II ASSESSMENT OF COMPLIANCE WITH INTERNATIONAL OBLIGATIONS
A
Compliance with
international obligations at the domestic level
“Everyone has the right to seek and to enjoy in other countries asylum from persecution”.[2]
An asylum-seeker is a person who seeks protection from persecution in another country. Asylum-seekers are distinguished in law and in practice from “economic migrants” who move voluntarily from their home country to seek a better standard of living, and “illegal immigrants” who enter a country without the correct documentation or reside in a country without permission and do not apply for refugee status. Emanating from this distinction, different rules apply in respect of these distinct categories.
A state has the right to control its borders and it may develop and implement immigration laws pertaining to economic migrants and illegal immigrants. In respect of the distinct category of asylum-seekers, international law places an obligation on states to fully consider all applications for asylum and to grant refugee status to those who are fleeing persecution.[3] In short, the State is under an international obligation to facilitate the exercise of the right to seek asylum.
The extent to which current domestic law and practice in Ireland are in compliance with the State’s obligation to guarantee the right to seek asylum is assessed below.
i) Domestic and international law and
standards
The State’s primary obligations in respect of the right to seek asylum are set out in the 1951 Geneva Convention relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol. Ireland has ratified both of these instruments and is legally bound to observe them. With a view to fully incorporating the provisions of both instruments into domestic law, Ireland enacted the Refugee Act which was signed into law in 1996 and implemented in full (as amended) on 20 November 2000. The statutory system, in effect as of 20 November 2000, comprises the Refugee Act, 1996 as amended by the Immigration Act, 1999 and the Illegal Immigrants (Trafficking) Act, 2000 (hereafter the Refugee Act, as amended).
In addition to this statutory system, international human rights law and standards are applicable to the laws and practice relating to asylum procedures in Ireland. These international instruments include: the Refugee Convention, the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and standards elaborated by international bodies such as the United Nations High Commissioner for Refugees and the European Committee for the Prevention of Torture (CPT). Ireland is a party to all of the aforementioned Conventions and is bound to ensure that domestic law and practice comply with their provisions. In this connection, Ireland has yet to ratify the UN Convention against Torture (CAT), but has signed the treaty and is thus under an obligation not to engage in acts inconsistent with the object and purpose of the CAT.
The statutory system which is now in place must operate in compliance with Ireland’s obligations under applicable international human rights instruments, including those listed above. Foremost among these obligations is the fundamental principle of non-refoulement, which prohibits a state from returning an individual to a country where he or she may face serious human rights violations.[4] Amnesty International opposes any breach of this principle. We therefore seek to ensure that states provide individuals with effective and durable protection from being sent against their will to a country where they are at risk, or to any third country where they would not be afforded protection.
In addition to complying with the principle of non-refoulement, the State must observe its obligations under the aquis of international human rights law to which it is a party throughout the asylum determination procedure. Of particular relevance are the ICCPR, ECHR and resolutions elaborated by the United Nations and the Council of Europe.
Amnesty International welcomed the establishment of the asylum determination procedure on a statutory footing under the Refugee Act, as amended. In particular, the organisation welcomed the establishment of the office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. The specific provisions concerning children asylum-seekers and the definition of a refugee contained in the Act were also welcomed.
However, Amnesty International considers that certain aspects of the Refugee Act, as amended, are not in compliance with international human rights law. The organisation voiced its concern regarding the then proposed statutory framework early in 2000 when amendments were introduced to the Refugee Act 1996. At that time, Amnesty International called for “human rights proofing” of proposed elements of legislation in order to ensure that they were in compliance with international standards and recommended that the Government establish a mechanism to examine proposed legislation in the light of the State’s international obligations.[5]
Amnesty International’s principal concerns regarding the present statutory framework are elaborated below.
The purpose of the asylum determination procedure is to establish whether an asylum applicant is in need of formal state protection. The determination procedure now operates on a Statutory basis under the Refugee Act, as amended, and overall responsibility for its operation rests with the Refugee Applications Commissioner. The test of the efficacy of any asylum determination procedure must be its ability to identify all persons in need of protection. The procedure must operate in a fair and rigorous manner and must afford all asylum-seekers the opportunity to fully present their reasons for seeking asylum. The procedure should operate as a safeguard against refoulement and should at all times respect the rights and dignity of asylum-seekers subject to it. Amnesty International wishes to call attention to the following aspects of the asylum determination procedure.
