Irish Human Rights Commission Further Submission onthe Immigration, Residence and Protection Bill 2008

“Safe Countries of Origin” and “Safe Third Countries”

I. Introduction

  1. The Irish Human Rights Commission (IHRC)[1]issuedextensive Observations on the Immigration, Residence and Protection Bill 2008 (2008 Bill) in March 2008.[2]In those Observations, the IHRC highlighted its concerns in relation to the issue of the designation of part of a country as ‘safe’.[3]The IHRC also emphasised the need to strengthen the protection against the risks of refoulement.[4] In relation to the provisions on “safe third countries”in the 2008 Bill, the IHRC recommended that a thorough assessment be carried out as to whether the return of a person to a “safe third country” would indirectly expose the person to a risk of torture or inhuman or degrading treatment contrary to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Article 33 of the Geneva Convention on the Status of Refugees (Refugee Convention).[5]
  1. The recent judgment of the European Court of Justice, European Parliament v. European Council[6]annuls the provisions relating to “safe country of origin” and “safe third country” lists in the EU Council Directive on minimum standards on procedures for granting and withdrawing of refugee status (Procedures Directive). In light of this development, the IHRC makes the present further submission. In this submission, the IHRC wishes to highlight its concerns in relation tothe concept of “safe country of origin” andreiterate its concerns in relation to the designation of“safe third countries”. Prior unsuccessful efforts of EU Member Statesto achieve consensus in identifying Sending States with sufficient human rights standards in order to adopt a commonlist of “safe countries of origin”, highlights the complexities and protection risks associated with “safe country of origin” lists. Furthermore, the context of safe country lists in Irish law and practice has changed considerably since its introduction under the Refugee Act 1996 (‘the 1996 Act’).[7] With the accession of the new Member Statesto the EU; Croatia and South Africa remain the only two countries on a dedicated “safe country of origin” list.[8] The IHRC considers that there is a need to analyse the continued use of the “safe country of origin” concept. The IHRC alsorestates its recommendation that there is a need for adequate safeguards in relation to the designation of “safe third countries”.

II. Current and Proposed Law

(a) Countries of Origin and the Refugee Act 1996

  1. The 1996 Act allows the Minister for Justice, Equality and Law Reform (the Minister), after consultation with the Minister for Foreign Affairs, to designate a country as a “safe country of origin.”[9]Where a person is deemed to be a national or resident of a “safe country of origin”, they are subject to a rebuttable presumption that they are not a refugee.[10]In addition, the Minister may designate this category of applicant as a priority within refugee status determination procedures.[11]Appeal rights also differ from those within the substantive refugee status determination procedure. If a national or resident of a “safe country of origin” has an unsuccessful refugee claim at first instance, there may not be a right to an oral appeal hearing before the Refugee Appeals Tribunal (RAT). A paper based appeal must be submitted to RAT within four days.[12]The following countries are designated as “safe countries of origin” by Ireland: Croatiaand South Africa.[13] In addition to this, persons who are nationals of EU Member States cannot claim refugee or subsidiary protection within Ireland.[14] EU Member States are considered as “super safe countries of origin”. Ireland will not allow any citizen of an EU Member State to make an application for asylum.[15]

(b) Safe Third Countries and the Refugee Act 1996

  1. The Minister, after consultation with the Minister for Foreign Affairs, may designate a country as a “safe third country.”[16]Where an application for refugee status is made by an individual from a designated “safe third country”, the applicant may be transferred to that country[17]and may be detained for up to 48 hours to facilitate such transfer,[18] or may be detained pursuant to section 9A of the 1996 Act where the person intends to avoid transfer to this country. As of yet, there have been no bilateral agreements concluded betweenIrelandand other States.

(c) Safe countries of origin and the Immigration, Residence and Protection Bill 2008

  1. Section 102 of the 2008 Bill will allow the Minister, after consultation with the Minister for Foreign Affairs, to designate a country or part of a country as a “safe country of origin.”[19]Where a country or part thereof is declared safe, there is a rebuttable presumption that the country is safe for that particular applicant.[20]
  1. Under Section 79(3) of the 2008 Bill, the decision maker within the protection application can make a finding that inter alia the applicant is a national of, or has a right of residence in, a “safe country of origin” or ‘part of’ a “safe country of origin”. Under Section 81(7) of the 2008 Bill, the applicant will have access to a paper appeal only and must make an appeal within 10 working days. The IHRC considers that all protection applicants should have access to an oral hearing on appeal.[21] Where a protection applicant proposes to seek a review of a decision of the Protection Review Tribunal in the High Court, it is possible that the applicant will be removed before the High Court has an opportunity to deliver judgment on the merits of the challenge.[22]The IHRC notes that removal in certain circumstances may increase the risk of refoulement.

(d) Safe third countries and the Immigration Residence and Protection Bill 2008

  1. The provisions regarding “safe third countries” under the 2008 Bill are the same as those currently pertaining under the Refugee Act 1996, discussed above.

