NGO Concerns about the 'Immigration, Residency and Protection Bill 2008'

I Meant to post this a couple of weeks ago when I received the email but I forgot to! It is a Summary of Concerns regarding the Immigration Residency and Protection Bill 2008, which is currently being discussed within the Dáil. This Bill is very scary and the reliance within it of the Minister's Discretion to resolve the inconsistencies within the Bill, among other things, does not instill any hope about it either.

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Via Equal-L
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SUMMARY OF CONCERNS

NGOs working in the immigration sector believe the Immigration, Residence and Protection Bill 2008 represents an ideal opportunity to comprehensively reform outdated and inadequate immigration legislation. However, we believe the Bill, as it stands, fails to capitalise on this opportunity. If enacted without significant amendment, the legislation will seriously erode migrants’ rights while at the same time failing to address some of the serious flaws in the system, namely, unacceptable delays in the decision-making process, inconsistent decision-making, an over-reliance on the courts to resolve problems and a lack of clarity about the rights, entitlements and obligations of migrants in Ireland.

Key Concerns Immigration

With regards to Immigration, our major concerns about the Immigration, Residence and Protection Bill are:

1. The Bill does not spell out clear rules regarding the rights and obligations of migrants coming to Ireland but, instead, it promises to ‘fill in the blanks’ later through the introduction of regulations. In fact, in some areas, the Bill fails to say who may come to Ireland and under what conditions, something we believe is fundamentally important in primary immigration legislation.

2. The Bill does not provide for an independent appeals mechanism for immigration decisions, as promised in the Programme for Government. As a result, we believe the Government’s reliance on the courts as a mechanism for resolving challenges to decisions will continue and probably intensify, at significant cost to taxpayers and great personal cost to migrants.

3. According to the European Commission, family reunification is one of the most significant types of migration to the EU. Unless the Bill is amended, Ireland will be the only EU Member State which does not have primary legislation covering this very significant type of migration.

4. Provisions in the Bill for summary deportations may result in vulnerable people, who have become undocumented through no fault of their own, being deported before they can regularise their situation, leaving them with no avenue to make an application for residency even where their case involves very exceptional circumstances. Additionally, if not amended, this provision could result in migrants being unable to avail of programmes which help them return voluntarily to their country of origin, meaning taxpayers will pay for a larger number of people being forcibly removed the State.

5. Sections of the Bill may be unconstitutional and breach Ireland’s international human rights obligations. One example is new restrictions on people’s right to marry, which bans some migrants from marrying in Ireland – even if they are intending to marry an Irish citizen – unless the Minister exercises his discretion and gives his permission.

6. The Bill restricts migrants’ access to justice in a number of ways. Two examples are: allowing just 14 days to initiate judicial review proceedings in response to any immigration decision and allowing for the courts to award costs against a migrant’s legal representative personally, something we believe to be intimidatory and unconstitutional.

7. While the Bill gives ‘long-term residency’ a statutory footing, unlike most other EU countries, Ireland’s version of this status will not be permanent and will be granted at the discretion of the Minister.

8. We have grave concerns about provisions designed to provide protection to victims of trafficking. Most significantly, people who are trafficked to Ireland from within the EU will not benefit in any way from these provisions as the Immigration, Residence and Protection Bill generally applies only to citizens from outside the EEA.

9. The Bill denies access to benefits and services to migrants who are ‘unlawfully present’ in Ireland. Unless amended, one example of what this would mean is that a migrant who has become undocumented as a result of workplace exploitation would not be able to seek redress through the Employment Appeals Tribunal.

10. There is an inherent tension in the Bill in that it combines general immigration and asylum/protection issues in the same piece of legislation. Parts of the legislation are extremely problematical in that people entering Ireland for the purpose of seeking asylum are subject to general immigration obligations and requirements.

Potential Breaches of the Constitution

· Section 4 (8) of the Bill, which introduces summary deportation, may be in breach of fair and just procedures – an unremunerated right recognised under the Irish Constitution. May lead to violations of the right to private and family life as protected by Article 8 of the European Convention on Human Rights and has the potential to breach Article 6 and 13 of the European Convention on Human Rights.

