Ireland's Asylum & Direct Provision System under the Spotlight in Northern Ireland High Court

NI High CourtToday, the High Court of Northern Ireland in Belfast issued a decision that could have  a knock on impact on the Republic of Ireland’s asylum system. The judgement, In the Matter of an Application for Judicial Review by ALJ and A, B and C [2013] NIQB 88 (14 August 2013), is substantial. The core focus in this post are comments made by the judge in the case, Mr Justice Stephens, on the Irish asylum and direct provision systems. The full facts of the case can be found from paragraphs [1] to [30] of the judgment. Throughout the judgement, Mr Justice Stephens outlines in detail his significant discomfort with the asylum status determination system and the system of direct provision in the Republic of Ireland.

Factual Context

The applicants had made a claim for refugee status in the Republic of Ireland in 2010 on the basis that the applicants would face persecution as non-Sudanese Darfuris. This application was rejected by ROI in 2011. The applicants subsequently made an application for subsidiary protection in April 2011. However, in July 2011, the applicants entered Northern Ireland and applied for asylum. Under EU Law,  the Dublin II Regulation, the UK authorities sought to return the applicants to the Republic of Ireland. The applicants challenged the decision of the UK Border Agency to return them to Ireland and argued that discretion should be exercised not to return them to the Republic of Ireland, under Article 3(2) of the Dublin II Regulation. The applicants contended that return to the Republic of Ireland’s refugee and protection status determination system, with its minuscule recognition rates and the system of direct provision, would violate their rights under Article 4 & Article 7 of the European Charter of Fundamental Rights (EUCFR). Article 4 EUCFR protects against torture, inhuman and degrading treatment. Article 7 EUCFR protects the right to private and family life.

Refugee & Protection status determination process

Although not “systematically deficient”, Stephens J. stated Continue reading “Ireland's Asylum & Direct Provision System under the Spotlight in Northern Ireland High Court”

Ireland's Asylum & Direct Provision System under the Spotlight in Northern Ireland High Court

Amnesty International's Annual Report for Northern Ireland and Ireland

amnestyintl.logo_.2Amnesty International’s Annual Report on Northern Ireland and Ireland was published last week  as part of its annual series of country reports. Globally, the report considered the world to be a more dangerous place for refugees and migrants and stated that countries were increasingly using the cover of ‘internal affairs’ to block full consideration of their human rights standards. These reports are part of a broader reporting process by governmental and non-governmental together with  global and regional bodies including state-led reports on individual countries’ commitments and abuses of human rights standards. Indeed, previously we have highlighted the US State Department’s Human Rights Reports, the Universal Periodic Review by the UN Human Rights Council and the UK’s FCO Human Rights’ Report, amongst others. Often, these reports are conscious political campaigns, such as the Regan administration’s initiation of State Department country reports during the Cold War or the Universal Periodic Review as a method of moving beyond past failures in the UN’s human rights’ accountability mechanisms.  Amnesty International, as a NGO, perhaps brings a more ‘independent’ overview of state activity, but even here, a country’s co-operation, or otherwise, may be critical in gaining access in order to compile the report. The priorities of a particular NGO may also alter the focus of such reports. Further, the ultimate utility of these kinds of general reports without any form of enforcement mechanism should be questioned, particularly when considerable resources are sunk into their compilation. At the very least, these reports offer an opportunity for countries to assess their human rights standards and in the case of critical reports, attempt, if possible, to save face or explain their poor standards of observation. Amnesty International historical record of accurate and influential reports makes their contribution particularly important.

The Report on Ireland focuses on prison conditions, the right to health, violence against women and girls, police and security forces, and constitutional and legal changes. In particular, the report criticised conditions in young offender institutions, though it did welcome the Government’s plan to end placement in St. Patrick’s for 16 year olds, the fact that 17 year olds would still be held there coupled with inadequate health and education facilities for young offenders, remained extremely problematic. The Report also stated that while the instigation of a process of investigation of serious complaints by prisoners was a step forward, this remained well short of what is required under the UN Torture Convention and mandated by the Torture Committee’s Report on Ireland in 2011. The 2011 Report had also highlighted the need for full investigations into the Magdalene Laundries and Amnesty also questions whether the Government has fully complied with its requirements on this matter. The Report mentions the Right to Health and particularly the death of Savita Halappanavar focusing on the lack of clarity in law on access to abortion, a point that the Oireachtas Committee would be well cautioned to consider. Amnesty also mentioned the Smithwick Tribunal on collusion with the IRA. The Report welcomed Ireland’s signing of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Constitutional Convention and the passage of the Constitutional amendment on Children’s Rights.

