Asylum Seekers and the Right to Work: The Supreme Court Decision

Supreme CourtBy virtue of section 9(4) of the Refugee Act 1996, asylum seekers are absolutely prohibited from seeking or entering employment in Ireland. This provision has now been replaced by section 16(3)(b) of the International Protection Act 2015.  This provides that an asylum seeker,

shall—….

(b) not seek, enter or be in employment or engage for gain in any business, trade or profession…

Is this absolute prohibition on asylum seekers from entering, seeking or being in employment unconstitutional. The Irish High Court said no. The Irish Court of Appeal said no (see Maria Hennessy’s analysis of these decisions here).  The Irish Supreme Court has answered yes.

O’Donnell J (and the other six Supreme Court judges who agreed with this decision) have now decided to adjourn proceedings  for six months, after which an order will be made declaring the absolute prohibition of asylum seekers from exercising a right/freedom to work, unconstitutional. The Supreme Court agreed with the Court of Appeal ruling that no challenge existed to this prohibition under the ECHR Act 2003 (which I think is very problematic..) nor the European Union Charter of Fundamental Rights.

As O’Donnell J. noted, the core question that the Supreme Court had to decide could be broken into three core parts:

  1. Whether there is an right to work under the Irish Constitution?

O’Donnell J. decided that yes, there is a qualified right to work under Art. 40.3 of the Irish Constitution. The reason I am saying qualified, is because, in light of earlier jurisprudence, O’Donnell J. has categorised this as a freedom to work, subject of course to other considerations (i.e. qualifications, experience to enable a person conduct the work they want to). The freedom to work goes to the “essence of human personality” (para. 13), even if (para. 15)

Much work is drudgery, often the subject of complaint rather than celebration, and most often an economic necessity as a means to live a chosen life rather than an end in itself.

O’Donnell noted that the constitutional recognition of what might be called a right or freedom to work does not entail obligations for provision of work, or even require the Government to adopt economic policies to enable full employment (para. 12).

However, the freedom to work recognises the “essential equality of human persons mandated by Article 40.1” of the Irish Constitution (para. 13).  Interestingly, and the first time ever to my knowledge, an Irish Court (and the Supreme Court no less) has relied directly on a general comment from the UN Committee on Economic, Social and Cultural Rights (para. 16) on the right to work:

The right to work is essential for realizing other human rights and forms an inseparable and inherent part of human dignity. Every individual has the right to be able to work, allowing him/her to live in dignity. The right to work contributes at the same time to the survival of the individual and to that of his/her family, and insofar as work is freely chosen or accepted, to his/her development and recognition within the community.

The Supreme Court stated that this description is “broadly consistent with that which was the background to the constitution” (para. 16). By exercising a freedom to work, a person can then ensure the protection of his/her other rights, within the family sphere, within the social sphere and within the societal sphere (para. 15). The right to work or more precisely the freedom to work, has been recognised by the Supreme Court as a fundamental part of human personality.

2. Whether  an asylum seeker can rely on this constitutional freedom to work?

The Supreme Court did note that a non- (EU) citizen has no automatic right to work in Ireland, this is subject to permission being granted. However, asylum seekers who are lawfully in the State for the duration of their protection claim, cannot be compared to other migrants who might be seeking a permission to work in Ireland. The right to work which goes to the “essence of human personality”, cannot be absolutely excluded for those seeking asylum. Work is fundamentally connected to ‘dignity and freedom’ (para. 15) and cannot be withheld from non-citizens.  ‘Significant distinctions’ can exist in the field of entry to employment between citizens and non-citizens and the Supreme Court stated the Oireachtas and “(where appropriate) [the] executive” judgment on the precise contours of the right to work for asylum seekers will in the main be respected by the courts.  The Supreme Court noted that the “pull factor” argument is a legitimate argument the Oireachtas may make reference to (para. 18). The Oireachtas may determine that by granting the right to work, it may make it more difficult to remove an asylum applicant who is not entitled to protection. In addition, the Oireachtas may have a power to limit the freedom to work for asylum seekers “to defined areas of the economy perhaps where there is a demonstrated need.” (para 18)

Therefore, while an asylum seeker may have the freedom to work, the Supreme Court decision provides significant scope for the Oireachtas to place limitations on this, and limitations that could not be placed on citizens. Its hard to equate the Supreme Court’s views on what may be permissible limitations, with the Supreme Court noting in para. 20 of its judgment the “damage to the individual’s self-worth and sense of themselves”.

