You can find my preliminary analysis of the McMahon Report on the Protection Process and Direct Provision System here.
You can access the McMahon Report here.
The McMahon Report is one of the first attempts by the State to systematically explore the total numbers of persons who are in the protection process and leave to remain process, including those who have unsuccessfully sought protection and leave to remain and who are now subject to a subsisting deportation order. Such figures had not been available as a matter of course, meant that there were significant unknowns as regards numbers within the protection process (and related migration areas such as leave to remain and those subject to deportation orders).
Some of the headline statistics emerging from the McMahon Report include:
- As of February 2015, the McMahon Report identified 7,937 persons who are in the protection process (49%), the leave to remain process (42%) and persons whose claim for protection and leave to remain was not granted, and who are subject to a deportation order (9%).
- There are 3,876 persons within the protection process. 1,189 persons have been in the protection determination system for 5 years or more.
- There are 3,343 in the leave to remain process; 2,530 persons have been in the leave to remain process for 5 years or more.
- There are 718 persons subject to a deportation order. 628 persons have an outstanding deportation order for 5 years or more.
Of this 7,937 persons in the system, 3,607 (46%) live in direct provision accommodation. 4, 330 (54%) of persons live outside direct provision. As the McMahon Report notes:
“Little is known about the living circumstances of this group. It is assumed that a significant proportion of them may have already left the State and that the remainder live with family, friends or in private accommodation at their own expense. The precise number currently in the State is unknown in the absence of exit immigration controls and/or the undertaking of a caseload verification exercise.”
It has been known, at least since the 2010 Value for Money Report on Direct Provision that significant numbers of those in the protection system do not live in direct provision. The 2010 Report, in rejecting mainstreaming of protection seekers within the social welfare and protection system, on the basis that the operation and modalities of direct provision, deterred many protection applicants from availing of this accommodation and support system. The 2010 Value for Money Report was premised on
“If conditions for entitlement to Social Welfare and Rent Allowance were changed, then those not currently availing of RIA accommodation would be expected to apply for these payments, which would more than double the projected net additional Social Welfare/Rent Allowance cost. Granting entitlement to Social Welfare and Rent Allowance could also be a ‘pull factor’ and the numbers of new asylum seekers could rise significantly.”
While not explicitly engaged with in the McMahon Report, it may have been the case that similar concerns prevented examination of whether access to the general social protection system should be granted for those seeking protection in Ireland.
Judicial Review of Decisions
A key narrative that has emerged around delays within the protection, leave to remain and deportation systems, is that protection seekers are mainly responsible for the length of time in the system, by taking judicial reviews. Minister Fitzgerald, responding to a parliamentary question in 2014, stated:
“in very many instances the delay in finalising cases is due to applicants challenging negative decisions by initiating multiple judicial reviews at various stages of the process. Thousands of applications cannot be finalised because of these legal challenges…”
There are around 1,000 persons waiting on judicial reviews as of February 2015. That is about 1 in every 7 applicants. Of those seeking judicial reviews of either Office of the Refugee Applications Commissioner (ORAC) , Refugee Appeals Tribunal (RAT) or Irish Naturalisation and Immigration Service (INIS) decisions, 82% (835) have been in the overall system for 4 years +. 66% (675) have been in the overall system for 5 years +. As regards length of time in the judicial review process, 38% (381) have been in the system for 4 years + and 5% of those awaiting judicial reviews have been awaiting hearing for more than 5 years.
The rates of challenge to decisions of ORAC, RAT and INIS for the years 2009-2014, are as follows:
- ORAC 2009-2014: 341 (3.61%) of the 9,434 negative decisions of ORAC were subject to judicial review proceedings between 2009 and 2014. “Of the proceedings that have been determined in 2009-2014 (662): 390 (58.91%) of these challenges were unsuccessful or withdrawn. 103 (11.56%) of the challenge were successful and 92 (13.90%) of these challenges were settled.
- RAT 2009-2014: RAT issued 8,392 negative decisions between 2009-2014. 1,293 (15.41%) of these negative decisions were subject to legal proceedings. Of the “proceedings determined” (1,420), 819 (57.68%) were unsuccessful or withdrawn. 166 of the proceedings (11.69%) were successful. 288 cases (20.28%) were settled.
- INIS 2009-2014: INIS issued 5,931 negative decisions in this time period. 1,678 cases (28.29%) were subject of legal proceedings. “Of the proceedings determined” (1,301), 513 cases (39.43%) of these challenges were either withdrawn or unsuccessful. 53 cases (4.07%) were successful and 753 challenges (56.5%) were settled. This very high settlement rate is attributed to the impact of the Court of Justice of the European Union’s decision in Zambrano.