EU STATES GRANTED PROTECTION TO OVER 100,000 ASYLUM SEEKERS IN 2012

Asylum decisions in the EU27 Member States granted over 100,000 asylum seekers protection in 2012.

The EU 27 Member States granted protection to 102, 700 asylum seekers in 2013, compared with 84,300 in 2011. The largest groups of beneficiaries of protection status were citizens from Syria, Afghanistan and Somalia.

Ireland had a total of 1625 decisions; of these 935 were first instance and 690 were final decisions on appeal. The largest groups granted protection status were from Syria (the Irish Government recently announced an extra €1.6 million of government funding for Syrian refugees which will be divided between Concern, Goal and Oxfam for the provision of humanitarian assistance), Somalia and Pakistan.

The total of positive decisions amounted to only 140; 115 of which were refugee status and only 30 constituted Subsidiary Protection. There were no successful decisions in relation to Humanitarian Leave. 

The EU average approval rate equates to 25.2%. Ireland unfortunately has the significantly lower rate of 8.6%.

These statistics, especially in comparison to some of our European neighbours, highlights the need for an overhaul of the refugee system in Ireland. The significantly below average approval again underlines the serious problems in the decision making process. 

Furthermore, the low success rate for subsidiary protection further emphasises the need to amend our subsidiary protection procedure so it is in line with that of the other EU Member States.

To see the statistics concerning all Member states follow the below link: http://europa.eu/rapid/press-release_STAT-13-96_en.htm?locale=en

Brophy Solicitors

Ireland will not benefit from EU Migration Law advancements

The Irish Presidency has advanced important developments to complete the final two legislative measures on the processing of Asylum Claims forming part of the Common European Asylum System (CEAS).

CEAS is provided for in Article 78 of the Treaty on the Functioning of the European Union. It provides that the Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third country national requiring international protection in accordance with the principle of non refoulement and the 1951 Geneva Convention on the Status of Refugees.

The Irish presidency programme outlined the objectives to secure agreements in relation to the Student and Researchers Directive, Seasonal Workers Directive and the Intra Corporate Transfers Directive. The President also aims to establish the Asylum and Migration Fund Regulation, an instrumental part of an overall framework for EU financial support in the field of international security, to contribute to the operational costs at national and EU level of border control.

Proposals for compromise texts on the recast of the Asylum Procedures Directive and the Eurodac Regulation have been approved by Member States. The adoption of these measures remains subject to the approval of the European Parliament and the Council.

Minister for Justice, Equality and Defence, Alan Shatter, Chair of the Justice and Home Affairs Council stated in relation to these developments:

"Completing the Common European Asylum System will be an important milestone towards ensuring the consistent and equitable treatment of asylum seekers irrespective of the Member States in which they present their asylum application. 327,345 asylum applications were received in the EU in 2012, an increase of 7.8% on the previous year. It is vitally important that the Union has a system that ensures that procedures for processing applications are both fair and effective but also robust and not open to abuse. I am pleased that the Irish Presidency has been able to advance discussions with the Parliament and we are now hopeful of reaching an early agreement on this basis."

However, whilst it is evident these developments mark an important progression in the area of migrant reform, it must be noted that Ireland has ‘opted out’ of participating in the revised laws which form part of the CEAS, and not signed up to others including the Reception Conditions Directive. Only Ireland and Denmark failed to sign up to the latter, however unlike Ireland, Denmark has provided the right to work in separate legislation. Consequently Ireland will not benefit fully from this important milestone towards ensuring the consistent and equitable treatment of asylum seekers, placing Irish Immigration laws out of line more now than ever with that of other European countries. 

For information on this item and further developments of the Irish Presidency see: http://eu2013.ie/news/news-items/20130327ceaspr/

Brophy Solicitors 

04.04.13

Should the state consider Subsidiary Protection applications when no claim for asylum has been made?