· Section 123 (2)(b) of the Bill, which prohibits the marriage of certain foreign nationals in the State, even where they wish to marry an Irish or EU national, may be in breach of the constitutionally protected right to marry in Article 41.3.1

· Section 123 (3) of the Bill, which relates to possible exemptions from the prohibition to marry in Ireland, may breach the equality clause in Article 40.1 of the Constitution be in breach of 15.2.1 of the Constitution which provides that the Oireachtas has the sole and exclusive power to make law.

· Section 118 (8) of the Bill, which would introduce the possibility of the High Court awarding costs against migrants’ legal representatives, but not against the State’s legal representatives, may breach Article 40.1 of the Constitution.

· There is a real question whether the restriction of the High Court’s ability to extend time in judicial review proceedings beyond the 14 days migrants have within which to initiate judicial review proceedings against immigration decisions, contained in Section 118 (3) of the Bill, may also be unconstitutional.

Potential Breaches Of International Human Rights Obligations

· Section 118 of the Bill, which would introduce the possibility of the High Court awarding costs against migrants’ legal representatives, but not against the State’s legal representatives, may breach Article 6 of the European Convention on Human Rights and Fundamental Freedoms.

· Failure to provide for an independent appeals mechanism for immigration decisions, as promised in the Programme for Government, may deny migrants the opportunity to challenge decisions affecting their, and their families’, human rights, as protected under the European Convention on Human Rights and Fundamental Freedoms, in particular Articles 3 and 8, may be in breach of Articles 6 and 13.

· Section 4 (8) of the Bill, dealing with summary deportations, may lead to violations of the right to private and family life as protected by Article 8 of the European Convention on Human Rights and has the potential to breach Article 6 and 13 of the European Convention on Human Rights.

· Provisions in Section 124 of the Bill, relating to protection for victims of trafficking, fall far short of Ireland’s obligations under the Council of Europe Convention on Actions to Combat Human Trafficking:

- Most significantly, the protective measures contained in the legislation would not apply to EEA citizens who have established their free movement rights and with that exclude people who have been trafficked into Ireland from within the EEA from protection.

- Another major concern is the absence of provisions detailing the

types of assistance which would be made available to people who

have been identified as victims.

- Additionally, temporary residence permits for victims would be issued only if linked to the victim assisting a prosecution and does not take into account circumstances where the victim may be too traumatised to take part in prosecutions, or where the State decides not to proceed with prosecutions.

Key Concerns Protection

NGOs working in the protection sector welcome the publication of the Immigration, Residence and Protection Bill 2008 but believe that in its current format it misses the opportunity to address the fundamental flaws in our immigration and protection system. There are concerns that a number of provisions remain inadequate in fulfilling Ireland’s obligations under international human rights law. Unfortunately, the Government has confused immigration policy – of which parts deal with who enters the state, the necessary documentation required and the manner whereby they do so – with the right to seek protection. Asylum seekers arrive with the intention of seeking refugee or other protection status, as laid down under international agreements, and this should not be confused with other immigration issues. It is imperative therefore that the Government recognises that people fleeing persecution have a right under international law to seek protection and a right to have their claim for protection determined in a fair and open way, by ensuring that the appropriate checks and balances are in place to make sure that people’s rights are not violated in any way. In addition, the proposed asylum and protection system continues to lack transparency and remains outside the scope of the Freedom of Information Act, re-enforcing the secrecy under which it is currently clouded and remains outside the scope of the Freedom of Information Act making it hard to see that justice is done. It is also extremely disappointing that in launching this Bill the Minister has adopted a culture of disbelief by choosing to question the fundamental principle of access to justice and the importance of maintaining full judicial oversight of any decision that directly affects Ireland’s compliance with its international legal obligations. Such a culture not only negatively frames the debate surrounding the Bill but also if passed into legislation will have the same negative implications for those tasked in ensuring its application. We sincerely hope that the Government and opposition parties take into account the concerns of the NGOs, the UNHCR and the Irish Human Rights Commission to correct the current shortcomings.

