table of contents

EXECUTIVE SUMMARY

I.Introduction......

II.General Observations and Recommendations......

1.Human Rights Law and Executive Discretion in the Immigration Context......

2.Amalgamation of Immigration, Protection and Trafficking Issues......

3.Explicit Reference to International Human Rights Law......

4.The Transposition of EU law in a Human Rights Compliant Manner......

5.Equality and Discrimination Proofing of Immigration Decisions......

6.Independent Appeal of Negative Immigration Decisions......

III.Specific Observations and Recommendations......

1.The Protection System......

2.Removal from the State......

3.Family Reunification......

4.Marriage of Foreign Nationals......

5.Non-Entitlement to Services for Foreign Nationals Unlawfully Present in the State......

6.Victims of Trafficking......

7.Provision of Biometric Data......

8.Production of Travel Documents......

I. INTRODUCTION

II. General OBSERVATIONS and recommendations......

1.Human Rights Law and Executive Discretion in the Immigration Context......

2.The Amalgamation of Immigration, Protection and Trafficking Issues......

3.Explicit Reference to International Human Rights Law......

4.The Transposition of EU Law in a Human Rights Compliant Manner......

5.Equality and Discrimination Proofing of Immigration Decisions......

6.Independent Appeal of Negative Immigration Decisions......

III. Specific observations and recommendations......

1.The Protection System......

(a)Introduction......

(b)Access to the Protection System......

(c)Definition of a Person Eligible for “Subsidiary Protection”......

(d)Broader Category of Cases Arising from Article 3 of the ECHR

(e)Safe Country of Origin or Safe “part of” Country of Origin......

(f)Safe Third Country......

(g)Limitations of the Judicial Review Remedy......

(h)Detention of Protection Applicants......

(i)Unaccompanied Minors – Entry, Residence and Removal......

(j)Burden of Proof and Credibility Inferences......

(k)Limitation on Oral Hearings and Time Limits for Appeal......

(l)Access to the Decisions of the Protection Review Tribunal......

2.Removal from the State......

3.Family Reunification......

4.Marriage of Foreign Nationals......

5.Non-entitlement to Services for Foreign Nationals Unlawfully Present in the State......

6.Victims of Trafficking......

7.Provision of Biometric Data......

8.Production of Travel Documents......

IV.Summary of Key Recommendations......

EXECUTIVE SUMMARY

I.Introduction

The Irish Human Rights Commission (IHRC) is an independent statutory body established under the Human Rights Commission Act 2000, to ensure that the human rights of all people in Ireland are promoted and protected in law, policy and practice.One of the roles of the IHRCis 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. Having made such an assessment, the IHRC makes recommendations to the Government concerning the measures that should be taken to strengthen, protect and uphold human rights in Ireland, in line with Ireland’s Constitutional and international obligations.

The IHRC welcomes the initiative to consolidate immigration law into a single statutory code. However, the IHRC is concerned that there are a broad range of areas in the Immigration Residence and Protection Bill 2008 (2008 Bill) where the human rights of immigrants and protection applicants are not fully protected and upheld to the level required by the international human rights treaties which Ireland has ratified. Furthermore, the IHRC considers that there are areas of the 2008 Bill where additional safeguards are required to strengthen and enhance the current provisions of the 2008 Bill. In pursuance of its statutory functions, the IHRC sets out a number of recommendations in these Observations where it considers that the 2008 Bill should be reformulated to strengthen, protect and uphold the human rights of the persons to which the provisions of the 2008 Bill apply.

II.General Observations and Recommendations

  1. Human Rights Law and Executive Discretion in the Immigration Context

The IHRC notes that the 2008 Bill retains a large element of Ministerial discretion over immigration related decisions. Many provisions of the 2008 Bill provide that the Minister, or those working on his behalf, can apply, or as the case may be, refuse to apply various provisions of the 2008 Bill on the grounds of security of the State, public policy, public good or public health. Furthermore, it appears that much of the detail of the legislative framework remains to be defined in Regulations under Section 127 of the 2008 Bill. The IHRC is concerned that these broad ranging categories are subject to wide interpretation and could give rise to arbitrary decision-making. It recalls that akey requirement under the ECHR is that where there is an interference with fundamental rights, executive discretion should not be so wide-ranging as to result in arbitrary interferences with those rights, and should be accompanied by adequate and effective safeguards.

The IHRC therefore recommends:

  • The categories “security of the State, public policy, public good and public health” should be defined on the face of the 2008 Bill in order to indicate with sufficient clarity the scope of Ministerial discretion in relation to the various decisions that are subject to these grounds.
  • The Regulations drafted pursuant to Section 127 should be human rights proofed to ensure that any interference with human rights is proportionate, and that adequateand effective safeguards are in place to avoid arbitrary decision-making.[1]
  1. Amalgamation of Immigration, Protection and Trafficking Issues

The 2008 Bill aims to reform a wide range of areas of law which affect very different categories of non-nationals who are entering the State including, inter alia, immigrants, protection applicants and victims of trafficking. The IHRC considers that in light of the fact that the 2008 Bill contains a combination of the immigration system and the protection system, it is essential that every aspect of the 2008 Bill is proofed to ensure that the prohibition against refoulement is in no way undermined at any stage in the immigration process. Furthermore, the IHRC notes that the provisions in the 2008 Bill concerning victims of trafficking only apply to foreign nationals. The IHRC recalls that victims of trafficking may originate not only in non-EEA countries but can also be persons from Member States of the EU.