A case dealing with the question of whether the state is entitled to allow Subsidiary Protection applications only where an applicant has been refused refugee status has been referred by the Supreme Court to the European Court of Justice. (Haq Nawaz v Minister for Justice, Equality and Law Reform Ireland and the Attorney General 2012)

The Applicant is a Pakistani National who entered Ireland on a student visa in 2003. He married and Irish national and for that reason was granted permission to remain until December 2005. The marriage was of short duration and in February 2006, the minister notified the Applicant that he was considering issuing a deportation order. Nevertheless the applicant stayed in the country as a full time student.

The applicant did not at any time apply for asylum. He submitted that he does not fear persecution by reason of race, religion, nationality, political opinion, or membership of a particular social group and that he is therefore, not a refugee. However the applicant claims that he is afraid to return to Pakistan because of the indiscriminate violence occurring there.

In June 2009 the applicant made an application for subsidiary protection. The Minister replied stating that the basis for  making an application was that the person applying had been refused refugee status. Since no application  for refugee status had ever been made by the applicant, it was not possible to apply for subsidiary protection status.

The applicant seeks an order quashing the Minister’s decision refusing to consider his application for subsidiary protection and requiring him to determine it. Secondly he seeks a declaration that the national regulations are unlawful and incompatible with the Qualification Directive insofar as they provide that the Minister may not consider an application for subsidiary protection of a person who has not failed in an asylum application.

The applicant submits that  neither Article 78 of the treaty not the Qualification Directive limits the right to apply for subsidiary protection to failed asylum seekers.

In addition he submits that he does not have a well founded fear of being persecuted for a Geneva Convention reason. He says he cannot even complete the asylum application form without selecting an untrue reason.

The applicant submits that it is contrary to the principle of good administration guaranteed by Article 41 of the charter of fundamental Rights of the European Union that he should be required to make an application for refugee status in circumstances where he accepts that he is not entitles to and does not claim that status.

The Minister argues that neither the Qualifications Directive not the regulations permitted the application to make a “stand-alone” application for Subsidiary protection. Submitting that the Geneva convention is the cornerstone of the international legal regime for the protection of refugees and that that position can only be maintained if an application for protection is assessed, first of all, to establish if the applicant in question qualifies as a refugee, with the question of eligibility for subsidiary protection being addressed only where it has been held that he does not.

Additionally the minister argues that the Qualifications Directive Is not concerned with procedures at all and does not impose and procedural obligation on a member state to accept such an application merely because a person subjectively considers that he is not a refugee.

In their consideration, the Supreme Court reiterated that the regulations do not confer any power on the minister to consider an application other that “a person whose application for asylum has been refused by the minister…”

The court considers the true question at issue in this case is whether the Qualification Directive requires Member States, in  their implementing measures, to make it possible for a third country national to make an application for subsidiary protection status without making any application for refugee status.

The Supreme court concluded that in order to determine it is necessary for the court to have answers to some questions and so has referred the case to the Courts of Justice of the European Union with the following question:

“Does Council Directive 2004/83/EC, interpreted in the light of the principle of good administration in the law of the European Union and, in particular, as provided by Article 41 of the Charter of Fundamental rights of the  European Union, permit a member state which has not adopted a single administrative procedure for determining both applications for refugee status and subsidiary protection status, to provide in its law, when implementing the Directive, that a third country national or stateless person be enabled to apply for subsidiary protection status only when that person has applied for and been refused refugee status in accordance with national law” .

Brophy Solicitors

 7.12.12

A Need for Reform

The much needed reformation of the Irish Asylum system has once again been thrust into the spotlight with the recent decision of M.M v Minister for Justice, Equality and Reform, Attorney General.

Under current legislation, the European Communities (Eligibility for Protection) Regulations, when an unsuccessful asylum applicant is informed that his or her application for refugee status has been refused, s/he will be informed that the Minster proposes to make a deportation order. S/he will have the opportunity to apply to the Minister for Justice, Equality and Law Reform for permission to remain in the State on the grounds that he or she is eligible for 'subsidiary protection'. Subsidiary protection is available to a person who does not qualify as a refugee but if returned to his or her country of origin, would face a real risk of suffering serious harm as defined for the purpose of the Directive.

