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

Access to Books for Persons with Disabilities

We are delighted to welcome this guest post from Abigail Rekas.  Abigail is a EU Marie Curie Fellow at the Centre for Disability, Law and Policy, NUI Galway.  Abby’s DREAM topic is focused on using digital technology to increase access to print and other copyrighted material for people with print disabilities.

The past few years has seen a major surge in interest in access to books for persons with disabilities. This seems like a pretty simple proposition – everyone should be able to go to the bookstore and pick up a book they’d like to read. Unfortunately, this isn’t the case, for a number of reasons. Accessible publishing historically has been an expensive proposition, performed by non-profit charitable organizations. These organizations are frequently working under an exception to copyright law, because they cannot afford to license the right to reproduce the book for such a limited run and do the translation into Braille or record the audio book.

The rise of digital technology has been a Continue reading “Access to Books for Persons with Disabilities”

Access to Books for Persons with Disabilities

Law Society of Ireland & IHRC Annual Human Rights Conference

This October, the Irish Human Rights Commission (IHRC) and the Law Society of Ireland will host the 10th Annual Human Rights Conference, Promoting and Protecting Human Rights in Ireland: The Role of the Irish Constitution and European Law.  The conference will examine the impact of the Irish Constitution, the European Convention on Human Rights and EU law in advancing human rights protection in Ireland. The role of Irish courts, quasi-judicial and administrative bodies will also be considered. When: Saturday, 13th October, 2012, 10:00- 14:30pm – Where: The Presidents’ Hall, Law Society of Ireland, Blackhall Place, Dublin 7 – Fee: There is no charge for this event. Booking: While attendance at the Conference is free, it is important to book your place as space is limited, by emailing: humanrightsconference@lawsociety.ie

Speakers include:

  • Mr. Justice William McKechnie, Supreme Court,
  • Ms. Justice Mary Laffoy, High Court,
  • Dr. Síofra O’Leary, Court of Justice of the EU and Visiting Professor at the College of Europe,
  • Mr. Michael O’Boyle, Deputy Registrar, European Court of Human Rights,
  • Dr. Hannes Krämer, Legal Service, European Commission,
  • Ms. Emily O’Reilly, Ombudsman, Ms. Emily Logan, Ombudsman for Children,
  • Ms. Barbara Nolan, Head of EC Representation in Ireland,
  • Mr. Gerry Durcan SC,
  • Dr. Dympna Glendenning BL,
  • Mr. Mark Lynam BL,
  • Mr. James MacGuill, MacGuill Solicitors,
  • Mr. Des Hogan, IHRC,
  • Ms. Sinead Lucey, IHRC,
  • Ms. Anna Austin, European Court of Human Rights,
  • Mr. Patrick Dillon-Malone BL,
  • Dr. Suzanne Kingston BL, UCD,
  • Ms. Síle Larkin, the Equality Tribunal and
  • Mr. Kieran Fitzgerald, the Garda Síochána Ombudsman Commission.

Law Society of Ireland & IHRC Annual Human Rights Conference

Dealings by Irish companies in repressive countries raise concerns about business and human rights

We are delighted to welcome this Guest post from Dr Shane Darcy.  Dr Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway. A previous version of this article appeared in the Sunday Business Post on 11 March 2012.

The news that products provided by Irish companies are being implicated in repression and human right abuses overseas should not come as a surprise, given the lack of adequate regulation here. Software sold in Syria by Dublin-based Cellusys and AdaptiveMobile has been reported as being used by the Syrian government to censor text messages by protestors challenging President Assad’s rule. This is a government which the United Nations High Commissioner for Human Rights, Navi Pillay, has accused of “gross, widespread and systematic human rights violations”, amounting perhaps to crimes against humanity. As Ireland increasingly positions itself as an export orientated economy, its commitment to human rights requires that it ensure that companies operating here are human rights compliant.

This is not the first instance of involvement by Irish companies in the suppression of human rights outside of Ireland. Bloomberg reported in October 2011 that a system sold by AdaptiveMobile may have been used by Iran’s law enforcement and security agencies in their repression of political activists. Cement Roadstone Holdings has been criticised for its 25% shareholding of Israeli company Mashav, which controls Nesher Cement, supplier of concrete for the construction of settlements and the ‘separation wall’, declared to be unlawful by the International Court of Justice. Human rights is not just a matter for Continue reading “Dealings by Irish companies in repressive countries raise concerns about business and human rights”

Dealings by Irish companies in repressive countries raise concerns about business and human rights

Getting it Right: Capacity Legislation and the Convention on the Rights of People with Disabilities

Amnesty International and the Centre for Disability Law & Policy (NUI Galway) will run a seminar entitled “Getting it Right: Capacity Legislation and the Convention on the Rights of People with Disabilities” on 30 November 2011 from 9am – 1pm at the Alexander Hotel, Fenian Street, Dublin 2.  This seminar will explore how Irish legislation can reflect the changes Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD).  Article 12 of the CRPD requires a fundamental change in thinking about legal capacity and repeal of laws that restricts or denies legal capacity.  Person sharing their personal experiences of having their legal capacity called into question will address the conference.  The seminar will also be addressed by leading international legal experts Christine Gordon (speaking about the British Columbia model) and Oliver Lewis (MDAC). This seminar is timely as the Government moves towards the publication of a bill to replace the outdated Ward of Court System.  For more information see here.

