SPOTLIGHT ON IRELAND’S FLAWED ASYLUM AND PROTECTION PROCEDURES AT UCD CONFERENCE FOR WORLD REFUGEE DAY

On Friday the 20th June last, Karen Berkeley from our offices presented a speech on statelessness for the conference 'Beyond the Single Procedure: Reforming Ireland's Protection System' held at University College Dublin’s Sutherland School of Law to mark World Refugee Day. Karen’s topic was Statelessness: Ireland’s obligations under the 1954 Convention relating to the status of Stateless persons.

Karen discussed the recent successful case of her client Mr Roman Uustalu who was granted the first declaration of stateless status in Ireland. Karen highlighted the urgent need for a comprehensive legal framework to be implemented to fulfil Ireland’s obligations under the 1954 Convention. To see a summary of Karen’s speech, see the attached link: http://brophysolicitorsimmigration.blogspot.ie/2014/06/summary-of-karen-berkeleys-speech-for.html.

Other important issues discussed were the asylum appeals backlog and the proposed single procedure reform to the asylum system.

It was noted that the delays in the high court for hearing appeals by asylum seekers whose refugee status applications have been rejected is one of the main reasons that people spend so long in direct provision centres. There are over 1,000 asylum cases waiting to be heard in the High Court. Barry Magee, the chairman of the Refugee Appeals Tribunal, said that “It would take four years and seven months to get through the current cases on the list, without any new ones being added.”

He added that he would be willing to seek alternatives mechanisms to determine those cases. Sophie Magennis, the head of office with UNHCR in Ireland, delivered the keynote speech and offered alternative dispute resolution as a mechanism which could be considered as a means to reduce the backlog in the High Court.

Patricia Brazil, a barrister and lecturer in law at Trinity College Dublin, spoke about the history of the protection system and judicial review. She noted that it was surprising that Ireland’s figures for judicial review of asylum cases were not higher, given the fragmentation of the asylum system. 

Ms Magennis further noted that UNHCR welcome the proposed single procedure. She said that additional measures could also be introduced, such as the easing of restrictions of the direct provision system and greater access to integration supports for applicants.

 

Karen Berkeley
Brophy Solicitors

WORLD REFUGEE DAY

World Refugee Day is taking place on the 20th of June. This day aims to draw attention to hardship faced by the millions of refugees who are forced to leave their homes as a result of conflict and persecution. World Refugee Day also aims to commemorate the cultural contribution that refugees make to societies around the world. There are events held worldwide to celebrate the courage, resilience and strength of refugees and the solidarity of the countries that assist in providing asylum. There are many events taking place in Ireland to commemorate this day.

 

Nasc, the Irish Immigrant Support Centre and UCD’s Sutherland School of Law are hosting a conference to mark World Refugee Day from 10am to 3pm. The conference is titled Beyond the Single Procedure: Reforming Ireland’s Protection System, and will include speakers from the United Nations High Commissioner for Refugees (UNHCR), various refugee support agencies in Ireland, legal practitioners working in the area. Karen Berkley from our office will be speaking on topic of Statelessness. The conference will serve as a forum to discuss the refugee protection in Ireland and the impact of the pending reforms. To attend this event, please contact Bethany Wynee-Morgan on Bethany@nascireland.org. 

 

The Irish Refugee Council are holding an event at Studio Six, Temple Bar Gallery, Dublin 2 at 6pm with guest speak Geoffrey Shannon, Special Rapporteur on Child Protection. The success of the Irish Refugee Council’s Advocacy programme will be discussed in light of the launch of its evaluation and resource guide for service providers working with separated children. To attend this event, please RSVP to caroline@irishrefugeecouncil.ie. 

 

The UNHCR has organised a book-reading campaign with libraries and bookshops across Ireland, beginning the 16th of June. This campaign will draw attention to books that are based on experiences of refugees, such as The Kite Runner, which will in turn educate both children and adults on the devastating impact of war on families.

 

 

UNHCR and Sport Against Racism Ireland are holding the event “The Fair Play Cup, Celebrating World Refugee Week” at the Law Society Gardens, Blackhall Place, Dublin 7. This event will draw football players from refugee and community groups and aims to highlight the positive experiences of refugees in Ireland and draw attention to the plight of refugees worldwide.

 

RECOGNITION OF STATELESSNESS IN IRELAND

In Ireland, there is no procedure for the determination and recognition of a person’s status as stateless, despite the fact that Ireland is a party to both the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

The UNHCR Irish office has highlighted this failing in the Irish Immigration system, and it is stated as follows on their website

“UNHCR has noted that, in Ireland there is currently no discrete procedure in which a stateless person can have their status considered. The absence of identification impacts on a stateless persons’ ability to get, for instance, travel documents, and to make representations to the Minister to waive the naturalization requirements as specified in Section 16 (g) of the Irish Nationality and Citizenship Act 1956 (as amended).