 On 22^nd November the European Court of Justice held in the case of M.M v Minster for Justice, Equality and Reform, Attorney General, that Ireland’s system of subsidiary protection does not comply with the right to be heard, a fundamental principle of European Union Law. 

Applicants for subsidiary protection make a paper application to the minister, who on the basis of this application and asylum makes a decision. The government argued as the applicant has a right to be heard in the application process, it is unnecessary to hear the applicant again in the subsidiary protection procedure.

The Court of Justice firmly rejected this argumentation. The Court noted as Ireland has established two separate procedures for dealing with asylum and subsidiary protection, an applicant has the right to be heard in the context of both procedures.

Ireland is in fact the only EU country not to have a single asylum and subsidiary protection procedure. In Ireland, an applicant must first apply for asylum – a process which may take years, and receive a firm rejection of their asylum before qualifying as eligible to apply for subsidiary protection.

The complicated and cumbersome nature of the Irish Asylum application process was also recently highlighted in the decision last month in the Supreme Court case Okunade v Minister for Justice Equality and Law Reform & the Attorney General, [2012] IESC 49 (2012). The Supreme Court granted injunctions restraining the deportation of a Nigerian woman and her five year old Irish-born son while they challenged their deportation order and a ministerial decision refusing them subsidiary protection. Overturning the decision of the High Court, the Supreme Court found that the deportation order constituted a disproportionate interference in the family life of the young boy who knew no other country than Ireland. The Asylum process of this country was held to be the blame for the amount of time the family had resided here.

Brophy Solicitiors

30.11.12 

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

“Urgent Review” of Asylum Process is required

In their report “Difficult to Believe: the assessment of asylum claims in Ireland”  the Irish Refugee Council call for an “urgent review” of the entire asylum process. The vast majority of asylum cases in this country are refused with only 5% of applicants being granted protection despite apparently legitimate claims.

The report criticises the decision makers in Asylum applications and appeals. Their main concern is a “culture of disbelief” that permeates the asylum system that seemingly results in many applications not receiving fair consideration. The number of successful asylum seekers in Ireland is less than half the EU average according to the report. Conversely, the UK granted just over one in five of the applications decided in the same year (22%) This is four times the amount afforded protection in Ireland.

Sue Conlan. chief executive of the council, said the study had been carried out “to get a better understanding of why the majority of applications for refugee status in this country are refused”.

The report concluded that the application and appeal processes themselves were behind the low acceptance rate here.

“Particularly where the Tribunal is concerned there are reasons to believe that there is a ’culture of disbelief’ that informs the approach that some Tribunal members take.”

 http://www.irishtimes.com/newspaper/ireland/2012/1017/1224325339068.html   

Brophy Solicitors

23.10.12

UN High Commissioner for Refugees criticizes our Asylum system

Antonio Guterres, UN High commissioner for Refugees has said that Ireland would benefit from a simpler asylum process. Ireland has one of the lowest numbers of successful asylum applications in the EU.

He was in talks last week with the Department of Justice and Equality  that  “in relation to potential improvements in the Irish asylum system, namely the possibility, through legislation, of the simplification of procedures”.

He mentioned that sought also to “improve the quality of the decisions”.

He noted that “In Ireland, I would say that the tradition is of a very strict approach to these things and what is now being discussed is how to have a more nuanced approach.”

In addition he expressed “deep gratitude and appreciation” of Irelands continued support of his office despite  its economic difficulties.

http://www.irishtimes.com/newspaper/ireland/2012/1012/1224325187869.html

Brophy Solicitors

19.10.12

Asylum ruling quashed by Supreme court

In a unanimous decision last week, the supreme court held that the High Court had wrongly refused injunctions halting the deportation of a Nigerian woman and her Irish-born child  pending a decision on their challenges of deportation orders and refusal of subsidiary protection.

The test case raises broad issues affecting other cases and shines a light on the result of delaying decisions asylum cases over a number of years.

In this case the court found that the interference of family life of four-year-old Daniel Okunade, who “knew no other country but Ireland” and who could not be culpable for long delays in dealing with his case, was enough  to allow the injunction.