Getting it Right: Capacity Legislation and the Convention on the Rights of People with Disabilities

Sex Work and Drugs in Ireland: New Research

The National Advisory Committee on Drugs has published a fascinating report entitled Drug Use, Sex Work and the Risk Environment in Dublin, available here. In particular, the report makes a number of interesting findings about drug users’ reasons for working in the sex industry:

  • All the men and women interviewed were dependent heroin users prior to engaging in sex work; a significant minority were minors at the time.
  • There were a variety of entry routes into sex work; the dominant route being through peer or friendship networks. This often happened when the person had financial problems and their friend/acquaintance paved the way for them to become involved in sex work. For a significant minority of participants this introduction happened while homeless and/or staying in emergency accommodation.
  • For most of the participants the primary rationale for engaging in sex work was economic; to ‘make ends meet’ and/or ‘for the sake of me habit’. Sex work provided a source of income and hence financial independence. Moreover, it was often considered less risky than alternative sources of income, such as drug-dealing and shop-lifting.
  • The interface between participants’ drug use and their sex work was complex. The men and women interviewed needed a continual source of funds to maintain their (often multiple) drug dependency. For most, sex work proved very lucrative in this regard. However, the increased income obtained from sex work invariably contributed to an escalation in drug use.

Wednesday’s ‘Today With Pat Kenny’ featured an exchange based on the report between a representative of the Sex Workers Alliance of Ireland, which advocates ‘a move away from portraying sex workers as victims and towards a realisation that many people choose to work in the sex industry‘ and a spokesperson for the Christian NGO Ruhama. The podcast is available here.

Sex Work and Drugs in Ireland: New Research

The Murphy Commission Report from a Legal Pluralist Perspective

Having read the Murphy Commission report I wanted to quickly summarise what it shows. The summary is very much coloured by my own research interests, which focus on the relationship between civil and religious law and is not intended to be comprehensive. Some of the main issues raised by the report are:

  • The nature of the interaction between canon and civil law in the governance of priests who had abused children. This is of relevance to the behaviour of individual agents within the church, who knew canon law but ignored relevant principles, and who favoured canon over civil law.  Many of the churchmen involved in the mass coverup of child sex abuse within the church were qualified lawyers.  The operation of canon law in relation to child sex abuse within the diocese is outlined in Chapter 4 of the report.
  • The interaction between churchmen’s loyalty to the state as citizens and fidelity to the church, and the consequences when there is a perceived conflict between them.
  • The effective construction in Ireland of a parallel legal system – with canonical trials and rules of its own about evidence and secrecy and culpability, riven with disputes about interpretation and content  – beyond the reach of civil law, which was capable – through ‘soft’ structures of government and police deference and societal respect, trust and fear  of isolating itself from the criminal justice system. That isolation was actively reinforced every time an abuse took place and those in power responded inappropriately.
  • The manner in which that parallel system was bolstered by undue deference to the church, and the relationship between that ‘soft’ deference and the hard law governing the relationship between church and state in Ireland. Did the church-state relationship and the tendency of successive governments towards the privatisation of church affairs insulate both church and state from responsibility to children?  The report seems to favour a more interventionist state, which has influence over certain aspects of church affairs. It refers to the secular functions performed by the church and the attendant blurring of the boundaries between church and state.
  • The ‘complicity’ of other areas of domestic law in bolstering the harm done under canon law. Criminal law (see Appendix 2 to the Report), the law of evidence in relation to legal privilege, rules of procedure where delay has occurred in processing a prosecution, and child protection law are obvious candidates, but we should think too about how insurance law contributed to the church’s aim of preserving its assets.
  • The effect of parallel legal systems on minority members of religious groups, such as children and the role of the civil legal system in providing an effective and empowering space within which victims of resultant harm can disrupt prevailing power relations within a religious group. One victim is mentioned as saying of the Archdiocesan officials: “you deal with me when I’m a threat to you legally but when I’m not a threat to you, you ignore me”.

What the Murphy Commission Report tells us is that impunity is produced by interaction between civil law and minority laws – in the work of individual legal subjects and in the actions of the state.

We have some in-house contributors who can post on a number of these issues, and you can expect commentary in due course. However, if any reader -in Ireland or elsewhere – has expertise enough to contribute a guest post on these or related topics you are most welcome to email maireadenright[at]gmail.com within the next 10 days or so with your proposal.

The Murphy Commission Report from a Legal Pluralist Perspective