UNHCR is currently working with the Irish authorities to see how statelessness identification procedures might be introduced in Ireland.”

It is surprising that the Irish State appears to recognize statelessness in one very narrow respect – applications for Naturalization. Section 16 (g) of the Nationality and Citizenship Act 1956 (as amended) provides the Minister for Justice and Equality, the discretion to waive the normal conditions for naturalization for both refugees and Stateless persons. It is strange that stateless persons can apply for such a benefit where they cannot officially apply to the State to have their stateless status recognized. 

It is also surprising that to the Travel Document Section of the INIS website indicates the Minister’s policy in issuing travel documents to stateless persons as follows;

“The State (Irish Naturalisation & Immigration Service) is obliged to issue travel documents to persons granted protection in accordance with:

• The 1951 UN Convention relating to the Status of Refugees (Article 28) and The Refugee Act, 1996 (Article 4)
• The 1954 Convention relating to the Status of Stateless Persons (Article 28)
• The European Communities (Eligibility for Protection) Regulations 2006 (SI 518 of 2006)”

However, it is impossible to obtain such a stateless Travel Document in Ireland, because no person can currently obtain recognition of their stateless status. 

We have recently issued High Court proceedings seeking a declaration that the Minister’s failure to have in place a transparent and effective system by which our client can apply for and obtain a declaration of statelessness and a 1954 Convention Travel Document constitutes a breach of the our client’s right to the effective exercise of his legal rights under European Union law, the Constitution and the European Convention on Human Rights Act 2003. 

Until the Minster has set up a fair process for the determination and recognition of stateless persons, we suggest that all stateless persons resident in the State should write to the Minister for Justice, to make the following requests ;

1. Request the Minister to acknowledge your status as a stateless person by way of a Certificate of Statelessness
2. Request that the Minister provide you with a Travel Document pursuant to the 1954 Convention relating to the Status of Stateless Persons
3. Request the Minister to explain why no mechanism has been put in place to acknowledge your status as stateless, despite Ireland being a party to the Conventions on Statelessness 
4. Request the Minister to explain if and when such a mechanism will be put in place.

Brophy Solicitors

Revocation of Refugee Status

It has been reported in an article in today’s Irish Times , that Minister for Justice Alan Shatter, recently confirmed in a parliamentary question that 57 people had their refugee status revoked since he took office in March 2011. The Minister cited the main reason for the revocations being the provision of ‘false or misleading information’.  

Theses figures show a substantial increase in the numbers of revocations of refuge status in the recent years. 

Reference is made in the Irish Times article to a case of Brophy solicitors where a man from Darfur had been given refugee status but when he tried to have his family brought over to Ireland. The Minister wrote to him saying he proposed taking away his refugee status as he was found to have changed information on how he got to Ireland. The client provided an erroneous answer in his asylum interview solely with respect of the specific dates on which he witnessed certain attacks on his village and on his fellow villagers. He also failed to provide information in relation to a short period he spent in another EU Member State prior to coming to Ireland and claiming asylum. He instructed that the error was made on account of a number of factors. When interviewed by the Department of Justice official, he was extremely fearful of making any reference to time spent the EU Member State prior to arriving in Ireland as he feared that he would be returned there, believing he would subsequently be removed directly to Sudan where he would face ill-treatment and torture. Furthermore, on arrival in Ireland, he was confused and still experiencing trauma. It was never the intention of the client to fabricate an asylum claim or elaborate his account in any way but rather to protect himself against potential return to Sudan. The only error he made was only with respect of the dates, the entirety of his remaining account was truthful and correct.

Through very detailed written submissions and explanations over an extended period of time, ultimately, the Minister decided not to revoke our client’s refugee status. The case highlights the caution needed in the revocation procedure for refugees.  It is essential that the refugee has access to good standard of legal representation. However, it is questionable whether such applications fall within the remit of the Refugee Legal Service, and often refugees tend to have not option but to instruct private solicitors.  

The grounds for revocation of refugee status are set out in Section 21 of the Refugee Act 1996 . If one of those grounds exist, the Minister has a discretion to revoke the refugee status.  The act directs that the Minister shall not revoke a declaration on the grounds specified in paragraph (e) or (f) where the Minister is satisfied that the person concerned is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of his or her nationality or for refusing to return to the country of his or her former habitual residence, as the case may be.

When seeking to revoke the revocation status of an individual, it is noted that following the guidance of UNHCR, when considering cancellation of refugee status, it is a requirement that the decision-maker be sensitive to the particular circumstances surrounding the application for asylum.