With over 1000 asylum cases pending in this country, the supreme court determined that the “extremely complicated” and “cumbersome” laws regarding  deportation and subsidiary protection contribute considerably  to delays and add to the court’s difficulties.

 http://www.irishtimes.com/newspaper/ireland/2012/1017/1224325338894.html

Brophy Solicitors

17.10.12

Asylum children in 'extreme poverty'

Brophy Solicitors would like to take this opportunity to commend the IRC (Irish Refugee Council) on their report into the living conditions of young adults and children in direct provision accommodation within the State.

The report was published today and highlights issues which arise with direct accommodation for asylum seekers. The report found that there were numerous reports of malnutrition amongst young women and expectant mothers.

Within its report the IRC highlighted one particular case from a Mayo accommodation center that once a child reached six months, no more baby or toddler foods would be provided and the children would only be supplied with food “consistent with the rest of the residents”.

Brophy Solicitors

18.09.12

http://www.irishtimes.com/newspaper/breaking/2012/0918/breaking39.html

Tamils to be deported despite clear torture evidence

An article in the UK Guardian from Friday, 14^th September, reports that the UK intends to move forward with a mass deportation of Tamils to Sri Lanka next week. Many of them arrived in the State to claim asylum, describing accounts of torture and ill-treatment.

Human rights organizations Freedom from Torture and Human Rights Watch both have corroborated those statements, arguing that “the government has severely underestimated this possibility [of torture] when it comes to returned Tamils, many of whom are routinely arrested and questioned about links with the Liberation Tigers of Tamil Eelam (LTTE) and activities in the UK, with torture often playing a part.” The UK Guardian has previously reported about aTamil man who had been refused asylum in the UK and tortured upon his return to Sri Lanka. Despite this, the UK Border Agency refuses to discuss the flights that are scheduled to deport the Tamils until after they have taken off.

Freedom from Torture notes, “This rate of referrals involving torture following return from the UK to a particular country is, to the best of our knowledge, unprecedented since Freedom from Torture was founded in 1985.”

A UK Border Spokesman said, “The UK has a proud record of offering sanctuary to those who need it, but people who do not have a genuine need for our protection must return to their home country. We only undertake returns to Sri Lanka when we are satisfied that the individual has no international protection needs. The European Court of Human Rights has ruled that not all Tamil asylum seekers require protection.”

The head of Human Rights Watch, David Mepham, has said that HRW has documented a series of cases where failed asylum seekers from Tamil have faced torture or serious threats of torture upon their return to Sri Lanka. He recommended, “Given the very serious risk of torture facing many Tamils returned from this country, the UK should immediately impose a moratorium on these returns, pending a thorough review of UK policy in this area and the introduction of new assessment guidelines.”

At this point, it appears that the flights will go ahead as scheduled, but hopefully in the future, the UK Border Agency will more carefully review each case to prevent Tamils being returned to a situation where they would face torture or inhuman or degrading treatment or punishment.

Brophy Solicitors

17.09.12

http://www.guardian.co.uk/uk/2012/sep/14/tamils-deported-despite-torture-evidence

Bernardo’s chief: in the best interests of the children

An article from Tuesday, 11^th September in the UK Guardian described the efforts of Anne Marie Carrie, the chief of Barnardo’s. It is an accommodation centre for families who have been refused asylum and are waiting to be deported back to their home countries. She says that her organization comes under fire often, from anti child detention organizations, but she claims that keeping the children with their families, even if it is in a detention centre, is far better than the alternative, which is to split up the families as they wait and send the children to foster homes to await deportation.

She also acts as a crucial voice for these families, as their rights are commonly ignored. She is unafraid to call the necessary authorities to ensure that the rights of the families are looked after, even though the State has denied them official protection. “If not us, then who?” she commonly asks.

