistencies in the applicant’s account. The Commission stressed that no reliable evidence could be deduced from the original peremptory interview which was only 10 minutes long, but that subsequent evidence did substantiate the applicant’s claim. Of particular note is the fact that the Commission stated explicitly that “complete accuracy was seldom to be expected by victims of torture.” This is in line with the position adopted by the UN Committee Against Torture in a number of individual complaints where the Committee has acknowledged that “complete accuracy is seldom to be expected by victims of torture, especially when the victim suffers from post-traumatic stress syndrome…the principle of strict accuracy does not necessarily apply even when the inconsistencies are of a material nature”.[18]

Standards for officials receiving asylum-seekers

The Committee of Ministers of the Council of Europe has issued a non-binding recommendation on the training that border control officials should receive with the aim of preventing refoulement and in order to ensure unimpeded access to the asylum procedure in member States.[19] This recommendation recognises that border control officials need appropriate and adequate training on how to recognise requests for protection and to handle specific situations in connection with asylum-seekers. In relation to the officials who are required to refer asylum seekers to the competent asylum authority, the Committee of Ministers recommends the following training should be provided:

(i)basic knowledge of the provisions of national legislation related to the protection of asylum-seekers and refugees, including the relevant administrative issues and knowledge of internal instructions, wherever applicable, on how to deal with asylum-seekers;

(ii)basic knowledge of the provisions of the 1951 Convention and 1967 Protocol Relating to the Status of Refugees and general principles of refugee protection as provided by international law, in particular the prohibition of refoulement and the situation of refugees staying unlawfully in the country of refuge;

(iii)basic knowledge of the provisions relating to the prohibition of torture or inhuman or degrading treatment or punishment as enshrined in the European Convention on Human Rights;

(iv)basic knowledge concerning limitations under national and international law to the use of detention;

(v)skills to detect and understand asylum requests even in cases where asylum-seekers are not in a position to clearly communicate their intention to seek asylum, as well as basic communication skills concerning how to address asylum-seekers including those with special needs.

In relation to (v), it should be noted that some persons may not be in a position to clearly communicate their intentions of seeking asylum. The UNHCR Handbook on Procedure and Criteria for Determining Refugee Status points out that some asylum-seekers, because of their earlier fear of authorities in their own countries, may be afraid to speak freely and give a full and accurate account of their cases.[20] Officials should be provided with interpersonal skills training and should have an awareness of cultural differences.[21]

2.3The right to liberty and security of person

Article 5 of the ECHR, as well as Article 9 of the ICCPR, provides that everyone has the right to liberty and security of person and should not be subjected to arbitrary arrest or detention. Article 5 of the ECHR prohibits any form of detention which is not carried out with lawful authority and under proper judicial control; it specifies the limited circumstances in which a person may be deprived of his liberty and grants certain rights to persons who have been detained. The deprivation of liberty must be lawful and in accordance with a procedure prescribed by law. The arrest or detention must have been carried out in compliance with the procedural and substantive rules of national law. In addition, the domestic law governing the detention is required to have the “quality of law”; i.e. it must contain clear and accessible rules governing the circumstances in which it is permissible for the State to deprive an individual of his or her liberty and the procedure which must be followed.[22]