With regards to Immigration, our major concerns about the Immigration, Residence and Protection Bill are:

1. Access to procedure/access to territory

The right to arrive in the country and seek protection is absolutely fundamental in international law, and should not be limited by provisions which are designed to control immigration for work or other purposes. We note with concern that the Bill provides no clarity on the position of protection and does not properly reflect and ensure respect for our obligations under international refugee and human rights law. The Bill should contain specific references to and affirmation of the absolute respect of the right to seek asylum, and reiterate that Ireland’s international obligations are engaged as soon as an asylum applicant arrives at our border or is on the territory of the State. The Bill makes it an offence to try to enter the State without a passport or other identity documents and without a pre-entry permission. This may not be compatible with Article 31(1) of the 1951 Refugee Convention which provides that the State should not impose penalties for unauthorised entry, provided that a refugee presents him/herself without delay to the authorities and shows good cause for his or her illegal entry. It is an important safeguard aimed at allowing persons in need of protection to do so where they cannot obtain travel documentation and States must not punish those asylum seekers who have no choice but to present at the State’s border on an unauthorised basis or improper documentation.

Carrier liability improperly shifts responsibility for protection decisions from the State to carriers. Carrier sanctions will mean that those seeking protection may be prevented from accessing the State, in breach of the State’s obligations under the 1951 Convention. This may well have the effect of forcing persons to rely on traffickers/smugglers. At minimum, the State should allow for an asylum/protection-related defence to carrier liability and exempt carriers where persons make protection applications upon arrival to Ireland and/or where persons are particularly vulnerable (i.e. trafficked persons and separated children).

2. Single Decision Process/First Instance

We welcome the principle of a single-decision process for all forms of protection, to assess claims for asylum, subsidiary protection, non-refoulement and compelling reasons. We do, however, have concerns about the current processes, including the lack of legislated Rules/Guidelines, and the use of accelerated procedures. We are disappointed that the Bill has not been amended to provide for official records of proceedings (rather than a summary kept by the interviewer), or the publication of decisions, both of which we would consider to be good practice internationally. Further, concerns regarding the lack of clarity around the role of the observer (s. 74 (9)), and disclosure to the applicant regarding the evidence to be relied upon by the State have not been addressed. (Note: We are encouraged, however, by the requirements of s. 75 (2) and 81 (c) (i) and (ii)). We would further welcome if explicit reference was made inter alia to the 1951 Convention in the legislation. This would be in line with the objective as outlined in the preamble of the Qualifications Directive to determine refugee status in line with the 1951 Convention.

3. Qualifications Directive and Procedure Directive and Interpretation in Bill

It is in the State’s best interest in terms of efficiency and also to recognise and uphold obligations to those in need of international protection that all forms of international protection needs are examined in a single procedure, with the same minimum guarantees that are in line with international human rights law and standards. The grounds for protection, including the relevant standard of proof, should be interpreted in the light of existing and evolving jurisprudence of international human rights law and the European Court of Human Rights. With regard to the definition of serious harm, as outlined in the Qualification Directive as transposed by S.I. No. 518 of 2006 European Communities (Eligibility for Protection) Regulations 2006, we would like to highlight concerns raised by UNHCR and others that the notion of an ‘individual threat’ should not lead to the imposition of an additional threshold for those facing a serious threat to their life or person because of indiscriminate violence. If there is a serious threat it is, by definition, a threat to the individual, even if they are not specifically targeted. We also recommend that the Government ensure that this is interpreted broadly so that protection is provided to those who have fled serious threat to their life or person, including indiscriminate violence and gross human rights violations outside the context of ‘internal or international armed conflict’.

4. Safe Third Country/Country of Origin

It is concerning that Section 102 of the Bill allows for the possibility to designate a part of a country of origin as safe. The Bill provides additional criteria to that currently provided for in the Refugee Act 1996 by which a country must be assessed in order to be designated a safe country. The Bill provides that a safe country of origin designation can be made if the Minister is satisfied that, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that, in the country or part of the country concerned, there is generally and consistently no persecution, construed in accordance with sections 64 and 65, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. There is no such criteria in the Refugee Act 1996. In addition, declaring countries as generally safe, or parts of countries safe without a proper examination of the individual circumstances of a claim is at odds and is inconsistent with the proper focus of international refugee law on individual circumstances and the protection needs of individuals. Therefore the individual circumstances of an applicant must not be ignored in favour of a generalised determination of safety of a country of origin or part of that country. Again the Qualification Directive, as transposed by S.I. No. 518 of 2006 European Communities (Eligibility for Protection) Regulations 2006, underlines the concept that individual circumstances of the applicant must be considered (Article 4(3)). The addition of clearer criteria in the 2008 Bill is to be welcomed.