The IHRC therefore recommends:

  • In order to ensure clarity in the 2008 Bill, it is preferable if the wording “Subject to Section 4 of the Criminal Justice (United Nations Convention Against Torture) Act 2000 and to Section 53(1) of the current Bill” is inserted into the following provisions: Section 4(4) & (9), Section 27, Section 54, Section 104, Section 102, Section 117 and Section 27(1)(h)(iv).
  • The provisions on victims of trafficking should be amended to specify that they apply to all victims of trafficking and not justforeign nationals.[2]
  1. Explicit Reference to International Human Rights Law

The IHRC notes that, unlike the Scheme of the Immigration, Residence and Protection Bill 2006, the 2008 Bill does not make any explicit reference to international human rights law.

The IHRCtherefore recommends:

  • The long title of the 2008 Bill should specify that the objective of the 2008 Bill is to give effect to the State’s international obligations in relation to the prohibition against refoulement[3] and to provide for persons seeking protection in the State as required under the Convention Relating to the Status of Refugees (Refugee Convention), the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the UN Convention Against Torture (CAT), the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).
  • A “saver clause” should be inserted to Section 7 of the 2008 Bill to the effect that nothing in this Billshall affect any obligation of the State under the Refugee Convention, ECHR, CAT, and CRC in relation to the prohibition against refoulement as defined by those international instruments.[4]
  1. The Transposition of EU law in a Human Rights Compliant Manner

The IHRC notes that the 2008 Bill integrates the European Communities (Eligibility for Protection) Regulations 2006 which transposed the EU Qualifications Directive, and transposes the Procedures Directive and the Mass Influx Directive. The IHRC has previously highlighted Ireland’s obligation to implement EU Directives in a manner which complies with its obligations under international human rights law.

The IHRC therefore recommends:

  • In line with the principle that EU Directives set out minimum standards, existing higher standards in Irish law should not be undermined. Rather than adopting a minimalist approach, best practice standards such as those advocated by the United Nations High Commissioner for Refugees around the definition of subsidiary protection, should be adopted in the 2008 Bill.[5]
  1. Equality and Discrimination Proofing of Immigration Decisions

The IHRC considers that equality and non-discrimination should form an integral part of immigration decisions and should be central to the practice of immigration officers and members of the Garda Síochána.

The IHRC therefore recommends:

  • A non-discrimination clause should be inserted into the 2008 Bill as one of the general principles governing the operation of the immigration system.[6]
  1. Independent Appeal of Negative Immigration Decisions

While some of the provisions in the Bill provide for a limited appeal of a negative immigration decision, many provisions in the Bill do not provide any appeal and in general there is no access to a fully independent appeal of negative immigration decisions by the Minister or an immigration officer apart from making an application for judicial review.

The IHRC therefore recommends:

  • In light of the commitment made in the Programme of Government to put in place a “visibly independent appeals process” serious consideration should be given to providing for an independent appeals mechanism in the 2008 Bill of all immigration decisions where there is an interference with the human rights of an immigrant or members of his or her family.[7]

III.Specific Observations and Recommendations

  1. The Protection System

a)Access to the Protection System

The IHRC notes that certain provisions of the 2008 Bill appear to restrict access to the protection system. Section 117 provides that the Minister can issue an exclusion order if he or she considers it necessary in the interest of public security, public policy or public order. Furthermore, the 2008 Bill does not contain specific provisions dealing with persons who are already present in the State and who need to make a protection claim at a later stage than at the frontiers of the State. The IHRC notes that ensuring unimpeded access to the protection system is a key aspect of the prohibition against refoulement. In this regard, the IHRC recalls that the prohibition against refoulement includes measures which amount to rejection or non-admittance at the frontiers of the State.

The IHRC therefore recommends:

  • In order to ensure clarity in the 2008 Bill it would be preferable if the power of immigration officers to refuse a person entry to the State under Section 25 and Section 27 is madeexplicitly subjectto the prohibition against refoulement under Section 53(1) of the 2008 Bill.
  • Section 117 dealing with exclusion orders does not comply with the limited exceptions permitted to the provision of international protection under the Refugee Convention and should be redrafted to ensure such compliance.
  • Section 25(4) should be removed from the 2008 Bill. Where a person claims to have a well-founded fear of persecution access to the protection system should not be subject to the consent of the Minister, notwithstanding that an exclusion order has been issued against that person.
  • A provision should be inserted into the 2008 Bill to the effect that immigration officers or members of the Garda Síochána involved in examinations of protection applicants shall receive the necessary training and have sufficient knowledge of international protection obligations.
  • Specific provision should be made in the 2008 Bill to ensure that persons who are already in the State have adequate access to the protection determination system.[8]

b)Definition of a Person Eligible for “Subsidiary Protection”

