Refugee Non-Refoulement in Customary International Law: An Asian Perspective

Human Rights in Ireland welcomes guest contributor, Sonya Donnelly. Sonya is currently working as a Staff Attorney with the Hong Kong Refugee Advice Centre Limited (HKRAC.) HKRAC is the only NGO that provides pro-bono legal aid for asylum seekers undergoing the UNHCR refugee status determination process in Hong Kong. Sonya has written extensively on human rights issues and co-wrote a legal text for first year barristers, The Devil’s Handbook.

The week sees an important case on international refugee law argued before the Hong Kong Court of Final Appeal. Central to the case is whether non-refoulement of refugees has attained the status of jus cogens. C, KMF and BF v Director of Immigration and Secretary for Security (FACV Nos. 18/19/20 2011) (the C case) opened in the Court of Final Appeal on Tuesday and is due to run until today with the UNHCR acting as an intervener in the case.

Article 33(1) of the Refugee Convention contains a prohibition against refoulement, which is a prohibition against returning a refugee to the frontiers of territories where his life or freedom would be threatened. The article states that:

No contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

The four main issues before the court in the Court of Final Appeal are:

Is there a norm of customary international law (CIL) requiring non-refoulement of refugees?
If this is so, is it a part of the domestic law of Hong Kong?
If it is not part of the domestic law of Hong Kong, has the Director of Immigration (the Director) as a matter of practice exercised his discretion such that it has de facto recognised that concept?
If it is part of the law of Hong Kong, is the Director obliged to determine the claims for refugee status, or are they delegable to the UNHCR?

As a brief background note, Hong Kong is a Special Administrative Region of China (HKSAR). China resumed sovereignty over Hong Kong in Continue reading “Refugee Non-Refoulement in Customary International Law: An Asian Perspective” →

The State We Are Currently In: Institutionalisation of Asylum Seekers in the Direct Provision System

February 6, 2013 Liam ThorntonAlan Shatter, Asylum in the European Union, Department of Social Protection, direct provision, European Committee for the Prevention of Torture, Gavin Titley, Reception and Integration Agency, Right of asylum, Sean Aylward, Social Welfare Law and Asylum Seekers in Ireland: An Anatomy of Exclusion, UN Committee Against Torture, €19.10Leave a comment

There has been much focus and comment, but no full State apology, for the role that institutions of the State and the Irish people as a whole played in permitting the operation of Magdalene Laundries for over eight decades. The mantra of “never again” rings hollow in light of Ireland’s current practices in containment and control of asylum seekers within the Direct Provision System (see Gavin Titley’s article on this for the Guardian in October 2012). Unable to work, provided with meals, shared accommodation with strangers and a meagre allowance of €19.10 per week: the system of direct provision in all its Dickensian glory. In Ireland, there was no parliamentary debate on the foundation of the Reception and Integration Agency (RIA). Ministerial circulars on the foundation of the system of direct provision were not (and are not) readily available to the public or to asylum seekers themselves. When I initially applied under the Freedom of Information Acts in 2007 for documentation held by the Department of Justice on the legal basis for direct provision, I was told there was no such documentation. I eventually gained access to much of the documentation through the Department of Social Protection,

It is important to note that there are very significant differences between the horrors of Magdalene Laundries and the system of direct provision: direct provision hostels are not workhouses, there is no evidence of systematic abuse and asylum seekers do have the ability to leave (although this is fairly illusory given that asylum seekers are barred from receiving any other form of welfare or State support). Rather than religious congregations in charge, private enterprises generally operate this system on behalf of the Reception and Integration Agency (RIA).