The Report on Northern Ireland forms part of the broader report on the UK. Here, Amnesty focused on the continuing activity of paramilitary forces, in particular the shooting dead of prison officer David Black and the intimidation of elected officials and journalists by these groups. The Report also looked at the Inspectorate of Constabulary’s review of the Historical Enquiries Team which re-examines all deaths related to the conflict in Northern Ireland and examines whether those cases involving the army are human rights compliant. The Report also highlighted the ongoing investigations into the death of Pat Finucane and Blood Sunday. In similar terrain to previous reports on Ireland, the Report also looked at the instigation of the inquiry into institutional child abuse in Northern Ireland from 1922-1995. More generally, Amnesty highlighted questions relating to torture and ill-treatment by UK forces with regard to terror suspects, the impact of counter-terrorism measures, gender based violence and the UK’s lead of a new initiative regarding violence against women and girls in conflict and post-conflict scenarios as well as the UK’s treatment of refugees and asylum seekers.

The issues raised are familiar to anyone interested in human rights standards across Ireland and the UK. Yet, importantly, the report highlights the on-going issues, which have also been the focus of many previous Amnesty Reports and questions the good faith of both the Dublin and London Government as well as the devolved Government in Stormont to actually deal with rights questions, such as those relating to youth offending or women’s rights, that are often sidelined in favour of more publically acceptable human rights issues that are less electorally difficult. Repeated highlighting of these more difficult issues is perhaps the most important contribution that these forms of Reports can make, even if broader questions regarding their multitude and impact can be raised.

Amnesty International's Annual Report for Northern Ireland and Ireland

All Liars: Thatcher and the Troubles

 

 

‘I’ve got one thing to say to you, my boy … you can’t trust the Irish, they are all liars … and that’s what you have to remember, so just don’t forget it’. Death cannot constrain the effervescent charm of Margaret Thatcher. Or maybe Peter Mandelson, who revealed this gobbet of bile to the world in the aftermath of her death, still knows how to skewer his political opponent with an anecdote to which she can’t very well respond. Continue reading “All Liars: Thatcher and the Troubles”

All Liars: Thatcher and the Troubles

The PSNI and the Loyalist Flag Protests

The auguries for “Marching Season” in Northern Ireland look bleak. Months of loyalist protests against Belfast City Council’s decision to restrict the flying of the Union Flag are fuelling tensions. Naomi Long, the Alliance MP for East Belfast (who has been at the centre of the storm since her Party backed the current arrangements regarding the flag), issued the dire warning that the spectacle of groups which consider themselves under threat turning to paramilitaries carried with it “reflections of 1969 and 1970”. All the while, the performance of the Police Service of Northern Ireland in response to the flag protests  (pictured left) has drawn criticism from across the political spectrum. Continue reading “The PSNI and the Loyalist Flag Protests”

The PSNI and the Loyalist Flag Protests

Turner on The “Right” to Protest on Northern Ireland’s Streets

We are delighted to welcome this guest post from Catherine Turner in response to Darren McStravick’s previous post, available here. Catherine is a lecturer at Durham Law School where she is a member of Law and Conflict at Durham, Durham Global Security Institute, and the Durham Human Rights Centre.