Barnardo’s is a service at Cedars, the “pre-departure accommodation centre” that provides accommodation for failed asylum seekers. At the onset, Barnardo’s established a set of “red lines” that could not be crossed regarding the rights of refugees. Once crossed, Carrie took action. She raises concerns every time she believes the rights of refugees have been breached, and her voice is a valuable one to these vulnerable families.

Brophy Solicitors

12.09.12

http://www.guardian.co.uk/society/2012/sep/11/barnardos-chief-social-care-asylum-seekers

Closure of asylum seeker centre criticised

An article in the Irish Times from Monday, 10^th September, discussed the closure of the Lisbrook centre, formerly the Ibis Hotel, which accommodates several hundred asylum seekers and their families. These families are now set to be relocated to other refugee accommodation centres around Ireland, but the individual relocation sites have yet to be determined.

This closure puts an already vulnerable population at additional risk. Refugees who were housed at the Lisbrook centre have endured many trials in their journey to Ireland, and they settled at the centre with the hopes that they could begin anew in Ireland. Now, as the families face uprooting, parents are worried about their children having to switch schools, communities face the loss of neighbours, and weary refugees have to face yet another move. The closure happening in mid-September shows additional lack of consideration for school children who may be already settled into a new school.

Many of the refugees were too frightened to have their names quoted in the newspaper, but they anonymously reported “serious trauma,” especially since some of them have already spent time in eight different provision centres. They were hoping to finally settle down in Lisbrook, only to find that they had to relocate once again.

The community in Galway is outraged as well. Labour TD for Galway West, Derek Nolan, said it’s a “terrible way to treat people,” and he promised to contact the Department of Justice to discover why the centre has been closed. The information provided to the refugees about their future provisions is frustratingly vague so many families are still left questioning what the future holds for them. The criticism that has risen as a result of this closure should demonstrate to the Department of Justice, and the Reception and Integration Agency, the organization responsible for direct provision accommodation, that a more stable living situation is crucial for this population of asylum seekers.

An article from 11^th September describes how an anti-racist group has appealed to Mr Alan Shatter, Minister for Justice, to review and hopefully quash the decision to close the centre. The Department have stated that “Lisbrook is closing as part of an ‘ongoing consolidation’ of accommodation for asylum seekers across the State.” However, an organization against Galway called “Residents Against Racism” has appealed to the Minister to review the decision to close the centre.

Brophy Solicitors

11.09.12

http://www.irishtimes.com/newspaper/ireland/2012/0910/1224323799097.html

http://www.irishtimes.com/newspaper/ireland/2012/0911/1224323846858.html

Article from UK’s “Asylum Aid” Quarterly report: The Director’s Note

Minister Damian Green has revealed plans to reform the UK’s asylum system, specifically regarding the “culture of disbelief.” Frequently, claims of asylum are denied because the interviewers question the applicant’s credibility, or believe they are outright lying about the treatment they received in their country of origin. This objectivity and bias leads to many poor decisions, reports author Maurice Wren. Asylum Aid, the UK-based asylum assistance organization, is committed to providing quality legal advice to vulnerable asylum-seekers, helping them overcome bureaucratic hurdles and the “culture of disbelief.” Wren calls on the Home Office to show leadership in this matter.

Brophy Solicitors

24.08.12

http://www.asylumaid.org.uk/data/files/publications/194/AA_NewsletterSummer_2012WEB.pdf

Journalist asylum-seeker released from detention

A Cameroon national who sought asylum in the UK was released from detention, reports the UK Guardian in an article reported on Monday, 13^th August.

The man fled Cameroon in 2007 after being abused by the ruling governmental party for supporting opposition groups. He was a journalist in Cameroon and he suffered mistreatment. He has resided in the state since, where he met and married a charity worker. He was ordered to return to Cameroon to apply for a spouses visa, and he offered to return voluntarily if the government could guarantee his safety, but as they could not, he refused to go. He was detained and given a deportation order, but has now been released and has been granted permission to apply for Leave to Remain.

Brophy Solicitors

http://www.guardian.co.uk/uk/the-northerner/2012/aug/13/immigration-refugees-bernard-mboueyeu-cameroon-sheffield-uk-borders-agency