 ‘UNHCR Note on Cancellation of Refugee Status’, paragraph 23,:

When establishing whether there was an “intention to deceive”, decision-makers must be sensitive to the special circumstances which surround applications for asylum. Traumatic experiences, time lapse or the intensity of past events often make it difficult for an applicant to speak freely and provide a full factual account without inconsistencies or confusion. Minor omissions or inaccuracies, vagueness or incorrect statements, which are insubstantial, should not be used as decisive factors undermining an applicant’s credibility, much less deemed sufficient to establish an “intention to deceive”. … In addition, it should be noted that cancellation does not serve as a “punishment” for incorrect statements.’

‘The applicant must have presented a claim which is coherent and plausible, not contradicting generally known facts, and therefore, on balance, capable of being believed …

‘UNHCR Note on Cancellation of Refugee Status’, paragraph 36:

Cancellation may be justified only if the (new) evidence, had it been before the determining authority at the time, could have supported a negative finding with regard to the applicant’s credibility and/or the well-foundedness of his or her fear of persecution for a Convention reason, or if it would have been sufficient to establish the existence of an exclusion ground provided for under the 1951 Convention.’

Due regard must also be given in respect to whether the revocation could be considered as a proportionate action. Any decision to revoke refugee status which could raise grave human rights concerns and be considered as  being  highly prejudicial to the individual, would lead to a potential breach of their human rights protected under the European Convention on Human Rights (ECHR). This too is reflected in the UNCHR.

‘UNHCR Note on Cancellation of Refugee Status’, paragraph  8:

 ‘Whenever a final administrative decision is reopened with a view to its possible invalidation, the general principles of legal certainty and protection of legitimate expectations, or “acquired rights”, need to be reconciled with requirements stemming from the principle of legality … the principle of proportionality requires that the effects of invalidating a flawed decision for the person concerned be taken into consideration. The guarantees and safeguards of procedural fairness also apply.

‘UNHCR Note on Cancellation of Refugee Status’, paragraph 9:

‘In summary, irrespective of the reasons for reopening a refugee’s case, the invalidation of refugee status ab initio may be lawful only if there are grounds for cancellation, supported by adequate evidence; if the consequences of cancellation for the individual concerned are clearly not disproportionate and of a seriously prejudicial nature; and if the decision to cancel is made in due observance of the guarantees and safeguards of procedural fairness.’

Brophy Solicitors

22.1.13

Tackling the Culture of Disbelief in Asylum Claims

Earlier this month, following the Irish refugee council’s report ‘Difficult to believe’, a conference was held on Credibility in asylum claims.

Professor Guy S. Goodwin Gill a senior research fellow and professor of International Refugee law at Oxford University was the keynote speaker.

He spoke about the protection of refugees as “a matter of international obligation”, stressing the importance of “a fair and efficient procedure” in the determination of asylum claims. He highlighted that the 1951 Refugee Convention says nothing about procedures or process leaving its implementation up to the states themselves.

He described how a fair process must include certain essential elements such as a full hearing; appropriate evidential standards; evidence-based decisions and the requirement of a review or appeal.

In terms of establishing the risk of persecution he noted the problems with the onus being placed solely on the applicant and said practical considerations impose a duty on the decision maker.

In discussing the decision in Rustamov  v Russia 2012, the professor asked “what must asylum seekers show?”

In this case,  the Court pointed out that requesting  an applicant “to produce "indisputable" evidence of a risk of ill-treatment in the requesting country would be tantamount to asking him to prove the existence of a future event, which is impossible, and would place a clearly disproportionate burden on him.”

The professor asserted that “The Strasbourg court is clearly sending signals about the process of decision-making.”

He also noted that the appreciation of fear of persecution is based on an objective situation and said that the decision-making process requires us to look at a series of variables making it unpredictable.

The professor noted that decision makers can’t ever have absolute confidence in their decisions but insisted that a well established process anchored in International law is needed.

In terms of personal credibility, he noted that although asylum applicants have a duty to tell the truth, there is a duty on decision makers also. He claimed that too little attention is paid to assessment and more attention needed to be paid to form for example early legal assistance, affirming that “this is what experience has taught us”.

The professor said he was pleased to read the IRC report and agreed that the system is not working and is not in compliance with international obligation. He described our system as “a ready-made case-study of what not to do”.

He highlighted how medical evidence is not given any weight in Ireland. In contrast he gave an example of a UK Court of Appeal case in which the applicant was totally lacking in credibility but succeeded on the basis of medical evidence alone.

The professor also discussed decision-makers assumptions, taking for example the claim that you can’t through an airport on a fake passport.

In terms of Appeal and review Professor Goodwin Gill said that it is not enough to say “I do not believe” and described the system as a “world of inferences”. He noted that almost universally a late submission equals a lack of credibility.

He expressed that what we want is a picture of the individual in context, concluding that “The individual needs to be brought back into the picture, back into the realm of international law.”

Justice Catherine McGuiness, who was chairing this discussion added that the “the narrow concept of judicial review opens itself up to a culture of disbelief.”