However, there are some striking parallels in terms of numbers in the direct provision system, length of stay and the dehumanising and institutionalising effect of the direct provision system on asylum seekers. Continue reading “The State We Are Currently In: Institutionalisation of Asylum Seekers in the Direct Provision System” →

Experiences of Supporting Separated Children in the United Kingdom and Ireland

December 12, 2012 GuestPostChildren’s Legal Centre, Children’s Society, Immigration to the United Kingdom, Independent Advocacy Pilot, International Law, National Asylum Support Service, Office of the Refugee Applications, Right of asylum, UK Border Agency, United Kingdom, United Kingdom Border Agency, Yarl’s Wood Immigration Removal CentreLeave a comment

Tom Adams, Advocate with the Independent Advocacy Pilot

Before moving to Ireland in 2011 I worked as a keyworker for an organisation that provides semi-independent accommodation and support to separated children (or unaccompanied asylum seeking children, as they are deemed in the UK) in London. I will give a brief overview of how the asylum process for unaccompanied asylum seeking children in the United Kingdom (UK) contrasts to Ireland.

Age Assessment & the Provision of Care

When a person arrives in the UK seeking asylum they generally come to the attention of the United Kingdom Border Agency (UKBA), the equivalent of the Office of the Refugee Applications Commissioner in Ireland. As in Ireland, the provision available to minors is very different to that of adults so UKBA make an initial decision as to whether a person’s ‘physical appearance and/or demeanour very strongly indicates that they are significantly over 18′. If deemed to be adults they could potentially be selected for the morally reprehensible ‘Detained Fast Track’ procedure, which requires them to be detained while waiting for their decision. A recent Children’s Legal Centre report indicated that as a result of this procedure children, erroneously classified as adults by UKBA, are being held in detention. The detention of children was a previous policy of the UK government, with children of failed asylum seekers detained in the Family Unit of the notorious Yarl’s Wood Immigration Removal Centre between 2001 and 2010, before public outcry led to its closure. In its prohibition of detaining children for immigration purposes Ireland has been less regressive than the UK.

If those seeking asylum in the UK are deemed to be minors (or not significantly over 18) they fall under the care of a Local Authority (LA). This differs from Ireland, which places separated children under the care of the HSE. The types of care utilised is Continue reading “Experiences of Supporting Separated Children in the United Kingdom and Ireland” →

The removal of support for integration in the Netherlands: the case of the refugee

April 19, 2012 Anne NeylonForced migration, integration, Nationality, nationality law, Naturalization, refugee, refugees, Right of asylum, The NetherlandsLeave a comment

The Dutch government announced last week that from 2013, it will no longer finance integration and language classes for newly arrived immigrants in the state. Despite an amendment proposed by opposition parties, it appears that there will be no exception for refugees in the Netherlands. The new measure is introduced as part of bill amending the Integration Act, which is currently being debated in parliament. Though under the proposed amendment, training will no longer be freely available to refugees, their ability to access a long term residence permit or citizenship status will still be dependent on whether they pass the state integration and language tests. This announcement signifies yet another obstacle for those attempting to gain long term residence and ultimately citizenship status in the state. However, it also reveals the ambivalent attitude that the Dutch Government has towards refugees living in the state. Continue reading “The removal of support for integration in the Netherlands: the case of the refugee” →

UNHCR #do1thing: The Rights of Refugees in Ireland

October 24, 2011 Liam Thornton#do1thing, Right of asylum, Rights of Refugees Ireland, United Nations High Commission for RefugeesLeave a comment

Today, is the final day of the United Nations High Commission for Refugees, Do 1 Thing campaign. UNHCR Ireland’s campaign site can be viewed here. In previous posts I have :

Needless to say, there are many other issues in relation to asylum seekers and refugees in Ireland, such as the direct provision system and issues surrounding deportation of unsuccessful asylum seekers. However, for my final contribution to UNHCR’s #do1thing campaign, I will outline the rights of those recognised as refugees in Ireland. (It should be noted however, that Ireland has the lowest refugee recognition rate in the whole of the European Union at first instance). Section 3 of the Refugee Act 1996 provides refugees with rights to Continue reading “UNHCR #do1thing: The Rights of Refugees in Ireland” →

UNHCR #do1thing: Subsidiary Protection

October 17, 2011 Liam ThorntonEquality and Law Reform, European Union, Forced migration, hogan j, Ireland Subsidiary Protection Regulations, M.M. v Minister for Justice, Republic of Ireland, Right of asylum, subsidiary protectionLeave a comment

