Responding to the Refugee Crisis: Examining the Broader Systemic Context in Ireland

Ireland’s role in responding to the refugee crisis has been the subject of a lot of media attention in recent weeks and months. In particular, the provision of search and rescue assistance by the Irish Navy, and the agreement to receive up to 4,000 asylum seekers as part of the EU resettlement and relocation programme are to be broadly welcomed. In addition, the allocation of funds in Budget 2016 to support relocated asylum seekers has been cautiously welcomed  by the Irish Refugee Council. Leaving aside the sufficiency of the Irish and EU response overall (for example, see commentary on the EU relocation programme by Steve Peers here), important questions remain as to how relocated asylum seekers will be treated on arrival in Ireland.

How will the State avoid repeating the mistakes of direct provision (on which, you can access posts by Liam Thornton and others here)? Moreover, how is it proposed to deal with asylum seekers already in the system, or those who arrive in Ireland spontaneously? Will the recommendations of the Working Group on Improvements to the Protection Process (critiqued by Liam here) in relation to reception of asylum seekers be fully implemented for new arrivals as well as those already seeking asylum in the State? What will happen to relocated asylum seekers who are refused refugee status?

All of these questions form part of the bigger picture of the State’s approach to asylum and immigration matters. In this context, a number of cases which seem to highlight a lack of compassion and humanity in the administration of immigration and naturalisation law come to mind.

Appeals to Minister for Justice’s humanity in PO

In PO v Minister for Justice and Equality [2015] IESC 64, the Supreme Court refused to restrain the deportation to Nigeria of a woman and her nine-year old son, who was born, raised and educated in the State (although was not an Irish citizen). In the context of a prolonged period of unlawful residence in the State (the applicants had had no right to be in the State since 2010), the Supreme Court found that they had no entitlement to remain in Ireland on the basis of Article 8 of European Convention on Human Rights, which protects private and family life.  Given its decision that “no legal rights” were involved, the Supreme Court could not disturb the Minister for Justice’s decision to deport the applicants.

However, a notable feature of the case was the Supreme Court’s appeal to the Minister to exercise her discretion in a humane way, given that “real issues of ministerial discretion may arise in this case, which involve an 8 year old child, and his mother, both of whom have now resided in this State for well nigh on 9 years.”  Laffoy J agreed with these observations of MacMenamin J.  Charleton J also commented: “As a matter of humanity, but not as a matter of law, it is for the respondent Minister to ask herself how she feels it appropriate to consider this matter in the exercise of her discretion.” These comments effectively raise questions as to the ethics of the State’s approach to deportation proceedings.

Impatience in the Supreme Court in Sulaimon

The Supreme Court’s impatience with administrative procedures and decision-making had been clearly expressed in Sulaimon v Minister for Justice, Equality and Law Reform  [2012] IESC 63, in which the Court severely criticised the “contrived” nature of ministerial and departmental attempts to deny a young boy birthright citizenship, on the basis of their calculation of the residence of his father.

Here, a father sought to claim birthright citizenship for his son on the basis that he (the father) had satisfied the three year lawful residence period in the State at the date of the son’s birth. His application was refused on the basis that he was three days short of the required time period. The case turned on a technical point of immigration law concerning the date on which the father’s legal permission to remain had been granted, with the Supreme Court finding in favour of the child that a letter received by the father constituted the permission to remain, rather than the date on which the relevant stamp was placed in the father’s passport.

The severity of the criticism which was levelled at the Department and the Minister by the Court in Sulaimon, in terms of both the handling of the application and the subsequent litigation, was striking. Hardiman J was particularly vocal, stating (at para. 24):

I simply do not understand why so great an effort has been made over so long a period to deprive a small boy of citizenship in the country where he has been permitted to reside all his life, a citizenship enjoyed by his father and his sister. If there is a point to the pain and anxiety caused to the child’s family, the expense to which they have been put and the taxpayers’ money which has been spent, it entirely eludes me.

The correspondence received by the father was described by O’Donnell J as “confused and confusing”, and the conduct of the litigation, during which “highly contrived and artificial arguments” were advanced on behalf of the Minister, was seen as unacceptable.

Formalism, legalism and rigidity: the basis for a generous response to refugees?

PO and Sulaimon seem to highlight a legalism, formalism and rigidity in the administrative approach to leave to remain and naturalisation processes. These features are also in evidence in the “discretionary” areas of the more tightly-regulated field of asylum, as shown in a series of judicial reviews in which ministerial decisions on family reunification for refugees have been overturned. Among these was AMS v Minister for Justice and Equality [2014] IESC 65, in which the Supreme Court found that the approach taken by the Minister in refusing family reunification to the mother and minor sister of the applicant (on the basis of the potential financial burden which they would be on the State) was disproportionate. This was the second time that a decision of the Minister in respect of the same case was found to be disproportionate by the courts, the High Court having quashed the first refusal.

It is difficult to see how those due to arrive in Ireland (let alone individuals currently seeking protection or leave to remain, or those who arrive spontaneously at our borders) can be dealt with in a caring, rights-centred manner in the context of a system which demonstrates these features. However, perhaps the outpouring of public sympathy for the plight of those fleeing violence and persecution will provide the impetus for a shift in culture in this regard. Fundamental reform (preferably abolition) of the direct provision system (the weekly allowance of 19.10 per adult and 9.60 per child remains untouched after Budget 2016); the publication of the International Protection Bill (which would start a process of debate and critique of the Bill); and clarification on the procedures which are to be applied to relocated asylum seekers would seem to be a good start.

Responding to the Refugee Crisis: Examining the Broader Systemic Context in Ireland

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