It is customary in the face of highly public protest (be it student protests against fees, anti-capitalist protests at the G8, or mass protest at austerity measures), for articles to appear in defence of the vital role played by public protest in putting pressure on governments in respect of unpopular policies or decisions. Despite the absence of an expressly granted “right to peaceful protest” in the Human Rights Act 1998, in the United Kingdom the freedom to protest has long been regarded as a civil liberty within the democratic state. This, of course, does not extend to the use of violence, which has become an increasing feature of the “flag” protests. Nevertheless, the use of violence by some should not be allowed to overshadow the broader issues raised by the current wave of protests. The silence since the recent wave of protests has, however been deafening. With one exception (Henry McDonald, ‘It’s Not Just the Flag, They want to take everything British Away’ The Guardian, Saturday 12th January 2012), commentary has emphasized that the protesters are a small minority, that they have no valid concerns, and that they must not be tolerated. The overwhelming approach of commentary has to been to condemn them and to demonstrate that they are not representative of Northern Ireland as a whole. Continue reading “Turner on The “Right” to Protest on Northern Ireland’s Streets”

Turner on The “Right” to Protest on Northern Ireland’s Streets

The ‘Right to Protest’ on Northern Ireland’s Streets

We are delighted to welcome this guest post from Darren McStravick, a PhD student at School of Law and Government, Dublin City University. Darren holds a law degree and a masters in human rights law from Queens University Belfast. He has previously worked as a legal researcher with the Northern Ireland Law Commission. His PhD research, for which he holds an O’Hare Scholarship at DCU, seeks to evaluate restorative justice models, specifically Irish adult reparation panels. Darren is particularly interested in the issue of community ownership and the restorative practice within these panels.

The ‘Right to Protest’ on Northern Ireland’s Streets:  Disregarded Limitations and the Need for Clarity

Throughout the previous eight weeks Northern Ireland has been gripped by protests and riots relating to a decision by Belfast City Council to fly the Union Jack on designated days over the grounds of Belfast City Hall. This decision substituted the previous practice of flying the flag on every day of the year. Whatever the views on that democratic decision, concern should be raised over the growing number of statements and opinions debating the importance of human rights law within this jurisdiction. Human rights are, undoubtedly, a vital component of a democratic society. Indeed, there has been a steady stream of support for the protection of these rights from a number of stakeholders, including politicians, protesters and police officers, within the Police Force of Northern Ireland (PSNI). One right in particular has been highlighted; the ‘right to legitimate peaceful protest’. Over this troubling period we have been continually informed that the freedom to protest should be protected. The First Minister himself has voiced his support,  as has the Chief Constable of the PSNI who also notes that ‘[we must] make sure that people’s rights to peaceful protest are upheld’. This ‘right’ is not expressly stated within the content of the European Convention on Human Rights (ECHR – incorporated into UK law via the Human Rights Act 1998). It can, however, be implied to exist within the realm of other Convention Articles. Continue reading “The ‘Right to Protest’ on Northern Ireland’s Streets”

The ‘Right to Protest’ on Northern Ireland’s Streets

Public Nuisance v Freedom of Speech: Flags and Protests in Northern Ireland

We are delighted to welcome this post from Dr Ciara Hackett. Ciara joined the School of Law at Queens University Belfast in August 2012, prior to that she held a teaching and research fellowship at the School of Law, National University of Ireland Galway.  Her research explores a diverse range of issues in the areas of regulation, corporate governance and corporate social responsibility as well as legal theories of development.  She is currently engaged in a number of projects in the areas of Corporate Social Responsibility, Tort Law and Corporate Governance.

Queues, carols, mince pies, mulled wine and….protests? Belfast (and indeed large portions of Northern Ireland) has come to a standstill in the weeks and days leading up to Christmas, not due to crowds of festive shoppers but rather for daily protests over the decision, earlier this month, to remove the Union flag from its daily perch over City Hall, instead, limiting its flying to designated days in keeping with the rest of the UK.

The wrath of daily commuters (on both sides of the religious divide) surrounds the fact that these protests are blocking their route home. The challenge to the law therefore, is in balancing the protestors right to protest (as protected by Article 10 of the European Convention on Human Rights and Articles 10 and 11 of the Human Rights Act 1998) with causing an obstruction amounting to a Public Nuisance.   The tort of nuisance broadly conceived is described as the interference with another’s rights.  Concerned not with the prohibition of a certain act, the tort instead protects the claimant from an unreasonable interference with rights.  The idea of Public Nuisance is more recent manifestation concerning itself with the protection from unreasonable interference with rights which are common to all.  Described first in the UK in the judgment of AG v PYA Quarries [1957] 2 QB 169, the judgments of Lord Romer and Lord Denning are most relevant.  Romer defined public nuisance as that which affects materially the reasonable comfort and convenience of a class of her majesty’s subjects.  Endorsing Lord Justice Romer, Lord Denning goes further, stating that it is the “responsibility of the community at large to put a stop to unreasonable activity”.