In an earlier post, I outlined the core meaning of the terms refugee and asylum seeker. In addition to refugee protection in Ireland, an asylum seeker who fails to fall within the terms of this definition may be entitled to subsidiary protection. Subsidiary protection came about as a result of European Union law. Where an asylum seeker can show that she will face a real risk of serious harm in her home country, she will be entitled to subsidiary protection. Serious harm is defined as the:

death penalty or execution;
torture or inhuman or degrading treatment or punishment; and/or
a serious and individual risk to a civilian’s life or person by reason of indiscriminate violence Continue reading “UNHCR #do1thing: Subsidiary Protection” →

UNHCR #do1thing: Refugees and Asylum Seekers

October 10, 2011 Liam Thornton#do1thing, 1967 Protocol, direct provision, Legal Aid Board, Office of the Refugee Applications, Refugee Appeals Tribunal, Right of asylum, unhcrLeave a comment

Who is a refugee?

A refugee is somebody who is outside her country citizenship, or the country where she formerly lived, and is unable or unwilling to return to this country as she fears persecution on the basis of her race, nationality, religion, membership or a particular social group or political opinion. This is the definition set down in the 1951 Refugee Convention and 1967 Protocol on the Status of Refugees. In Ireland, this definition is set down in Section 2 of the Refugee Act 1996. If an asylum seeker is recognised by Ireland as a refugee, she has a right to reside in Ireland, the right to work, the right to claim social assistance, the right to enter further education and the right to bring certain family members to Ireland.

Who is an asylum seeker?

“Let us remember that a bogus asylum-seeker is not equivalent to a criminal; and that an unsuccessful asylum application is not equivalent to a bogus one.”- Kofi Annan

An asylum seeker is a person who claims to be in need of refugee protection but whose claim for refugee status has yet to be determined. In Ireland, an asylum seeker’s claim for refugee status is determined by the Office of the Refugee Applications Commissioner (ORAC). If ORAC does not recognise a person as a refugee, she can then appeal to the Refugee Appeals Tribunal (RAT). Legal advice and legal representation is provided to asylum seekers by the Refugee Legal Service, which is a specialised office in the Legal Aid Board.

While awaiting her claim to be processed and decided, an asylum seeker is prohibited from working. She is accommodated in the direct provision system, where she receives bed and board, along with a payment of €19.60 per week (and €9.60 per week per child). An asylum seeker is not entitled to any other form of social assistance payment while in Ireland. Asylum seekers are entitled to free health care, and child asylum seekers or child dependents of asylum seekers are entitled to the same right to education as Irish children. Asylum seekers are not illegal immigrants and are entitled to remain in the state until such time as their refugee claim has been granted or rejected. The recognition rate of asylum seekers as refugees in Ireland is just under 2%, the lowest recognition rate in the European Union.

Asylum Transfers from Ireland to Greece

September 27, 2011 Liam ThorntonAdvocate General, Court of Justice of the European Union, direct provision, EUCFR, European Charter of Fundamental Rights, European Court of Human Rights, M.E. v Refugee Applications Commissioner, Mirza v Refugee Applications Commissioner, N.S. v Secretary of State for the Home Department, procedures directive, reception conditions directive, Refugee Applications Commissioner, Right of asylumLeave a comment

As I noted last week, an opinion by Advocate General Trstenjak on the rights of asylum seekers under the EU Charter of Fundamental Rights (EUCFR) and EU asylum directives, held that asylum seekers should not be returned from other EU member states to Greece if the fundamental rights of asylum seekers are not upheld. In Ireland, all transfers of asylum seekers to Greece have been suspended since Clarke J. granted leave to appeal her decision in Mirza v Refugee Applications Commissioner to the Supreme Court in 2010. When Clarke J. referred questions in the case of M.E. and others v Refugee Applications Commissioner to the Court of Justice of the European Union (CJEU), there were 32 similar applications yet to come before the High Court in October 2010.