III. Relevant International Human Rights Standards

(a) European Convention for the Protection of Human Rights and Fundamental Freedoms

  1. The admissibility decision ofT.I. v United Kingdom[23]before the European Court of Human Rights concerned a Sri Lankan applicant whowas refused asylum in Germany. The applicant subsequently claimed asylum in the UK which sought to remove him to Germany on the basis of theConvention Determining the State responsible for examining applications for asylum lodged in one of the States of the Member States of the European Communities (“Dublin Convention”).[24] The applicant stated that this removal would be contrary to Article 3 of the ECHR as he faced the possibility of being returned to Sri Lanka by Germany. While the European Court of Human Rights (ECtHR) held the application to be inadmissible it stated that the prohibition against torture and inhuman treatment under Article 3 of the ECHR was of such fundamental importance that the UK could not derogate its responsibility to investigate an application by relying solely on the provisions of the DublinConvention. The ECtHR noted that Member States of the EUare not relieved of their obligations under Article 3 of the ECHR merely by the operation of Community law.[25]

(b) UNHCR Standards

  1. The United Nations High Commission for Refugees (UNHCR) Executive Committee has noted the importance of access to fair and efficient refugee status determination procedures for those seeking asylum.[26] UNHCR has noted that where countries do adopt lists of “safe countries of origin” or “safe third countries”, these should not be applied so as to deny asylum seekers access to asylum procedures or violate the principle of non-refoulement.[27] Where asylum seekers are being returned to a “safe third country”, the returning country should ensure that the “safe third country” will treat an asylum seeker in accordance with international standards.The asylee should not be subject to refoulement and the “safe third country” to which return is taking place should provide asylum seekers with the opportunity to seek and enjoy asylum.[28]

(c) “Safe countries of origin”and international refugee law

  1. Article 3 of the Refugee Convention states that the provisions of the Convention must be applied without discrimination as to race, religion or country of origin. The Refugee Convention seeks to protect all those fleeing persecution. The designation of a country as a “safe country of origin” seems to be out of step with the requirements of an individualised assessment of protection status for an applicant. While a country may generally be safe, it does not mean that it can be considered safe for that particular protection applicant unless a full examination by status determination bodies decides otherwise. The UNHCR Handbook on Procedures for Determining Refugee Status (UNHCR Handbook)[29] notes the need for a fair procedure for all applicants for refugee status. As well as information pertaining to access to the procedure, there should be a status determination system in place which allows all applicants to apply for asylum and have access to an appeal system if unsuccessful at first instance.[30] The UNHCR Handbook recognises that individual facts differ from case to case and from applicant to applicant.[31] A person taking a decision on the status of an individual applying for refugee status should be aware of the difficulties which may face the applicant who may be of aparticularly vulnerable frame of mind.[32]
  1. In light of Ireland’s obligations to prevent refoulement under Article 3 of the ECHR and Article 33 of the Refugee Convention and the principle that all persons should be entitled to access a protection system as outlined within the UNHCR Handbook, the IHRC considers that the designation of countries as “safe countries of origin” should be seriously reconsidered.

(d) UNHCR Standards on “Safe Third Countries”

  1. UNHCR has stated that asylum applicants should have the opportunity to rebut the presumption of “safe third country”. There should be a procedure to determine whether the applicant is in need of protection regardless of the designation by a national parliament or any other body that the country is ‘safe’. Due to the need to ensure the individualised nature of refugee decisions, any general criteria for considering countries as “safe third countries” should be applied flexibly.[33] Any negative decision at the first instance should result in the possibility of an appeal. The applicant should not be removed until the final decision in relation to the “safe third country” is delivered.[34]In addition, a country should examine whether the protection applicant has any familial or other close ties in that country or whether there are compelling circumstances which should allowan asylum claim to proceed.[35]

IV. Conclusion and Recommendations

  1. The IHRC is concerned that where a protection applicant is from a designated “safe country of origin”, their access to an individualised and fair protection determination procedure is significantly restricted. The IHRC considers that all applicants for protection must have access to full determination procedures with a right to an oral appeal hearing if necessary. The designation of a country as a “safe country of origin” or a “safe third country” must not interfere with an applicant’s right to have their claim for asylum dealt within a fair, individualised and efficient asylum procedure. This includes an oral hearing on appeal and sufficient time being allowed for the protection applicant to apply for an appeal.
  1. The IHRC considers that there is a pressing need to fundamentally re-examine the continued use of the concept “safe country of origin”.[36] International refugee law expressly prohibits any discrimination towards refugees on the basis of their country of origin. All individuals who claim asylum should have access to a fair, efficient, individualised and transparent protection status determination process including an oral hearing on appeal and sufficient time to apply for an appeal. Furthermore, the applicant should not be removed from the State until his application, and any appeal, has been fully considered.
  1. The IHRC considers that the Immigration, Residence and Protection Bill 2008 provides an opportunity for the Government to restate its longstanding commitment to ensuring a robust system of international protection which represents international best practice, and urges the Minister to reconsider the use of “safe country of origin” lists.