5. Protection Review Tribunal (“PRT’)

We welcome the Minister’s assurances that the protection appeals process will be more transparent and fairer than that provided by the current Refugee Appeals Tribunal (“RAT”). However, as currently drafted, the proposed PRT is effectively the same body as the Refugee Appeals Tribunal (“RAT”), save in name. Only selected decisions of the PRT will be published, despite internationally recognised best practice (including in the UK) providing for publication of anonomysed decisions. The Chair of RAT is deemed the Chair of PRT. The Chair can delegate key duties to others. The Chair may produce public Rules and may produce internal Guidelines to be relied upon by the Members. We would urge that the legislation be amended to provide for publication of decisions (suitably anonomysed), to require the Chair to publish Rules and Guidelines and to remove s. 95 (7)(a), which undermines the lawyer’s role and duty in representing their client.

6. Protection for Suspected Victims of Trafficking

We welcome the inclusion of a new section on the protection of suspected victims of trafficking. In our view, however, this provision needs to be further developed to facilitate ratification of the Council of Europe Convention on Action against Trafficking in Human Beings and the UN Trafficking Protocol. In particular, specific provisions relating to the protection of suspected trafficked children and the specific entitlements of those who are granted temporary residency should be added. Furthermore, additional good practice measures should be seriously considered, such as a non-punishment clause and the possibility to grant temporary residency on humanitarian grounds, whether or not the victim is in a position to co-operate with the authorities. Trafficked persons should be exempted from the pre-removal powers of detention provided in the Bill. An explicit recognition of the right of trafficked persons to seek international protection and to have access to free legal aid should be included.

7. Protection for Separated Children

We are disappointed that no new provisions have been included to improve protection for separated children, given the concerns about the shortcomings in the current system outlined in our previous submission and in the recent recommendations of the Special Rapporteur on Child Protection. Separated children are entitled to protection, and measures should be put in place to improve identification, age assessment, registration, family tracing, guardianship, best interests determination, treatment and care. In our view, there is a need for a specific new provision, in line with Ireland’s obligations under the Convention on the Rights of the Child (as outlined in General Comment No. 6) to comprehensively address these issues and provide for the granting of long-term residency when that is deemed to be in a separated child’s best interests.

8. Family Reunification

The Bill provides a statutory right for refugees and persons granted subsidiary protection to apply for family reunification (Section 50). However, the definition of ‘family’ is too narrow, Minor refugees are not allowed to apply for their siblings, which can place parents in an unacceptable dilemma of whether to join their child in Ireland or remain in their country of origin with their other child/children. Only spouses are included and not unmarried partners even if they can prove a long term relationship. The Bill fails to address the rights of family reunified persons in the event of death or marriage breakdown. In addition it fails to provide for the right of appeal for those whose applications for family reunification have been unsuccessful.

9. Detention

We were disturbed to see that increased powers of detention have been added to the 2008 Bill, for example, in section 70 (1), (2) and (3). There is now provision in the Bill to detain persons at every stage of the protection process. As the legislation stands, a person seeking protection could be detained from their point of arrival to their point of removal. There is also the possibility of detaining children in violation of the Convention on the Rights of the Child. We would strongly urge consideration of alternatives to detention, noting UNHCR Guidelines, which allow for detention only in exceptional circumstances and for minimal periods.

10. Deemed Withdrawal/No Appeal Rights

There are no appeal rights where a protection application is deemed withdrawn (whether at first-instance or upon appeal). This seems to be inconsistent with the Procedures Directive, Article 39 (1), which states: “Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal against… (b) the refusal to reopen the examination of an application after its discontinuation (pursuant to Articles 19 and 20 of the Directive).” Further article 20(2) of the Directive requires States to ensure that an applicant is entitled to request that his or her case is reopened following a discontinuation. (Section 89 of the Bill, as currently drafted, is unclear as to its impact on this crucial question, which goes to the heart of protection against refoulement for this issues).

