Problems in US Preclearance in Ireland? Lawyers & Others who can help

Throughout the day I have been contacted by lawyers and others who are ready and able to help anyone caught up in the administration and application of the Executive Order in Irish airports. Here is the list. If you want to be added to it, please either let me know on twitter (@fdelond) or make it known in a comment to this post. We will keep updating this list.

NGOs
FLAC will try to arrange representation for anyone who needs it; contact them at www.flac.ie or directly on twitter @flacireland

The Immigrant Council of Ireland will also help anyone who needs it; contact at www.immigrantcouncil.ie or directly on twitter @immigrationIRL

Doras Luimní can offer support to anyone caught up in the application of the EO in Shannon Airport (Examiner report); contact them through their website

Solicitors

Gareth Noble @GarNob and all at KOD Lyons Solicitors www.kodlyons.ie

Albert Llussa, Daly Lynch Crowe and Morris Solicitors, The Corn Exchange, Burgh Quay, Dublin 2, T:+35316715618, +35314749134, E: albert@dlcm.ie, , W:

Rosemary Kingston O’Connell

Miriam WIlson-Hughes @Griff101

Matthew Kenny of O’Sullivan-Kenny Solicitors was in touch to offer help from the firm

John Anthony Devlin of Barron Morris Solicitors

Simon McGarr of McGarr Solicitors

Cahir O’Higgins Solicitors info@coh.ie Tel: 018744744

Stephen Collins, Irish Refugee Council (see comments)

Barristers
The Bar of Ireland runs a Voluntary Assistance Scheme for NGOs in need of assistance from barristers; we are sure they would help: @BarofIrelandVAS email: vas@lawlibrary.ie

Anne Fitzpatrick

Gavin Elliot @sgelliot

Emma Slattery @epslattery

Patricia Brazil 

Garrett O’Halloran

Colin Smith

Patricia Sheehy Skeffington

Rory Treanor

Aoife McMahon

David Lennon

Julie O’Leary

Ann K Stapleton

William McLoughlin

Roger Cross

Paralegals, Legal Research, General Legal Knowledge
Jo Willis @jobw

Maria Hennessy @MP_Hennessy

Joan O’Connell hello@joan.ink  @clicky_here

Catherine Thullier (see comments below)

Ciara Ní Ghabhann

Donna Lyons, researcher & attorney-at-law (New York) lyonsdm@tcd.ie

Patricia MacBridge @IRLpatricia

Academics 
Jennifer Schweppe (Limerick) @jschweppe 

Darius Whelan (UCC) @dariuswirl

Siobhan Mullally (UCC) @smullallylaw

Fiona de Londras (Birmingham) @fdelond

Media, logistics and PR
Louise Williams @loureports

Practical Knowledge of CBP & Immigration

Colm Falherty @CJayFla

Colin Lenihan @colinlenihan

Problems in US Preclearance in Ireland? Lawyers & Others who can help

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

The ‘Muslim Ban’: Suggested text for letter to members of the APPG on Ireland and Irish in Britain

Irish citizens resident in the UK may be interested in hear that there is an All Party Parliamentary Group on Ireland and the Irish in Britain, the members of which are often receptive to correspondence from Irish citizens. Below is a text that might be useful for people who want to correspondent with them on the matter of the so-called ‘Muslim ban’ recently enacted in the United States of America.

Dear

Given your membership of the APPG on Ireland and the Irish in Britain, I am writing to you as an Irish person living in the UK to bring your attention to particular concerns relating to the so-called Muslim ban implemented by President Donald J. Trump.

As you may know, the Executive Order is to be applied in US preclearance areas, including in Dublin and Shannon Airports, as well as by air carriers worldwide. I am sure you will also be aware that an increasing number of UK residents travel to the US via Ireland, particularly to avail of the preclearance arrangements there.

I am writing to you to ask you to make enquiries of the Prime Minister and relevant other Ministers as to:

  1. Assurances that have been sought by the UK government from the Irish government that the rights of EU citizens, including UK citizens, while travelling through US preclearance in Irish airports are being fully protected.
  2. Details of representations from the UK government to the government of the United States of America to ensure its full compliance with international refugee law and international human rights law.

All over the United States this weekend lawyers and others have protested against this unlawful, cruel, Islamophobic and xenophobic attempt to undermine the rule of law. I ask you to ensure that the UK government stands with them.