In the event that the “safe country of origin” provisions are retained within the 2008 Bill, the IHRC considers that the following safeguards should be put in place:

  1. UNHCR has stated that the notion of “safe country of origin” can be utilised as a “procedural tool”.[37] Individual examinations of an asylum claim must take place and the duty to ascertain the facts is a task of both the asylum seeker and the examiner of the claim. UNHCR noted that a country should not be considered safe if only a part of that country is deemed safe.[38]When designating “safe countries of origin”, UNHCR has also noted that States must not only take account of the international refugee instruments or the international human rights instruments ratified, but also have access to independent and verifiable information on respect for rule of law, the implementation of international human rights accords and also the country’s record of not producing refugees.[39] Where lists of “safe countries of origin” are being drawn up, theprocess for the drafting of these lists should be transparent.There will be a need to be responsive to changing circumstances within the country of origin. Applicants from these countries must have an effective opportunity to rebut any presumption in relation to the safety of the country based on his or her particular circumstances.[40]
  1. As well as the criteria examined by the Minister underSection 102 of the 2008 Bill, the IHRC considers that the following safeguards should be inserted into Section 102 to ensure the correct designation of a “safe country of origin” or ‘part of’ a “safe country of origin”:
  • The actual situation on the ground within the designated “safe country of origin” should be kept under constant review. Such States must enforce international human rights instruments rather than simply sign and ratify these instruments.[41]
  • There should be an individual assessment of each claim from designated “safe countries of origin”and an opportunity for an individual to rebut the presumption of safety.[42]
  • The IHRC reiterates its recommendation in respect of Section 79(3)(g) of the 2008 Bill that an assessment in relation to whether a person could reasonably have relocated to a ‘safe part’ of their country of origin is a complex one which requires an assessment of the personal circumstances of the applicant and the options that were reasonably available to the applicant at the time. The IHRC considers that the key to this assessment is the possibility for the applicant to give a full explanation of his or her circumstances by way of an oral hearing on appeal. The IHRC recommends that this category of applicant should not be dealt with in an accelerated manner.
  1. In relation to “safe third countries”, as well as the conditions outlined within Section 103 of the 2008 Bill, the Minister should be satisfied of the following :
  2. The general criteria for considering “safe third countries” should be applied flexibly[43] so as to allow for consideration of changes within the third country. Consideration should also be given to familial or other ties which the protection applicant may have within Ireland[44] and issues which may arise under Article 8 of the ECHR;
  3. There should be a credible mechanism in place for ensuring compliance by the receiving State with the assurances given that the rights of the asylee would be respected;[45]
  4. The applicant should have access to the protection determination system within the “safe third country”;[46]
  5. The protection determination process within the receiving Stateshould comply with internationally recognised protection standards;[47]
  6. There should be an equivalence of asylum seeker protection between Ireland and the “safe third country”. The types of protection available should be on par with the different types of protection available to protection applicants within Ireland. This includes at a minimum, an ability to apply for refugee status; an ability to apply for a form of subsidiary protection which is akin to that of Ireland, and; an ability to apply for leave to remain within the State independent of these two forms of international protection;[48]
  7. Once all of these considerations have been undertaken, the Minister should then consider whether the reception and accommodation of asylum seekers within the “safe third country” are of an acceptable standard and will not give rise to concerns of inhuman or degrading treatment under Article 3 of the ECHR.[49]

1

[1] The IHRC is Ireland’s national human rights institution, it is an independent statutory body established under the Human Rights Commission Acts 2000 and 2001, to ensure that the human rights of all people in Ireland are promoted and protected in law, policy and practice.One of the functions of the IHRC is to review the adequacy and effectiveness of law and policy in the State in relation to Constitutional and international human rights standards deriving from the Irish Constitution and international treaties to which Ireland is a party.

[2] IHRC, Observations on the Immigration, Residence and Protection Bill 2008 (March 2008) (hereinafter IHRC Observations).

[3] IHRC Observations, pp. 51-52.

[4]Ibid.

[5] IHRC Observations, p. 53.

[6] Case C-133 European Parliament v European Council [2008] EUECJ (06 May 2008).The European Court of Justice (ECJ) annulled Articles 29(1), 29(2) and 36(3) of the Council Directive on minimum standards on procedures for granting and withdrawing of refugee status (Procedures Directive). The ECJ held that the European Council had failed to abide by Article 67(5) of the Treaty Establishing the European Community (TEC) which provides that measures adopted must be on the basis of the co-decision procedure with the Council and Parliament in agreement. These Articles permitted the European Council to adopt common lists of safe countries and of safe third countries on the basis of consultation only with the European Parliament. Implications of such a designation can include inter alia where a national of a safe country or a safe third country makes an application for international protection, the applicant is subject to a rebuttable presumption that the country is ‘safe’(Preambular paragraph 19 of the Procedures Directive); where a country is designated ‘safe’, then applications may be accelerated or prioritised (Article 23(4)(c)); the application could be declared inadmissible where a prior application for asylum was made in a safe country. (This is by virtue of Dublin II, Regulation 343/2003 establishing the criteria and mechanisms for determining the MemberState responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] O.J. L.50/1.) This is also the case for declared safe third countries (Article 35(2)(c)). Member States may also provide that no examination or no full examination of an asylum claim will be carried out where an individual entered illegally from a safe third country (Article 36).