As a public tort, the AG litigates on behalf of the community at large, unless it can be proven that the plaintiff/claimant has suffered “special damage”.  Defined within the UK and Ireland as damage which is appreciably more serious than that suffered by the general public, Smith v Wilson [1903] 2 IR 45 illustrates its application in Northern Ireland.  Developments in the UK have suggested that personal injury also comes within the confines of Public Nuisance, therefore distinguishing it quite significantly from the tort of Nuisance as more broadly understood (See Corby Group Litigation v Corby Borough Council [2009] EWHC 1944).  Public Nuisance covers obstructions to the highway via marches and pickets.  In short, the protests do amount to a Public Nuisance.  However, as to whether or not it is actionable will depend on the interpretation of the courts on the relationship between Public Nuisance and Freedom of Expression Rights and the associated right to Continue reading “Public Nuisance v Freedom of Speech: Flags and Protests in Northern Ireland”

Public Nuisance v Freedom of Speech: Flags and Protests in Northern Ireland

A Dark and Violent Time: The Report of the Pat Finucane Review

David Cameron is shocked. Ed Miliband is shocked. But no one is really shocked. Patrick Finucane (pictured left) has been dead for nearly 24 years and the world moves on cruelly fast. Labour’s demand for a full public inquiry into his killing smacks of making political capital out of a family denied answers (let alone justice) for too long, and which is now skeptical of any answers it does receive. Even Gerry Adams’ statement in support of this cause is terse, running to little over 100 words. The de Silva Report has, a day after its publication, already slipped from the home pages of the websites of national newspapers in the UK and Ireland. Continue reading “A Dark and Violent Time: The Report of the Pat Finucane Review”

A Dark and Violent Time: The Report of the Pat Finucane Review

Domestic Violence and the limits of (media interest in) Human Rights

Human rights cases rarely seem to generate media interest unless some populist bogeyman, like Abu Qatada, has successfully scuppered a government policy by running to the European Court of Human Rights in Strasbourg. In the UK in particular, the confluence of human rights claims by figures such as Qatada, and the distrust of European institutions (irrespective of whether those institutions form part of the Council of Europe structures or belong to the European Union) amongst sections of the press, combine to make certain cases “newsworthy”. Other decisions, such as the European Court’s rejection of Irene Wilson’s petition earlier this month, have gone largely unreported (with the exception of human-rights interest blogs, such as the UK Human Rights Blog). Continue reading “Domestic Violence and the limits of (media interest in) Human Rights”

Domestic Violence and the limits of (media interest in) Human Rights

Why they killed David Black

At 07.30 this morning, David Black, a Northern Ireland Prison Service officer was ambushed and shot dead on his way to work by Republicans opposed to the Good Friday Agreement. Though the actions of violent Republicans are often portrayed as emanating from a sense of blood lust or barbarism, I have previously argued that this is not the case and this morning’s killing is no exception.  Black’s death was intended demonstrate capability, improve the moral of violent Republicans and escalate the on-going prison dispute. Unfortunately, it may succeed in doing just that.

Despite the formation of a so called “new IRA”; the past few months have not been good ones for violent Republicans, with attacks down by 20% on last year. The recent  downgrade of the threat posed to Great Britain by Republicans, from “substantial” to “moderate”, built upon a terrible month for violent Republicans who suffered a spate of arrests in October with over a dozen members held in Limerick, Belfast and Dublin. This has included high value members such as bomb makers and intelligence officers. Even the manner in which the formation of the “new IRA” (a merger of RAAD and the Real IRA) was announced actually highlighted weakness rather than strength. The announcement came in late July, the week leading up to the Olympics, when even a small device in Great Britain would have brought the attention of the world to the newly formed group. Rather than announcing its existence with an operation, the “new IRA” chose to hand a journalist a press release in a dark country road. Continue reading “Why they killed David Black”

Why they killed David Black