Given the urgency of the situation, I would appreciate your swift response.

Yours sincerely,

The ‘Muslim Ban’: Suggested text for letter to members of the APPG on Ireland and Irish in Britain

US Preclearance and the ‘Muslim ban’: Write to the IHREC

Here is a suggested text to the Irish Human Rights Commission for those who would like them to take steps available to them to assess whether the public bodies’ human rights duty under s. 42, IHREC Act 2014 is being complied with. 

Emily Logan, Chief Commissioner

Irish Human Rights & Equality Commission

16-22 Green Street

Dublin 7

D07 CR20

publicinfo@ihrec.ie

Dear Ms. Logan and members of the Irish Human Rights and Equality Commission,

As you will be aware, the US Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” is applicable in US Preclearance areas in Dublin and Shannon Airports.

Both the Agreement between the Government of the United States of America and the Government of Ireland on Air Transport Preclearance (2008) and the Aviation (Preclearance) Act 2009 make clear that an Garda Síochána and Customs and Excise officials of the Revenue Commissioners are involved in the administration of the preclearance arrangements and area.

I am writing to ask you to take the appropriate steps to assess whether all Irish public bodies involved in the administration of the preclearance area and agreement are acting in compliance with their duties under s. 42 of the Irish Human Rights and Equality Commission Act 2014.

Yours sincerely,

US Preclearance and the ‘Muslim ban’: Write to the IHREC

US Preclearance and the ‘Muslim ban’: Write to your TD

We suggest below a draft letter that people concerned with the application of the Executive Order in US pre clearance in Irish airports might find useful should they wish to write to TDs in relation to it. Of course, people should adjust it to reflect their preferred language and approach to the issue, but we hope it might be useful.

Dear

I am writing to you [as a constituent [and] citizen] to express my deep concern about the continued operation of the Aviation (Preclearance) Act 2009 and associated agreements in Irish airports during the administration of President Donald J. Trump.

In the first week and a half of his presidency we have already seen Trump attempt to subvert the Immigration and Nationality Act 1965 in order to apply discrimination in immigration and undermine international refugee law through Executive Order. As a result of the preclearance agreement between Ireland and the USA, this Order is being applied on Irish soil and in Irish airports. As you will be aware, Article II(1) of that agreement makes it clear that Irish law continues to apply in those preclearance areas. The application of this Order may result in, for example, EU Citizens with dual citizenship with a listed country experiencing nationality based discrimination, facilitated by Irish law, in clear contravention of the TFEU. I remind you also that it is not  possible effectively to renounce citizenship in Iran, Syria, Libya and Yemen.

I remind you that under the 2009 Act, those turned away at preclearance are at the frontiers of the state and must be treated in accordance with Irish law. The Irish state also has obligations of non-refoulement which may arise. Furthermore, any Irish officials including Gardaí who may be involved in any way in policing the preclearance area are obliged as always to act in full compliance with the Constitution and with the ECHR.

Even if Congress supports President Trump’s policies through legislation, thus amending the 1965 Act inasmuch as that is constitutionally permissible, Ireland must ensure that rights under the Irish Constitution continue to be protected in these preclearance areas, and that violations of international law are not facilitated through the application of the agreement.

Bearing all of the above in mind, I would be grateful if you could please seek from the Taoiseach and appropriate minister, and provide me with, details of the following:

A. Measures that are being taken to ensure that unlawful discrimination is not being undertaken or facilitated at Irish airports through the application of Trump policy in preclearance areas.
B. Measures that the Irish government is taking to ensure that international refugee law is not subverted through the application of Trump policy in preclearance areas.
C. Mechanisms in place to ensure Ireland’s obligations under the TFEU, the ECHR and other applicable international law are fully complied with in preclearance areas.
D. Procedures for withdrawal from the preclearance agreement and bases upon which withdrawal would be contemplated by the Irish government

All over the United States this weekend lawyers and others have protested against this unlawful, cruel, Islamophobic and xenophobic attempt to undermine the rule of law. I ask the Oireachtas and the Irish government, in my name, to stand with them. I also ask you to ensure that Ireland provides protection to people seeking asylum from Syria, in particular, who President Trump seeks to preclude from receiving refugee status in the United States.

Given the evident urgency of the matter, I look forward to your swift response.

Yours sincerely,

US Preclearance and the ‘Muslim ban’: Write to your TD