We are pleased to welcome this guest post from Anne Neylon, who is a PhD candidate in Law at University College Cork. The Court of Justice of the European Union has criticised Ireland’s failure to take prescribed steps to set out in law how it will implement into domestic law standards on asylum procedures agreed by EU Member States.
On the 7th April 2011, the Court of Justice of the European Union (CJEU) found that Ireland had failed to fully transpose Directive 2005/85/EC (the Procedures Directive) within the prescribed period. The CJEU found that by failing to provide the minimum standards for the granting and withdrawing of refugee status as provided for in Article 43 of the Procedures Directive, Ireland had failed in its obligations under Article 258 TFEU. Under Article 258 TFEU, the Commission may bring infringement proceedings against a Member State.
Prior to this ruling, the European Commission had issued a reasoned opinion, obliging Ireland to properly transpose the Procedures Directive within a certain period of time. Ireland failed to do and so the Commission brought the case before the CJEU. In this case, Ireland argued that draft national regulations had been formulated and that these draft regulations would transpose aspects of the Procedures Directive which had not already been transposed through existing national regulations. The CJEU rejected this argument, noting that previous EU case-law firmly established that changes made to Member State domestic law after the period laid down in the reasoned opinion could not be taken into account at this stage of Article 258 TFEU proceedings.
This judgment by the CJEU sends a strong message to Ireland about its failure to fully transpose the Procedures Directive. Under Article 258 TFEU, the Commission has a great deal of discretion as to whether it will continue in taking formal action against a Member State. There is plenty of scope in Article 258 TFEU for the Commission to discontinue proceedings against a Member State if it believes that to do so would be a politically astute course of action. By taking the case against Ireland to the CJEU, the Commission has signalled that Ireland’s persistent lack of transposition of the Procedures Directive is entirely unacceptable.
Ireland attempted to defend its lack of transposition by pointing to the “national draft regulations”, the Immigration Residence and Protection Bill (IRP Bill) 2010. The IRP Bill was first presented as a proposal in 2006, and is now due to be once again brought before the Dáil by the new Government. The IRP Bill, in its last incarnation in 2010, was a long and complex document. Section 88 of the IRP Bill 2010 provided for a single procedure for determining whether an asylum seeker’s claim should be decided as an asylum claim under the Refugee Convention or as a claim for subsidiary protection under the Qualification Directive . Though this particular change would improve the current asylum determination system, the IRP Bill 2010 does not perhaps transpose the Procedures Directive as completely as Ireland claimed it did in the immediate case. Provisions of the IRP Bill 2010 which give the Minister extensive powers in relation to protection decision procedure as well as provisions providing for the potential indefinite detention of asylum seekers all could be deemed to be incompatible with the Procedures Directive. Moreover, in sections 6(5), 59 (1) and 60 (1) of the IRP Bill 2010 provided for the summary deportation of “foreign nationals”, which could result in the removal of an asylum seeker whose protection claims had failed, potentially resulting in their being refouled.
The Article 258 TFEU action taken against Ireland by the Commission highlights the unacceptable delay on the part of the Government to properly transpose the Procedures Directive. However, as the Government proceeds to fully transpose the Procedures Directive, it must be encouraged not to merely copy and paste the provisions of the IRP Bill 2010, but to fully consider the human rights implications of any major amendments in Irish immigration and asylum legislation.