3. What Next?

The Supreme Court decided that “in principle” they were prepared to hold (at para. 21):

where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s.9(4) ( and re-enacted in s.16(3)(b) of the 2015 Act ) is contrary to the constitutional right to seek employment. However, since this situation arises because of the intersection of a number of statutory provisions, and could arguably be met by alteration of some one or other of them, and since that is first and foremost a matter for executive and legislative judgement, I would adjourn consideration of the order the Court should make for a period of six months and invite the parties to make submissions on the form of the order in the light of circumstances then obtaining.

The ball is now firmly in the court of the Oireachtas. However, the Oireachtas must be reminded (contact your TD here), that they are not starting from a blank slate.

First, the Irish High Court has already ruled that maladministration in rendering of a lawful decision on a protection claim may result in damages being awarded to an asylum seeker. Therefore, whatever course of action the Oireachtas takes, lets get this right. There has to be some focus on the ability of our quasi-judicial bodies who determine protection claims to do their work efficiently, but most importantly to be fair to asylum applicants.

Second, It would appear, that if Ireland became part of how European Union society deals with this question, then our Parliamentarians need to look no further than EU law for a solution to this constitutional protection of asylum seekers right to work. The Recast Reception Directive (which Ireland is not bound by), provides asylum seekers a right to work should generally be granted after 9 months where a first instance decision has not been rendered on a refugee/protection claim. The McMahon Working Group on the Protection Process and Directive Provision made a recommendation  (para 5.49) that once the International Protection Act 2015 was operating efficiently, that Ireland abide by this 9-month rule. Whatever the Oireachtas decide, this constitutional right of asylum seekers to have a freedom to enter employment must be effective, and not illusory (borrowing how the European Court of Human Rights insists on the realness of granted rights).

Image credit: Michael Foley

Asylum Seekers and the Right to Work: The Supreme Court Decision

Northern/Ireland After Brexit: Exploring the Human Rights Impact

#BrexitRightsOn Wednesday, May 3 2017 from 1.30pm UCD Centre for Human Rights is hosting a seminar in the Irish Human Rights and Equality Commission (map here) on Northern/Ireland After Brexit: Exploring the Human Rights Impact.
With five speakers engaging with intersections of constitutionalism, gender, human rights and borders,this seminar seeks to reflect on human rights implications of Brexit upon the constitutional settlement(s) on this island.
The full programme, speakers and paper abstracts can be accessed here.
Seminar delegates can register for the conference here (selecting the free of charge option unless CPD is required, for which there is a €60 charge)
Northern/Ireland After Brexit: Exploring the Human Rights Impact

Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

imagesThe length of time that asylum seekers reside within direct provision accommodation, continues to cause significant concern, as it has done so for almost seventeen years.  The practical impact of the implementation of the limited recommendations contained within the  McMahon Report still remains to be fully seen. The Minister for Justice and Equality has stated that 80% of all recommendations made by the McMahon Report are implemented or are being implemented. However, this claim has not to date been backed up with comprehensive assessment from the Department of Justice.  The commencement of the International Protection Act 2015 on 31 December 2016, will hopefully ensure that persons in the protection system receive a fair, procedurally proper and clear decisions on whether they qualify for protection in a timely manner. However, as noted by David Costello, Chief International Protection Officer at a seminar last week, there are 4,000 cases to hand in the International Protection Office (IPO) due to the commencement of the International Protection Act. [With thanks to Fiona Finn, CEO of NASC for making me aware of this]. Oldest cases will be decided first. Those already with a negative determination of refugee status by the now abolished Office of the Refugee Applications Commissioner under the old law, will return to the IPO for determination of their subsidiary protection claim. If subsidiary protection is rejected by the IPO decision maker, then both refugee and subsidiary protection appeals will be considered by the International Protection Appeals Tribunal. Whether this impacts slightly or majorly on timely and fair delivery of protection decisions remains to be seen. A case decided last week may have significant impacts on the right to a timely decision on a protection claim. Continue reading “Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times”

Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

Irish Human Rights Bodies: Permitting Pre-Clearance to Operate in Ireland May Violate Human Rights

HR Grps 21

 Joint Statement from Irish Human Rights Organisations

Monday, 30 January 2017

 

FOR IMMEDIATE RELEASE

President Trump’s Executive Order adopting a targeted ban on refugees and migrants from certain countries should be strongly and categorically condemned by the Irish government. This Executive Order is a barely concealed attempt to discriminate on nationality and religious grounds, itself a gross violation of freely accepted international human rights obligations. We stand in solidarity with US civil society organisations working to uphold the legal rights of all those affected by this Executive Order.

Closer to home, we express collective concern that the operation of US pre-clearance at Dublin and Shannon Airports may result in individual Gardaí and immigration officials providing assistance to US pre-clearance officials’ implementing the Executive Order.

We welcome the call by the Minister for Children and Youth Affairs, Katherine Zappone for an urgent review of the Irish pre-clearance agreement with the US.

We call on the Minister for Foreign Affairs and Trade and the the Minister for Justice and Equality to take steps to immediately:

  1. Conduct an urgent review of the pre-clearance system operating in Ireland and take appropriate action, up to and including suspension of pre-clearance agreement, where there might be a reasonable chance of a person’s rights under the constitution, EU or the European Convention on Human Rights may be under threat.
  1. Provide appropriate information on the applicable law and procedures to any person refused pre-clearance on the basis of the operation of the Executive Order. Irish immigration officials should also give any person refused pre-clearance the opportunity to seek legal advice. The organisations issuing this statement stand ready to give advice and/or make appropriate referrals, to any person refused pre-clearance in Ireland on the basis of the Executive Order.
  1. Clarify the role of Gardaí and immigration officials in the US pre-clearance process to ensure that in the exercise of their public functions, a person’s rights under the Irish Constitution, European Convention on Human Rights, EU law or international human rights law will not be violated.

 

Signed:

Brian Killoran, CEO of Immigrant Council of Ireland (ICI)

Colm O’Gorman, Executive Director of Amnesty International Ireland

Edel McGinley, Director of Migrant Rights Center of Ireland (MRCI)

Eilis Barry, CEO of Free Legal Advice Centres (FLAC)

Fiona Finn, CEO of Nasc, the Irish Immigrant Support Centre (Nasc)

Liam Herrick, Executive Director of Irish Council for Civil Liberties (ICCL)

Nick Henderson, CEO of Irish Refugee Council (IRC)

Signatories are available for interview, please contact:

Caroline Reid, IRC, caroline@irishrefugeecouncil.ie; Ph: 085 858 5510

Clare Herbert, Amnesty International Ireland, media@amnesty.ie ; Ph: 085 814 8986

Edel McGinley, MRCI, edel@mrci.ie;  Ph: 087 748 5695

Emily Glen, ICCL, emily.glen@iccl.ie; Ph: 087 998 1574.

Jennifer DeWan, NASC, jennifer@nascireland.org; Ph: 086 085 3923

Pippa Woolnough, ICI, pippa@immigrantcouncil.ie; Ph: 085 835 3757

Yvonne Woods, FLAC, yvonne.woods@flac.ie FLAC, Ph: 01 887 3600

 

Irish Human Rights Bodies: Permitting Pre-Clearance to Operate in Ireland May Violate Human Rights

Q & A: US Preclearance Procedures in Ireland and the US Presidential Executive Order

This post has had input, or has relied on some ideas, from Fiona de Londras, Mairead Enright, Colm O’Cinneide and Darren O’Donovan.