access to
interpretation
The Refugee Act, 1996 as amended, stops short
of providing a full right to an interpreter during an interview under
the asylum determination procedure. The Act conveys a right only
where “necessary and
possible”.[6] The significance of such interviews is
underlined by the fact that an application for asylum can be declared
manifestly unfounded after the first interview in the procedure and
that no oral appeal of such a decision is permitted. The essential
nature of the right of access to an interpreter has been underlined
by the United Nations High Commissioner for Refugees (UNHCR) and the
European Union
(EU).[7] According to the UNHCR “the applicant
should be given the necessary facilities, including the services of a
competent interpreter, for submitting his case to the authorities
concerned”.[8]
Amnesty International regrets that there is no requirement in the Refugee Act, as amended, that those involved in the asylum determination procedure be trained in international refugee and human rights law. Despite the lack of a statutory requirement, some training is given to those involved in the process. However, in order to ensure the effective and competent operation of the asylum determination procedure, comprehensive human rights training should be established as a requirement for all those involved in the procedure. Such a development would be in line with international standards as elaborated by the European Committee for the Prevention of Torture (CPT), which has underlined the need for appropriate training for officials entrusted with handling asylum applications.[9]
Amnesty International believes that officials should be provided with objective and independent information on the human rights situation in other countries. The use of such information is central to the operation of a fair asylum determination process offering applicants a real opportunity to present their case. The organisation welcomed the recent publication of a study by the Irish Refugee Council, concerning the use of country of origin information during the asylum determination procedure, which highlighted the importance of such information.[10]
gender-specific considerations
Amnesty International welcomed the inclusion
of gender as one of the specific grounds of persecution on which to
base a claim for refugee status in the Refugee Act. This legislative
initiative was a very positive development and one which Amnesty
International would like to see carried through and developed within
the asylum determination procedure.
In order to establish a gender-related claim
as provided for in the legislation, an applicant may require access
to female interviewers and
interpreters. Providing such
access is essential to ensuring that the asylum determination
procedure affords all asylum-seekers the opportunity to fully present
their reasons for seeking asylum. In recognition of the specific
circumstances of female asylum-seekers the UNHCR has urged states to
“provide, wherever necessary, skilled female interviewers in
procedures for the determination of refugee
status”.[11]
persecution by non-state actors
Specific safeguards against refoulement are required in respect of claims for refugee
status which are based on the acts of a “non-state actor”
or private individual. According to the European Court of Human
Rights, the responsibility of a state for violations of human rights
perpetrated by private individuals is invoked if the State has failed
take preventive action or to provide sufficient domestic legislation
to prevent such
violations.[12] In this context, the acts of private
individuals can include acts of domestic violence where the state has
failed to take preventive action.
However, some states neither recognise their
responsibility under human rights law for the acts of non-state actors nor take any action to prevent domestic
violence in their jurisdiction.
In respect of Irish law Amnesty International
therefore welcomed the inclusion of a prohibition on the return of an
asylum-seeker to a country where he or she may face serious assault
(including of a sexual nature) in Section 5(1) of the Refugee Act, as
amended.
In order to ensure that Ireland does not
breach the principle of non-refoulement, the State must ensure that no individual is
returned to a state which does not recognise persecution by non-state
actors.[13] The State must therefore strictly apply
Section 5 of the Refugee Act, as amended and ensure that officials
take the risk of persecution by non-state actors fully into account
during the asylum determination
procedure.
ii) Access to the Courts
The Illegal Immigrants (Trafficking) Act 2000
introduced a fourteen day limit within which asylum-seekers must
apply for judicial review of certain decisions concerning them. These
decisions can include refusal of an application for refugee status
and the issuing of an exclusion order. The Act makes provision for
the extension of the fourteen day time limit by the Court should the
Court consider there is “good and sufficient reason” for
doing
so.[14]
Amnesty International has criticised this
provision as severely restricting access to fair procedures and
access to the Courts as an asylum-seeker may not have adequate time
to seek legal advice and prepare his or her
case.[15] It regrets, therefore, the ruling of the
Supreme Court, further to a referral by the President of Ireland,
which found the relevant provision to be Constitutional. The
retention of this provision does not sit easily with Government
policy on the matter. Speaking of the rights of access of Irish
citizens to the protection of the Courts, the Minister of State at
the Department of Foreign Affairs, Ms Liz O’Donnell T.D., has
stated that “it is right and fitting that one of the most
marginalized and vulnerable groups under Irish skies, refugees and
asylum seekers, can likewise have their fundamental rights of
equality of treatment and access to the Courts vindicated by the
Constitution”.[16]
iii)
Detention
During the period preceding the operation of
the new statutory framework, which came into effect on 20 November
2000, detention of asylum-seekers in Ireland was rare. However, the
Refugee Act, as amended, clearly provides for the detention of
asylum-seekers, and concerns have been raised regarding both the
content of these provisions and the manner in which they might be
implemented. Amnesty International has criticised certain of the
provisions relating to detention as failing to comply with
international law and standards in this area. The organisation’s
principal concerns are elaborated below.
grounds for detention
Section 9(8) of the Refugee Act, as amended,
sets out the grounds for which an asylum-seeker can be detained. It
provides that:
“Where an immigration officer or a member of
the Garda Síochána, with reasonable cause, suspects
that an applicant:
(a)
poses
a threat to national security or public order in the
State,
(b)
has
committed a serious non-political crime outside the
State,
(c)
has
not made reasonable efforts to establish his or her true identity,
(d)
intends
to avoid removal from the State in the event of his or her
application for asylum being transferred to a convention country
…,
(e)
intends
to leave the State and enter another state without lawful authority,
or
(f)
without
reasonable cause has destroyed his or her identity or travel
documents or is in possession of forged identity documents,
he or she may be detained in a prescribed
place (referred to subsequently in this Act as ‘a place of
detention’).”
Amnesty International considers that several
of the grounds for detention listed above are contrary to the
provisions of the European Convention on Human Rights
(ECHR).[17] The State must adhere to the provisions of
the ECHR and is under an obligation to secure the rights and freedoms
which it sets out to everyone within its jurisdiction, including
asylum-seekers. Article 5 of the ECHR states that everyone has the
right to liberty and security of person and establishes safeguards
against arbitrary detention. It sets out an exhaustive list of six
defined grounds for which a person may be detained in accordance with
a procedure prescribed by
law.[18] Amnesty International considers that Section
9(8)(e) of the Refugee Act, which provides for the detention of an
asylum-seeker pursuant to the suspicion of the authorities of an
intention to leave the State, is not in compliance with the strict
terms of Article 5 ECHR and falls outside the safeguards established
therein.
Amnesty International also considers that the
provision in section 9(8)(f) which provides for the detention of
persons who, without reasonable cause, are in possession of forged
identity documents, does not comply with the criteria set by Article
5 ECHR. In addition, this provision does not comply with the
international obligation imposed on the State by the Refugee
Convention not to impose sanctions on those who arrive in a country
illegally to seek
asylum.[19] International law, as laid down in the
Refugee Convention, recognises that asylum-seekers fleeing
persecution may have no choice but to travel with false or forged
documents. Amnesty International believes that an assumption that the
use of forged documentation was necessary for flight should underlie
all applications of the test of “reasonable cause” by the
authorities.
According to the ECHR, a detained person has
the right to be informed of the reasons for his or her detention in a
language which he or she
understands.[20] The CPT has developed standards to promote
this right and has recommended that detainees be systematically
provided with a document explaining the procedure applicable to them
in a language they
understand.[21] However, the Refugee Act, as amended, only
goes so far as to provide for the provision of information in a
language that the person understands “where possible”.
Amnesty International considers that any failure to inform detainees
of their rights in a language they understand would constitute a
failure to comply with applicable international law and standards in
this area.
place of detention
The Refugee Act, as amended, prescribes the
establishments in which asylum-seekers may be
detained.[22] These establishments include prisons,
juvenile detention institutions, Garda stations and the Central
Mental Hospital Dundrum. There are no purpose-built detention centres
for asylum-seekers in Ireland. Amnesty International believes that
asylum-seekers should not be detained alongside ordinary prisoners
and recommends that the Government follow international standards in
this area. In particular, Amnesty International points to the
standards elaborated by the CPT concerning the detention of foreign
nationals.
The CPT has stated that “A prison is by
definition not a suitable place in which to detain someone who is
neither convicted nor suspected of a criminal
offence”.[23] The CPT considers that detention in ordinary
prisons might be unavoidable where a detainee has a known potential
for violence or where a secure health care facility is required;
however, even in such exceptional cases, the CPT states that such
detainees should be held separately from prisoners, whether on remand
or convicted. The provision in the Refugee Act, as amended, that
“if detained in a prison or other place of detention, the
detainee will be subject to the same conditions as a person awaiting
trial”[24] is clearly not in line with current
international standards. The organisation is additionally concerned
about the lack of safeguards against ill-treatment in Irish prisons,
a matter which has been criticised by an international monitoring
body (see section II A 1
above).
Separately, with regard to detention in police
stations, the CPT has indicated that such establishments will rarely,
if ever, provide appropriate conditions of detention and recalled
that immigration detainees should not be obliged to share cells with
criminal
suspects.[25] Amnesty International is opposed to the
detention of asylum-seekers alongside ordinary prisoners. The
organisation therefore considers that the State should refrain from
detaining asylum-seekers in prisons or police stations in line with
international standards in this area.
iv) Restrictions on
entry into Ireland
Dublin Convention
Under the terms of the Dublin Convention,
asylum-seekers who have arrived in Ireland via another EU country may
be sent back to that country. The Dublin Convention does not provide
that the State must satisfy itself as to the future safety of an
asylum-seeker returned under the Dublin Convention. In other words,
under the Dublin Convention, an asylum-seeker may risk being returned
to an EU state which does not recognise non-state persecution as a
ground for granting refugee status (see gender-specific
considerations above), or subsequent return by the receiving EU state
to the country from which they fled.
The overriding principle governing any return
of asylum-seekers is that of non-refoulement, a norm of customary international law which
is binding on all states. Amnesty International holds that the Dublin
Convention does not release the State from its obligation to comply
with this fundamental principle. Therefore, before any individual is
sent from the State under the Dublin Convention, the State must
investigate thoroughly the circumstances pertaining in the receiving
state.
c)
Recommendations
i) to the Government and
the Refugee Applications Commissioner
asylum determination
procedure
·
Interpretation
facilities should be available throughout all stages of the asylum
determination procedure. Amnesty International recommends that the
Government and the Refugee Applications Commissioner ensure that
access to competent, qualified and impartial interpreters is
guaranteed in line with international
standards.[26]
·
In
the absence of any reference to the provision of gender-specific
interpretation during interviews in the Refugee Act, Amnesty
International recommends that guidelines be elaborated to supplement
the relevant domestic legislation in line with UNHCR
guidelines[27] which call for the provision of access to
female interviewers and
interpreters.[28]
·
The
State should strictly apply Section 5 of the Refugee Act, as amended,
which prohibits the return of an asylum-seeker to a country where he
or she may face serious assault (including of a sexual nature) and
ensure that officials take the risk of persecution by non-state
actors fully into account during the asylum determination procedure.
detention
·
Amnesty
International recommends that the State refrain from detaining
asylum-seekers on grounds which the organisation considers fail to
comply with the ECHR. Any asylum-seekers detained should be informed
of the reasons for detention and of his or her rights in a language
he or she understands. Asylum-seekers should never be detained
alongside ordinary prisoners or criminal suspects.
the Dublin Convention
·
Amnesty
International recommends that the Refugee Applications Commissioner
develop guidelines for officials in order to ensure that
circumstances pertaining in the receiving state in respect of each
and every individual returned to another EU state under the Dublin
Convention are investigated. Such guidelines would constitute an
essential safeguard against refoulement.
ii) to the judiciary
·
Amnesty
International recommends that the judiciary refrain from applying the
fourteen day time limit in respect of asylum-seekers applying for
judicial review of decisions concerning them further to the Illegal
Immigrants (Trafficking) Act 2000.
Amnesty International has also addressed a
number of recommendations to the Irish Human Rights Commission
regarding the protection of the right to seek asylum at section IV
below.
[1] See further, Ursula Fraser: Asylum Law and Policy in Ireland – A Critical Guide, published by Amnesty International Irish Section, December 2000. This document provides essential additional information regarding asylum law in Ireland and Amnesty International’s specific concerns in this area.
[2] Universal Declaration of Human Rights, Article 14(1).
[3] A refugee is defined in Article1A(2) of the 1951 Geneva Convention relating to the Status of Refugees (the Refugee Convention) as a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...”
[4]
The prohibition of refoulement is a norm of customary international law
which applies to all states. The prohibition is also set out in the
Refugee Convention and the Refugee Act, as amended, at Section 5(1)
which states that:
“A person shall not be expelled from the State
or returned in any manner whatsoever to the frontiers of territories
where, in the opinion of the Minister, the life or freedom of that
person would be threatened on account of his or her race, religion,
nationality, membership of a particular social group or political
opinion”.
[5] Amnesty International Irish Section, “The Refugee Act Amendments: The risks of getting it wrong”, Dr. Colin Harvey. Available at http://www.amnesty.ie
[6] The Refugee Act, 1996 (as amended), Section 8(2).
[7] EU Conclusion on Minimum Guarantees for Asylum Procedures, paragraph 5, “asylum seekers must be informed of the procedure to be followed and of their rights and obligations during the procedure in a language that they can understand”. The conclusion is not legally binding but was agreed upon by the EU Member States as representing minimum standards.
[8] UNHCR EXCOM Conclusions on International
Protection. Conclusion No.8 (XXVIII) Determination of Refugee
Status.
[9] European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), “Substantive Sections” of the CPT’s General Reports, Strasbourg, 18 August 2000, Chapter V, Foreign Nationals detained under Aliens Legislation, paragraph 34, CPT/Inf/E (99) 1 (REV. 1).
[10] Irish Refugee Council, Asylum in Ireland, A Report on the Fairness and Sustainability of Asylum Determinations at First Instance, July 2000.
[11] UNHCR EXCOM Conclusion No. 64 (1991) on Refugee Women and International Protection
1990 (Executive Committee – 41st Session) No. 64 (XLI).
[12]See further European Court of Human Rights Judgments of Osman v UK, 28 October 1998 and A v UK, 23 September 1998.
[13] See also The Irish Council for Civil Liberties Women’s Committee, Women and the Refugee Experience: Towards a Statement of Best Practice, June 2000.
[14] Illegal Immigrants (Trafficking) Act 2000, Section 5 (2), “An application for leave to apply for judicial review… shall (a) be made within the period of 14 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the Order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made”.
[15] Amnesty International, “Ireland, Briefing to the UN Human Rights Committee on Human Rights Concerns”, EUR 29/001/2000, August 2000.
[15] Ursula Fraser: Asylum Law and Policy in Ireland – A Critical Guide, published by Amnesty International Irish Section, December 2000. See also, the exchange of correspondence on this matter between Amnesty International and the Department of Justice, Equality and Law Reform in the Irish Times of 20 November 2000, “Refugee Act is denying basic rights”, Ursula Fraser, Amnesty International Irish Section and the Irish Times of 11 December, “Let’s heed the words of the Refugee Act”, Mr O’Donoghue, Minister for Justice, Equality and Law Reform.
[16] Department of Foreign Affairs Press Release, 1 July 2000, “3rd Department of Foreign Affairs/NGO Human Rights Forum – Keynote Address by Minister of State, Liz O’Donnell T.D.”
[17]
In addition,
Amnesty International considers
that several
of
the
grounds for detention also fail to comply with Article 9 of the
International Covenant on Civil and Political Rights, which
proscribes arbitrary arrest and detention along the same lines as the
ECHR as described below.
[18] European Convention on Human Rights, Article
5 – Right to liberty and security:
“everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by a competent court;
b.
the lawful arrest or detention of a person for non-compliance
with the lawful order of a court or in order to secure the fulfilment
of any obligation prescribed by law;
c.
the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence
or fleeing after having done so;
d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e.
the lawful detention of persons for the prevention of the
spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
f.
the lawful arrest or detention of a person to prevent his
effecting an unauthorised entry into the country or of a person
against whom action is being taken with a view to deportation or
extradition.”
[19] 1951 Geneva Convention Relating to the Status of Refugees, Article 31 : “The contracting State shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened ... enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.
[21] European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT),
“Substantive Sections” of the CPT’s General Reports,
Strasbourg, 18 August 2000, Chapter V, Foreign Nationals detained
under Aliens Legislation, paragraph 30,
CPT/Inf/E (99) 1 (REV.
1).
[22] See Refugee Act, 1996 (Places and Conditions of Detention) Regulations 2000. Statutory Instrument S.I. No 344 of 2000.
[23]
European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT), “Substantive
Sections” of the CPT’s General Reports, Strasbourg, 18
August 2000, Chapter V, Foreign Nationals detained under Aliens
Legislation, paragraph 28, CPT/Inf/E (99) 1 (REV. 1).
[24] Refugee Act, 1996 (Places and Conditions of Detention) Regulations 2000. Statutory Instrument S.I. No 344 of 2000, Article 5(2)(f).
[25]
European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT), “Substantive
Sections” of the CPT’s General Reports, Strasbourg, 18
August 2000, Chapter V, Foreign Nationals detained under Aliens
Legislation, paragraph 27, CPT/Inf/E (99) 1 (REV.
1).
[26] See further: Ursula Fraser: Asylum Law and Policy in Ireland – A Critical Guide, published by Amnesty International Irish Section, December 2000.
[27] See further, UNHCR Guidelines on the Protection of Refugee Women, 1991.
[28] See further, Amnesty International’s 15 steps to protect Women’s Human Rights, available at http://www.amnesty .org
[29] See further, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), “Substantive Sections” of the CPT’s General Reports, Strasbourg, 18 August 2000, Chapter V, Foreign Nationals detained under Aliens Legislation, paragraph 34, CPT/Inf/E (99) 1 (REV. 1).