11. Leave to Remain/Humanitarian Considerations

As outlined in the Bill, protection applicants who are not entitled to protection in the State may be granted residence permission as per Sections 79 (2) (c) and 83. However, in those sections, humanitarian considerations are not listed and it is unclear who would meet the ‘compelling reasons’ criterion and whether or not residence criteria (at Section 31) will also be applied. We are concerned that vulnerable persons who are now granted leave to remain status as well as those who cannot be refouled may be denied residence permission under the terms of the Bill, particularly if the residence criteria are applied.

12. Refoulement

The combination of the Dublin Regulation rules and the safe-third-country and safe-country-of-origin concepts, as well as rules on carrier sanctions and transporters' liability, limited access to interpreters and lawyers and the lack of suspensive effect of certain appeal procedures constitute a threat to the principle of non-refoulement. (See European Parliament Resolution A5-0451/2002 of 15 January 2003 Report SWIEBEL (2001)). Also, provisions relating to the breach of conditions leading to revocation and Section 97(11) (c) (obligation to remove oneself and power of removal without notice) increase the risk of refoulement.

13. Procurement and Exchange of Information

There are a variety of provisions in the Bill regarding the procurement and exchange of information. In this regard, we stress the need for consent, confidentiality and data protection. We would like to seek clarity on the necessity, nature and implications of some of these provisions including stated restrictions on the application of the Data Protection Act and Freedom of Information Act. With respect to the acquisition of information, children should not be required to furnish biometric data without their consent and the consent of their guardian. Age assessment measures should be in line with the minimum standards outlined in the Procedures Directive.

14. Judicial Review

Access to Judicial Review, which provides crucial judicial oversight of the asylum process, is severely curtailed by s.118. Given the role that judicial review plays in the Irish legal system, in safeguarding compliance with the Irish Constitution and requirements of due process, we would ask that these be reconsidered. Access to judicial review is an important marker of a State based on rule of law. In particular, s.118(7) should be removed, given its potential to deter lawyers from seeking the remedy of judicial review. Strict time limits and constraints are already in place, given the ‘substantial grounds’ requirement and 14 day time limit introduced in the Illegal Immigrants (Trafficking) Act. The additional restrictions imposed in s.118 (3) could potentially remove an important check on the asylum process. As we have seen to date, such checks and balances are essential to ensuring that the asylum process meets the standards that legislation and policy seeks to achieve. These restrictions may also contravene article 13 of the ECHR, which provides a right to an effective remedy, including where non-refoulement rights in article 3 may be threatened. We would hope that improved procedures and greater transparency in the process would reduce the numbers of applications for judicial review proceedings.

15. Training of Immigration and Refugee and Protection Status Determination Officers

We are concerned that there is no explicit reference underlining the importance and need for rigorous, comprehensive and ongoing training for any officer undertaking immigration duties and protection assessments, strict guidelines, and minimum criteria for the recruitment and training of officials and effective safeguards setting out the requirements of human rights law and standards, as required by the EU Procedures Directive. Guidelines and specific provisions that address the special needs of vulnerable persons, including survivors of violence, in particular sexual violence and torture, and traumatized asylum-seekers should be introduced. Failure to adequately train all officers could potentially represent a serious risk of flawed decisions and non-compliance with the requirements in EU asylum provisions, especially in relation to the Qualification Directive as transposed.

16. Monitoring

In order to ensure compliance to our international obligations, it is imperative that independent monitoring and quality assessment mechanisms, such as that of the UK Quality Initiative Project developed by UNHCR, should be established and given access to randomly selected samples of files in order to assess the quality of decision-making, identify gaps in existing decision-making procedures and address the appropriate training and resources needed to fill these gaps. In this way issues and weaknesses could be identified and corrective advice provided and the publication of these reports would ensure transparency and accountability

Contact Details for Further Information:

Integrating Ireland 17 Lower Camden Street, Dublin 2 Tel: +353-1-4759473 Website: www.integratingireland.ie	Refugee Information Service 18 Dame Street, Dublin 2 Tel +353-1- 645 3070 Website: www.ris.ie
Immigrant Council of Ireland 2 Saint Andrew Street, Dublin 2 Tel: +353-1-6740202 Website: www.immigrantcouncil.ie	Migrant Rights Centre Ireland 55 Parnell Square West, Dublin 1 Tel: +353-1-8897570 Website: www.mrci.ie
Irish Refugee Council 88 Capel Street, Dublin 1 Tel: +353-1-8730042 Website: www.irishrefugeecouncil.ie