Q1: What is the effect of the Presidential Executive Order that bars refugees and citizens of certain countries from entering the United States?

A1: The Executive Order generally suspends issuing visas for 90 days for Iranian, Iraqi, Libyan, Somalian, Sudanese, Syrian and Yemeni citizens under the US visa-waiver programme. These are all pre-dominantly Muslim countries. This includes dual-nationals, as with some of these countries you cannot surrender your citizenship. Therefore, an Irish citizen, who was born in Iraq, whether she has Iraqi citizenship or not, will be impacted by the this ban. The Executive Order also suspends the US Refugee Admissions Programme, permanently excluding Syrian refugees, and limiting refugee in-take for 2017 to 50,000 (almost half of what it was supposed to be). As seen from the news over the last number of hours, many people are being caught up in transit from this ban. Dual citizens (who are not US citizens) but who may be lawfully living in the United States, but travelling for work, are caught up in this ban. The Executive Order is nothing more than discrimination based on religion.

Q2: Does the Executive Order apply in preclearance in Irish airports?

A2: Yes, as reported yesterday, the Executive Order applies in Irish airports. The preclearance officers will apply this Executive Order.   US preclearance screening operates in select locations globally (i.e. in Canada (specifically Calgary, Edmonton, Halifax, Montreal, Ottawa, Toronto, Vancouver, Victoria, Winnipeg), the Caribbean (specifically Freeport, Nassau, Bermuda, Aruba), Ireland (specifically Shannon and Dublin), and the United Arab Emirates (specifically Abu Dhabi International Airport)).The American Civil Liberties Union (ACLU) gained a stay on  deporting persons stopped from entering the United States due to the the executive order. This only impacts those on US territory.

Q3: Does Irish law apply in preclearance areas in Irish airports?

A3: Irish law governs the operation of preclearance areas in Irish airports by the Aviation (Preclearance) Act 2009 and 2011 Regulations. The 2009 Act gives effect to the Agreement between the Government of the United States of America and the Government of Ireland on Air Transport Preclearance (Preclearance Agreement 2008). It is important to note that the Agreement between the US and Ireland cannot be directly relied upon by individuals in Irish courts. While the full text of the agreement is set out in the 2009 Act, this is “for convenience of reference”. Irish courts have previously interpreted “convenience of reference phrases” to mean that the international agreement is NOT part of Irish law. Nevertheless, Article II(1) of the Preclearance  Agreement 2008, provides:

 “Nothing in this Agreement shall be construed as diminishing the rights enjoyed by individuals under the Constitution and laws of Ireland”.

This phrasing is not utilized in the Aviation (Preclearance) Act 2009. However, we would submit that as with any legislation, it must be interpreted considering the State’s obligations to protection human rights, in particular under the Constitution and the ECHR Act 2003.

Q4: What powers do preclearance officers have in Dublin and Shannon Airports?

 A4: Preclearance officers have a significant number of powers set down in section 5 of the 2009 Act. These include search and detention (for a limited period of time) powers.  Preclearance officers can refuse entry onto an aircraft to a person who is “found to be ineligible for entry into the United States.” This includes operating the discriminatory Executive Order.

Q5: Are Irish officials involved in the operation of preclearance areas?

A5: Yes. As provided for under the 2009 Act, Gardaí and members of Customs and Excise may be involved in supporting the exercise of powers and duties of preclearance officers in the preclearance areas.

The Irish Foreign Minister, Charlie Flanaghan, has issued a statement expressing concerns about the changes in US immigration policy. The claim that this is solely an issue of US immigration and refugee policy is wholly incorrect given Ireland’s involvement in pre-clearance procedures in Dublin and Shannon Airports.

Q6: What rights do people have under Irish law if they are refused preclearance in Dublin and Shannon Airports?

A6: Where an individual is refused preclearance and not permitted to fly to the United States, then Irish immigration officials will accompany that person. The person refused is then at the “frontiers of the State”. Therefore, a person refused preclearance due to the US Executive Order then has rights to request entry to Ireland, including (of course depending on the situation) a potential right to claim international protection (refugee or subsidiary protection) in Ireland. Ireland also has an obligation not to return that person to a country (which may or may not be the country they boarded an initial flight to Ireland) where they face a serious chance of being persecuted or tortured. This is known as the duty of non-refoulement.

Q7: Might the application of the Executive Order at preclearance in Dublin and Shannon Airports be unlawful per se?

A7: It is arguable that this is the case.

First, Ireland continues to have international legal obligations in relation to preclearance areas as they are within the jurisdiction and territory of the state. These legal obligations CANNOT be set aside by its Preclearance Agreement with the United States. These obligations may mainly emerge from the equality guarantees in the Irish constitution and Ireland’s obligations under the European Convention on Human Rights.

Second, where the Executive Order impacts on EU citizens (including Irish citizens) with dual citizenship Article 18 TFEU may be engaged. This prohibits discrimination based on nationality for EU citizens, and likely prohibits the facilitation by state officials (including immigration officials) of discriminatory actions of US preclearance officers.

Third, it is arguable that s. 42 of the IHREC Act 2014 applies. This requires a public body “in the performance of its functions” to “have regard to the need to…eliminate discrimination…protect the human rights of its members, staff and the persons to whom it provides services”. The Act defines a public body as (inter alia) “a Department of State…for which a Minister of the Government is responsible” (excluding the Defence Forces). This, thus, includes the Gardaí and Customs and Excise, which as already noted assist in the administration of the preclearance areas and the application of their powers and duties by preclearance officers.

Please write to your local T.D and let the Irish Human Rights and Equality Commission know that you believe they should exercise their powers to investigate preclearance procedures in Dublin and Shannon Airports. 

Q & A: US Preclearance Procedures in Ireland and the US Presidential Executive Order

Call for Contributions & Engagement #directprovision16: Direct Provision 16 years on, and on, and on…

DirectProvision16Post by, Caroline Reid, Communications Officer with the Irish Refugee Council

#DirectProvision16

On April 10th 2016 the system of Direct Provision will be 16 years in existence. For the last few years this date has been marked by many people contributing to an open call for submissions (see www.humanrightsireland.ie or #DirectProvision15). These submissions have been varied and came from many different people, sectors and angles. They all served to highlight and explore the failings of Direct Provision and the detrimental impact it is having, and has had, on the men, women and children forced to live within it. The date has been marked retrospectively up until now. This year we want to look forward and concentrate on what could be.

The Government say that there is no alternative.

They say that alternatives have never been put forward.

They say if they end Direct Provision it will mean over 4,000 people will become homeless, as if that is what those who campaign for an end to this inhumane system are advocating for.

Alternatives are possible, they are achievable, but unfortunately there has been no political will from our successive governments to address Ireland’s current and ongoing form of institutionalised living.

Last year saw thousands of people across Ireland offer rooms, houses and other practical solutions for the initial reception of refugees.

The principles of initial short term reception for people in need of asylum have been talked about for quite some time. Based on these, and perhaps more focused areas or groups that may be of interest to you, we are this year not focusing on the legacy of Direct Provision. Instead we are looking forward and we are making a public call for submissions on what alternative models could look like.

Your idea may be for a general initial reception system, a community cooperative scheme, housing collectives or for schemes that enable people to live with people in the community. Perhaps you have something in mind for a particular group of people? We are seeing different models being tried out in other European countries, e.g. for the LGBTIQ asylum seeking community; Female only housing; Specialised accommodation for people who have particular vulnerabilities; Family only accommodation; Perhaps you think there should be special provisions for young people who turn 18 and are removed from their foster carers as they are now considered “aged out minors”? The only thing restricting your submissions is your own creativity in developing a humane and open reception system for people.

Submissions can be written, visual, a blueprint, design based, or simply links to other initiatives happening across the world that you believe we can replicate here. The online campaign will hopefully culminate in plenty of food for thought for our soon to be Government. Let’s make #DirectProvison16 something that we can build on and move forward with. Let’s create political will by offering practical solutions that counter the current government line.

Overarching principles:

~ cap on length of time in initial reception

~ embodies the best interests of the child

~ allows for self-determination

~ is based on care, not profit

~ identifies & supports individuals with special needs & vulnerabilities early on

~ makes early legal advice available

~ includes independent complaints (to the national Ombudsmen)

~ includes inspection mechanisms

~ provides the right to work

~ fosters rather than deters social inclusion

  1. If you are interested in contributing you should email your submissions to enddirectprovision@gmail.com
  2. Materials should be forwarded by Wednesday 6th April at 6pm (late arrivals can’t be guaranteed to go live but we will try our best!).  The material must relate to alternatives to the direct provision system, it may simply be your thoughts or reflections.
  3. A number of organisations and individuals have already been invited to contribute; with growing support for an end to Direct Provision this is an excellent opportunity for you to demonstrate your support for this call and to show that you stand in solidarity with the people failed by this inhumane system.

For those not wishing to submit a blog post, but wishing to other wise engage, please let others who may be interested know about this blogathon:

  1. Call your local TD (or their office) and let them know about direct provision; ask your TD what they are doing on your behalf to highlight the failure of the direct provision system. You can find contact details here.
  2. Write or email your local TD on 10th April 2015 asking them to explore and support alternatives to Direct Provision (email addresses available here).
  3. On Twitter, use the hashtag #directprovision16 , please share posts, engage in debate and discussion, raise awareness with friends, family and colleagues.
  4. All of the submissions will be available on www.humanrights.ie or on a Tumblr page set up to mark 16 years of direct provision and what the future could look like if there was political will to change what has become a profiteering system of reception.

Please share this information on your own Facebook/Twitter/Tumblr page and aim for a Twitter storm for the hashtag #directprovision16

Call for Contributions & Engagement #directprovision16: Direct Provision 16 years on, and on, and on…

A&L Goodbody and Irish Refugee Council Asylum Law Award 2016

Asylum2016header1The A&L Goodbody and Irish Refugee Council Asylum Law Award 2016 provides UCD students with the opportunity to gain invaluable legal expertise before applying for a career in law. Put your legal drafting and advocacy skills to use in our case study and gain an opportunity to work with the Irish Refugee Council and assist individuals who are seeking refugee status.

The Task

Your task is to review a case study and draft a written legal submission of no more than 2,500 words to the Office of the Refugee Applications Commissioner in support of your client’s application for refugee status pursuant to the Refugee Act, 1996 (as amended). You can download the entry pack, which includes the assigned problem question here.

The Prize

An internship: A four-week internship with the Irish Refugee Council, giving you exposure to real life cases and a first step in your legal career.

€2,000 in cash: Towards your educational fees – or that college loan!

The Judging Panel

Your entry will be reviewed by a judging panel made up of the following industry professionals:

Brian Collins, Senior Solicitor, Irish Refugee Council

Liam Thornton, Human Rights Lecturer, University College Dublin

Eamonn Conlon, Partner and Head of Corporate Responsibility, A&L Goodbody

To enter the competition, please send your submission to UCDLawAward@algoodbody.com by midnight on Friday, 18th March 2016.

Special UCD lecture to help write your entry!

An Introduction to Irish Asylum Law” will take place on Tuesday 16th February from 6pm to 8pm in the William Fry Theatre, UCD Sutherland School of Law.