The IHRC notes that the definition of “subsidiary protection” contained in the 2008 Bill is in line with the definition of “subsidiary protection” in the Qualifications Directive. The IHRC recalls that the Qualifications Directive is designed to set minimum standards. The IHRC also notes that the UNHCR has recently presented its views on the minimum standards for subsidiary protection urging Member States of the EU not to adopt a minimalist approach. In line with Article 3 of that Directive “Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or a person eligible for subsidiary protection”. The IHRC considers that the definition of subsidiary protection in Irish law should reflect best international practice as outlined by the UNHCR. The added value of the subsidiary protection regime is that it should aim to provide protection from serious risks which are situational, rather than individually targeted, and the definition of subsidiary protection should reflect this underlying purpose.

The IHRC therefore recommends:

  • Subsidiary protection should be defined as applying to persons who are forced to flee their country of origin, or remain outside that country, as a result of a threat to their life, security or liberty, for reasons of indiscriminate violence, arising from situations such as, but not limited to, armed conflict. Such a definition is in line with the views expressed by the UNHCR on this issue.
  • If the definition currently contained in the 2008 Bill is retained,an individual should not be required to prove that he or she is individually targeted, but it should be sufficient to demonstrate that he or she is at risk by reason of generalised violence arising from an armed conflict. Non-international armed conflict should be broadly defined, and should not be limited to non-international armed conflicts which are internationally recognised.[9]

c)Broader Category of Cases Arising from Article 3 of the ECHR

The IHRC notes that the 2008 Bill makes some provision for persons who are not granted refugee status or subsidiary protection but who the State cannot return to their country of origin in order to comply with the prohibition againstrefoulement. However, such persons do not have access to a Protection Review Tribunal and therefore, apart from judicial review, do not have access to an independent appeal of a negative decision.

The IHRC therefore recommends:

  • Similar to other protection claims involving refugee status and subsidiary protection, persons in this category should also have access to the Protection Review Tribunal to enable them to have a negative decision independently reviewed.[10]

d)Safe Country of Origin or Safe “part of” Country of Origin

The IHRC notes that under the 2008 Bill the Minister can designate a country or part of that country as “safe” and lists the criteria by which the Minister can make this designation. Under the 2008 Bill the Minister or Tribunal can determine that a person from a “safe” country or part thereof is not in need of protection in the State having regard to the general circumstances prevailing in part of that country, and to the personal circumstances of the applicant. The IHRC is concerned about the proposal to allow for the designation of part of a country of origin as “safe”. In any assessment of a “safe part” of a country of origin there must be adequate and effective safeguards in place. In particular, the assessment must take into consideration whether the person had a reasonable chance of travelling safely to the part of the country concerned, whether the person has a reasonable chance of gaining access to the part of the country that is considered safe, and whether they had a reasonable chance of being allowed to settle there and make a living there. Furthermore, it is clear from the criteria outlined by the UNHCR that an assessment of the internal flight alternative is a complex one which is dependent on the personal situation and characteristics of the applicant.

The IHRC therefore recommends:

  • The 2008 Bill does not contain sufficient safeguards to ensure that the assessment of whether a person could reasonably have relocated to a safe part of their country of origin is carried out in a manner which fully complies with the requirements of Article 3 of the ECHR.
  • In order to fully comply with the requirements of Article 3 of the ECHR, Section 63(7) should be amended to provide that in examining whether Section 63(6) can be applied in the individual case of the applicant, the following factors shall be taken into account:
  • Whether the area of relocation is practically, safely, and legally accessible to the individual;
  • Whether the claimant could be exposed to a risk of persecution or other serious harm upon relocation;
  • Where the agent of persecution is the State, there should be a presumption that the internal flight alternative is not available;
  • Where the agent of persecution is a non-State agent, there must be an assessment as to whether there is a risk that the non-State actor will persecute the applicant in the proposed area;
  • Whether, taking account of the personal circumstances, past persecution, and economic circumstances of the applicant he or she could have been reasonably expected to move to the proposed safe part of the country.[11]

e)Safe Third Country

The IHRC notes that under the 2008 Bill the Minister can designate a “safe third country”. The 2008 Bill sets out the criteria by which the Minister shall assess a “safe third country”. A “safe third country” is a country through which the protection applicant has transited on his or her travel route to Ireland and where it is deemed he or she could reasonably have been expected to make a protection claim. The IHRC considers that, in light of the jurisprudence of the ECtHR, the Irish authorities may not be able to rely automatically on the arrangements made under the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Community (Dublin Convention)[12] and should engage in a thorough assessment as to whether there is a real risk that the return of the person to a “safe third country” will indirectly expose that person to a substantial risk of treatment contrary to Article 3 of the ECHR.

The IHRC therefore recommends:

Section 103 of the 2008 Bill should be amended to provide that a country can only be designated as a “safe third country” where, in addition to the criteria already listed in the 2008 Bill, the Minister is satisfied of the following: