Asylum and refugees in Ireland

The Irish Times – Friday, September 2, 2011
Effective asylum reforms would reduce reliance on courts

OPINION: There needs to be an effective remedy to asylum review cases
so aggrieved applicants will not have to look to the courts for
redress, writes CATHERINE McGUINNESS

WHEN THE courts resume next month the High Court will return to a
backlog of more than 1,400 asylum and immigration cases. With 59 per
cent of judicial review cases now relating to asylum and immigration
matters, it is time for a reform of the asylum and immigration systems
that would lessen the need for recourse to the courts.

The lack of an effective remedy within the asylum and immigration
systems has created a costly over-reliance on the courts and resulted
in a strain upon court time and resources.

This is in a situation where court resources are already overburdened.

The volume of asylum and immigration judicial reviews is such that
applicants now wait approximately 27 months for an initial hearing and
a further four months for a full hearing. The financial costs are
borne out in the expenditure on legal fees by the Office of the
Refugee Applications Commissioner and the Refugee Appeals Tribunal:
approximately € 17 million over the past seven years, in addition to
the cost of supporting and accommodating people while they wait.

A key reason for this need for recourse to the courts is the lack of
effective remedy within an asylum system in which decisions are
overwhelmingly negative. In our asylum system, the incidence of
positive decisions is so low that in 2010 Ireland gained the dubious
distinction of having the lowest rate of acceptance in Europe: just
1.3 per cent of claims for refugee status and subsidiary protection
were recognised. The only avenue in which to challenge a negative
decision in an immigration or subsidiary protection matter is the
court.

Asylum applicants may appeal a negative decision at first instance to
the tribunal. However, inadequacies in that body mean that its
decisions are often subject to judicial review.

In reality, the tribunal affirms more than 95 per cent of negative
decisions and has been widely criticised for its questionable
independence, lack of transparency and scant or poor reasoning.

Firstly, tribunal members are appointed by the Department of Justice
so that, in essence, the department acts as judge, jury and
executioner in the asylum system.

Secondly, the manner in which the tribunal operates is opaque. There
are no clear published guidelines for the allocation of cases to any
particular member, some of whom have had 100 per cent refusal rates.
Nor are there procedural guidelines for the conduct of proceedings.
Contrary to one of the basic principles of fair procedures, hearings
are held behind closed doors.

Thirdly, decisions of the tribunal are made available only in a
limited way and questions have been raised about the quality of the
reasoning. Decisions have been criticised as “cut and paste” rather
than a serious attempt properly to determine the appeal. In the past,
controversy over the lack of reasoned decision-making has led to
certain members resigning on principled grounds.

In these circumstances, applicants unsurprisingly feel that justice
has not been done in their cases and seek recourse to the courts.

Early in the new Dáil term, the Justice Committee will revisit the
Immigration, Residence and Protection Bill 2010. One of the primary
features of the proposed legislation is the introduction of a “single
protection procedure”. This means that asylum and other protection
claims will be considered simultaneously, rather than the current
situation where an applicant must be refused asylum before they can
seek subsidiary protection.

The Department of Justice believes that this streamlined procedure
will solve the problem with delays and court proceedings. A single
procedure is a welcome development and will reduce waiting times. (It
is worth noting that only two cases qualified for subsidiary
protection in 2010). However, a single procedure is not a panacea for
all that is wrong in the asylum and immigration systems.

Unless and until the initial decision procedure for determining
protection claims is itself altered to decide claims adequately, there
needs to be an effective remedy to review cases so that aggrieved
applicants will not have to look to the courts for redress. What is
needed is a robust, independent appeals mechanism that can effectively
deal with a variety of asylum and immigration cases in an efficient
and transparent manner.

There is a useful example. After more than 40 years of an immigration
appeals system, the UK has adopted a two-tier procedure that is
genuinely independent of the immigration authorities and which is fair
and transparent, reducing the necessity and ability to access the
higher courts.

For example, appointments are made through a judicial appointments
commission, fixed days are allocated, cases are heard according to
published rules, hearings are open (unless there is reason for them to
be in private) and there is a possibility to appeal on a point of law
to an Upper Chamber.

This has the consequence of reducing delays, costs and the anxiety of
those caught up in the system.

In the Immigration, Residence and Protection Bill 2010, the Oireachtas
has the opportunity to put in place an immigration and asylum system
that is fit for purpose. Given the consequences in both human and
financial terms of failing to do so, it is to be hoped that our
legislators will rise to the occasion.

Mrs Justice Catherine McGuinness is patron of the Irish Refugee Council