This introductory seminar on Irish asylum law may be of use to those interested in submitting an entry to the Asylum Law Award 2016. It may be helpful in relation to constructing a response to the case study as posed. This seminar, delivered by Dr Liam Thornton, UCD Sutherland School of Law, will explore:

The legal definition of refugee, including:

  1. What is a ‘well-founded fear’?;
  2. What is meant by the phrase ‘persecution’?;
  3. Exploration of the nexus grounds of particular relevance to the problem question; and
  4. Exclusion from refugee status.

All UCD students (law and non-law students) considering applying for the Asylum Law Award 2016 are welcome to attend this seminar.

A&L Goodbody and Irish Refugee Council Asylum Law Award 2016

Deportation, ISIS and the Irish Courts

Four_Courts,_Dublin,_IrelandHuman Rights in Ireland welcomes this guest post from Darragh Coffey. Darragh is a PhD Candidate in the Faculty of Law, Darwin College, University of Cambridge. 

 

The Court of Appeal is currently hearing arguments as to whether a man alleged to have links to the so-called Islamic State (IS) should be deported. While many of the facts of the current case, including the state to which the man is to be deported, remain subject to reporting restrictions, a number of issues are clear: The Government allege that the man in question poses a threat to national security and on that basis seek his deportation. For his part, the man claims that he has previously been tortured in the country to which he is to be sent and that if he is deported he will face a real risk of being ill-treated again due to the allegations of his links to IS, which he denies. Such challenges to deportation orders are not uncommon in European states; a notable example was the United Kingdom’s embattled attempt to deport Abu Qatada to Jordan which was finally successful in 2012.

Like the United Kingdom and all other EU member states, Ireland is a signatory of the European Convention on Human Rights (ECHR). The central legal issue in cases such as this stems from Article 3 of that Convention and the 1989 decision of the European Court of Human Rights in Soering v UK. Article 3 States that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ The Soering case established that if an ECHR contracting state expels an individual to another state where substantial grounds exist for believing that he or she would face a real risk of suffering treatment proscribed by Article 3, then the ECHR contracting state would violate that provision by so doing.

The European Court of Human Rights has therefore read an implicit prohibition of return to a risk of torture or inhuman or degrading treatment or punishment into the text of Article 3. Furthermore in 1996 and again in 2008 the Strasbourg Court held that this implicit ban on sending individuals to states where they may be ill treated is absolute. In other words the behaviour of the individual or the threat that he or she poses to the host state, no matter how serious, cannot be taken into account to justify the deportation if there is a real risk that he or she will be ill treated. Article 3 therefore enshrines a very robust and not uncontroversial protection against return to ill treatment.

This means that if, in the case currently before the Court of Appeal, the applicant’s legal team can show substantial grounds for believing that he will be at real risk of torture or inhuman or degrading treatment following deportation, then according to long standing jurisprudence of the European Court of Human Rights –and contrary to the High Court’s finding on Monday– the threat that he poses to Irish national security cannot be taken into account when deciding whether or not he should be deported.  If the existence of such a real risk is established the Irish Government simply cannot deport him to the proposed receiving state without violating Ireland’s human rights obligations under the European Convention on Human Rights. On Wednesday, 30 December, the European Court of Human Rights indicated a rule 39 interim measure to the Irish Government, which means that even if the injunction is lifted by the Court of Appeal the Government cannot, without violating the European Convention, deport the man until his case has been fully heard.

This case provides an example of the friction that can often arise between national security and the protection of individual human rights. In many ECHR contracting states deportation is often the preferred option in national security cases. This is because information indicating that the person is a threat may be inadmissible as evidence in a criminal trial or because such a trial may require the disclosure of information that could jeopardise on-going security operations. Because of these sensitivities some governments feel it vital to maintain the ability to deport individuals identified as threats to national security. The restraint of deportations under the ECHR has therefore long caused consternation among some ECHR contracting states where deportation plays a significant role in counterterrorism policy. This has seen the advent of the negotiation of diplomatic agreements with potential receiving states and the use of special closed-evidence tribunals such as the Special Immigration Appeals Commission in the UK.  The outcome of the current case may raise important questions about how the Irish legal system is equipped to handle such challenges.