The following speaker was Professor Rosemary Byrne an associate professor of International and Human rights law and the Director of the centre for post-conflict justice at Trinity. Professor Byrne said that a “serious reconsideration of the system was needed” and that there was reason for significant concern over the low recognition rate here.

She discussed asylum testimony as human rights testimony and noted that “the nature of the asylum seeker as a victim has an impact on the way testimony is presented”.

She expressed the importance of rethinking how we approach credibility.

She mentioned Canadian studies that highlight a “presumptive scepticism” in asylum claims showing that unstated assumptions are driving the process.

She mentioned in particular the problems of the unstated assumption that the motivations of asylum seekers are to deceive the system.

Following this Dr. Jane Herlihy, Executive Director of the centre for the study of Emotion and the Law (CSEL) gave a presentation on psychological evidence in asylum claims. She focused particularly on the diagnosis of post traumatic stress disorder and emphasised that the absence of a diagnosis does not disprove a history of trauma just as the presence of a diagnosis is not evidence of trauma.

Fadela Novak-Irons, the UNHCR Policy Officer for Europe, described the importance of quality in decision making and expressed how credibility was at the core of this process. She highlighted the various challenges faced by the system such as decisions under conditions of uncertainty; Absence of witnesses; General nature of country of origin; human behaviour; the role of memory as well as trauma and vulnerabilities.

She went on to discuss the CREDO project currently been undertaken by the UNHCR and described it as taking a multidisciplinary approach to these issues.

The aim is for the UNHCR to launch new credibility guidelines by 2014.

Brophy Solicitors 

26.11.12

Successful Judicial Review challenge against RAT on basis of Failure to Consider Tutsi/Rwandan Affiliation, the Risk as a Failed Asylum Seeker and Unsustainable Conclusions made about the South African Immigration System

M.T.T.K (Democratic Republic of Congo) v Refugee Appeals Tribunal & Ors [2012 IEHC 155]

This case concerned an application for judicial review in respect of a decision by the Refugee Appeals Tribunal, affirming a recommendation by ORAC, not to grant the applicant refugee status.

The applicant claims to be a national of the Democratic Republic of Congo. He applied for asylum in February 2006 based on his fear of persecution arising from his race, political opinion and membership of a social group. He alleged that he is of mixed ethnicity and in the DRC he is viewed as Tutsi or as having Rwandan connections. The applicant claimed he was jailed and tortured by the DRC authorities in 2004 for purportedly supporting the Rwandan Government. The applicant escaped to Rwanda but was arrested for having no documents and was detained until January 2006. He then travelled to Ireland where the ORAC refused him refugee status in December 2006 and the RAT rejected his appeal as they did not believe his narrative.

Hogan J granted leave on a number of grounds that centred around three issues:

     (1) Risk of persecution based on ethnic origin or perceived connections to Rwanda.

It was clear to the tribunal member that the applicants alleged ethnicity was a distinct and separate point warranting individual consideration. The tribunal member failed to weigh the merits of the claim and the applicant’s lack of credibility did not justify this failure.  An ambiguity does not suffice as evidence of acceptance of ethnicity or Rwandan affiliation.  However, the court went onto conclude that in any case this matter ought to have been considered by the RAT and their failure to do so meant the decision could not stand.

  

     (2) The risk arising to the applicant by virtue of his position as a failed asylum seeker.

The High Court held that the RAT failed to consider this issue. It was expressed in previous case law that failed asylum seekers are not members of a social group and so particularly cogent evidence is required to quash an RAT decision on this issue. The court considered a number of documents in examining the credibility of the applicant’s evidence. Although some documents appeared one-sided and unsubstantiated, a UNHCR article did state that failed asylum seekers are at risk upon their return to DRC by virtue of their ethnicity. The failure of the RAT to adjudicate on the ethnicity/Rwandan affiliation of the applicant in declining to examine the consequences of being returned to the DRC as a failed asylum seeker was of such a nature to warrant setting aside the decision in this case.

    (3) Benefit the applicant is entitled  to derive from the South African immigration system by virtue of his marriage to a citizen of that country

The High Court agreed wit the tribunal that it is questionable that the applicant never attempted to seek asylum in South Africa, given his marital connections to that country. The court held that the tribunal member went far beyond the question of the applicant’s credibility when he made a number of assumptions about South African immigration law, without supporting these conclusions by reference to the law or policy of South Africa. The applicant may be entitled to such benefit but there is nothing in this decision to support this proposition nor was it put to the applicant. The court therefore cannot presume to rely on this decision and so the conclusion was unreasonably made.

On the basis of these three grounds the High Court granted the applicant an order of certiorari quashing the decision of the RAT, remitted the matter for rehearing and to hear submissions in relation to an injunction restraining the respondent from denying the applicant refugee status and deporting him.     

Brophy Solicitors

30.05.12