In M.E. and others v Refugee Applications Commissioner, the five applicants had entered Greece, were requested to leave the country due to illegal entry and made their way to Ireland to claim asylum. The Refugee Applications Commissioner, exercising his powers under the Dublin II Regulation, wanted to return the applicants to Greece so that their asylum claim could be determined there. M.E and the others argued that the procedures for determining asylum claims and reception conditions in Greece were so inadequate that Ireland was obliged to exercise its discretion under Article 3 (2) of the Dublin II Regulation to accept responsibility for examining these asylum claims. Clarke J. in the High Court made a preliminary reference Continue reading “Asylum Transfers from Ireland to Greece” →

The European Union Charter of Fundamental Rights and Asylum Seekers

September 23, 2011 Liam ThorntonAdvocate General, asylum law, Court of Justice, Equality and Law Reform, M.E. v Refugee Applications Commissioner and the Minister for Justice, M.S.S v Belgium and Greece, N.S. v Secretary of State for the Home Department, procedures directive, qualification directive, reception conditions directive, Refugee law, Right of asylumLeave a comment

With the recent arrival in Europe of persons from various North Africa countries due to the uprisings, there has been increased focus on the issue of asylum and refuge in Europe. This did lead to some tension between France and Italy, and broader questions on free movement rights and borders in the European Union (EU) as a whole. See Cian’s previous post on this issue here. Yesterday’s opinion by Advocate General Trstenjak re-emphasised that the right to seek asylum is a fundamental right, not only under international law, but also under EU law.

When an individual enters the EU for the purpose of claiming asylum , s/he is required to claim in the first EU country that s/he seeks enters. Under the Dublin II Regulation, if s/he subsequently travels onwards to another EU country, s/he can be returned to the first country of entry, unless the subsequent country agrees to examine the protection claim. However, without any burden sharing mechanism, this places great pressure on countries like Greece who are expected to determine individual asylum and protection claims in line with EU minimum legal standards. The question that arises, and was considered in the opinion of AG Trstenjak in N.S , does a second member state have an obligation to refuse return to the first country of entry, an asylum seeker who could suffer violations of the EU Charter of Fundamental Rights (EUCFR) and other international treaties (in particular the ECHR and Refugee Convention). In answering this Continue reading “The European Union Charter of Fundamental Rights and Asylum Seekers” →

Deprivation of Permission to Work: Asylum Seekers and Article 8 ECHR

March 24, 2011 GuestPostHigh Court in London, Immigration, Irish Government, London School of Economics, refugee, Republic of Ireland, Right of asylum, Right to Work for Asylum SeekersLeave a comment

Human Rights in Ireland is delighted to welcome this guest post from Gráinne Mellon. Gráinne is a pupil barrister at 36 Bedford Row Chambers in London. She is a graduate of Trinity College Dublin and the London School of Economics where she specialised in immigration and human rights law.

Ireland is only one of two member states of the European Union (the other being Denmark) that has failed to ratify the 2003 EU Directive on the Minimum Standards for the Reception of Asylum Seekers. The Reception Directive, as it is known, lays down the minimum conditions for asylum seekers and provides that they must be allowed to work after a year of waiting for a decision, or before. Asylum seekers in Ireland therefore are not permitted to work in any capacity pending the resolution of their claim; regardless of how long this takes. The UK, on the other-hand, ratified the Directive but excluded subsequent asylum seekers from accruing any right to work in doing so. In a landmark case last year of ZO (Somalia) v. Secretary of State for the Home Department [2010] 1 WLR 1948 the UK Supreme Court ruled this exclusion was unlawful. Although the ruling was based solely on the Reception Directive, litigation for damages both for State Liability under EU law and breach of Article 8 is ongoing.

It is clear therefore that despite not being subject to the requirements of the Directive, the Irish government remains bound by Article 8 of the ECHR in respect of immigration policy. Two recent decisions of the High Court in London have dealt Continue reading “Deprivation of Permission to Work: Asylum Seekers and Article 8 ECHR” →

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