Deportation, ISIS and the Irish Courts

Open Letter: Recognition of the Travelling Community as an Ethnic Minority in Ireland

We would like to lend our strong support to the motion recently before the Dail to recognise Travellers as an ethnic minority. This is a long overdue development. The preventable tragedy of Carrickmines brings this imperative further to the fore. History will not look kindly on those individuals and political parties voting to deny Travellers this basic right to ethnic recognition.

c/o Dr. Paul Downes, St. Patrick’s College, Dublin City University

Professor Gerry Whyte, Trinity College Dublin

Leah O’Toole, Marino Institute of Education

John Fitzgerald BL

Dr. Ann Louise Gilligan (retired), St. Patrick’s College, Drumcondra

Dr. Padraig Carmody, Trinity College Dublin

Professor Ursula Kilkelly, School of Law, University College Cork

Dr. Stephen Kinsella, University of Limerick

William Binchy, Fellow Emeritus, Trinity College Dublin

Siobhan Phelan SC

Professor Aoife Nolan, School of Law, University of Nottingham

Professor Fionnuala Waldron, St. Patrick’s College, DCU

Marion Brennan, Early Childhood Ireland

Dr Mark Taylor, Goldsmiths, University of London

Dr. Marie Moran, University College Dublin

Professor Carmel Cefai, University of Malta

Dr. Audrey Bryan, St. Patrick’s College, DCU

Declan Dunne, Sophia Housing and Homeless Services,

Denise Mc Cormilla, National Childhood Network

Dr. Maggie Feeley, UCD

Dr Anthony Cullen, Middlesex University, London

Dr. Sylwia Kazmierczak-Murray, Cabra School Completion Programme

Dr. James O’Higgins Norman, DCU

Dr. Padraic Gibson, The Bateson Clinic

Dr. Susan Pike, St. Patrick’s College, DCU

Fran Cassidy, Social Policy Consultant/Filmmaker

Dr. Maeve O’Brien, St. Patrick’s College, DCU

Frank Gilligan, Ballyfermot Local Drugs Task Force

Dr. Geraldine Scanlon, DCU

Dr. Catherine Maunsell, St. Patrick’s College, DCU

Dr. Majella McSharry, DCU

Dr Liam Thornton, UCD

Open Letter: Recognition of the Travelling Community as an Ethnic Minority in Ireland

Book Launch: International Human Rights: Perspectives from Ireland, 8 December 2015

EganOn December 8th 2015,  UCD School of Law will host the launch of Suzanne Egan’s new edited collection International Human Rights: Perspectives from Ireland. The book will be launched by the Chief Commissioner of the Irish Human Rights and Equality Commission (IHREC), Emily Logan.

Location: Gardiner Atrium, UCD School of Law

Time/Date: 6.30pm on 8th December 2015. 

RSVP: law.events@ucd.ie 

International Human Rights: Perspectives from Ireland examines Ireland’s engagement with, and influence of, the international human rights regime. International human rights norms are increasingly being taken into account by legislators, courts and public bodies in taking decisions and implementing actions that impact on human rights. Featuring chapters by leading Irish and international academic experts, practitioners and advocates, the book combines theoretical as well as practical analysis and integrates perspectives from a broad range of actors in the human rights field. You can access the full table of contents for this book here.  Egan’s collection explores:

  • The philosophical development and challenges to/of human rights;
  • The international human rights framework (UN human rights council; UN Treaty system; EU and ECHR);
  • Implementing human rights in Ireland (Magdalenes, socio-economic rights, rights of the child; human trafficking; religion; privacy; refugee definition; criminal justice, policing and conflict).
  • Implementing human rights abroad (Irish foreign policy and obligations of Irish organisations).

Bloomsbury are offering all registered students (full and part time) a 40% discount on the book, with the discount code: IHR40%. You should enter this code at checkout

Book Launch: International Human Rights: Perspectives from Ireland, 8 December 2015