OUTCOME OF LEGAL CHALLENGE TO DIRECT PROVISION SYSTEM

C.A. and T.A v The Minister for Justice and others

Last Friday a decision of the High Court was handed down in favour of the current Direct Provision regime that exists in Ireland. The Direct Provision system has been the subject of much political and public debate in recent years. This long-awaited decision stated that this highly controversial system was legal and did not breach the human rights of the people who avail of these facilities around the country. While Justice Colm MacEochaide found in favour of the Minister for Justice, the Minister for Social Protection and the Attorney General in this case, it was held that some elements of the system were illegal on the basis that there were disproportionate to the aim of the direct provision system. 

One of the most strongly contested claims was the legality of the payments to people in the Direct Provision system. It was held by the High Court that that the payments of €19.10 and €9.60 for adults and children per week respectively were in fact legal. This is somewhat surprising as this has been the most widely criticised aspect of the Direct Provision system. The justification for the rejection of this argument was that the payment was not a social welfare payment and therefore no statutory footing for the payment was necessary. 

Similarly, the Court found that the Direct Provision system did not breach the applicant’s ECHR Article 8 rights, namely the right to private family life. Although he accepted that such an environment was not the ideal scenario to raise a family, he held that the court could not be satisfied that the direct provision system had reached the threshold of breaching Article 8 of the ECHR. He stated that it was clear that families could enjoy their lives and that there was no evidence produced in court that would suggest that the system is injurious to families. This is also an aspect of the Direct Provision system that has been criticised on the basis that often entire families share a room between them in the Direct Provision system. 

While the decision found against the applicants in this case, some of the house-rules of the Direct Provision system were deemed by the court to disproportionately interfere with the rights of those in the Direct Provision system. Rules permitting unannounced room inspections, rules that preclude people having guest bedrooms and rules regarding signing-in requirements were all held to be disproportionate by the Court. This aspect of the judgment should be welcomed as a step in the right direction. 

It is noteworthy that the High Court criticised the way in which proceedings were brought by the applicants as opposed the substantive legal arguments. The lack of oral evidence by the applicants was highlighted by the Court in this case. It appears therefore that there may be scope for a further challenge to the Direct Provision system in the appropriate case, brought with the benefit perhaps of oral and expert witness evidence. 

Rebecca Keatinge

Brophy Solicitors 

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  

NEED FOR EFFECTIVE ASYLUM REFORM

In an opinion piece in today’s Irish Times, Mrs Justice Catherine McGuinness highlights the staggering backlog of 1,400 asylum and immigration cases waiting to be heard in the High Court and calls for a robust asylum system that will save time, money and promote fairness.

Mrs Justice Catherine McGuinness highlights the serious shortcomings of the current asylum process. She notes that the Refugee Appeals Tribunal affirms more than 95 per cent negative decisions; it lacks transparency, independence and proper reasoning in its decisions. This gives rise to the high number of aggrieved applicant seeking redress by way of judicial review in the High Court. 

There are delays of approximately 27 months for initial hearing of such cases in the High Court.  The current system is most disastrous for the applicants with genuinely strong cases, such that they should have been granted refugee status at the outset but through errors on the part of the Tribunal Member, their application was wrongfully refused. There are many asylum applicants from countries such as Somalia, Afghanistan and Sudan, who have come from situations of serious harm or torture, and they are now caught in an administrative nightmare of waiting in High Court lists, while living in state funded direct provision accommodation centres.  These applicants will be left waiting for many years. 

In one case taken by this office, our client has gone through the whole High Court Judicial Review process on two occasions, and is now awaiting a third determination by the Refugee Appeals Tribunal. We have no doubt to the genuine nature of his case, but very unfortunately for this man, he has had two very poor quality Tribunal decisions and has been in the system for many years. There are many more asylum seekers like him.

It is well established that such seemingly endless waiting periods can have serious impacts on the mental well being of asylum seekers. However, there is little point in raising such points in the High Court in attempt to have certain vulnerable applicants’ case accelerated with priority. It has been indicated by one of the High Court judges that anything bar a life-threatening illness would fail to achieve priority in the List.

Such a system creates a profound sense of hopelessness, if not depression, amongst the applicants who are waiting years to have their cases heard. The situation in Ireland in respect of these delays is now worse than in Greece, a country which was recently found by the European Court of Human Rights to be so bad that asylum seekers could not obtain a fair hearing and that asylum seekers should not be transferred from other Member States to Greece.

We therefore welcome and support the comments of Mrs Justice Catherine McGuinness. Without political intervention and comprehensive new immigration and asylum legislation, it seems that Ireland, like Greece, may be held up before the European Court of Human Rights as a State acting in systematic breach of the fundamental rights of asylum seeker applicants.

Brophy Solicitors

02.09.11

ZAMBRANO/CHEN

HIGH COURT REFUSAL TO FIND A RIGHT TO TEMPORARY PERMISSION TO RESIDE FOR ZAMBRANO/CHEN APPLICANT

It might be of interest to know that this morning we made an application to the High Court for a temporary permission to reside/work pending determination of an Chen / Zambrano application for a third country national father of a Union citizen child, the family unit being permanently resident in Ireland. We argued that such applicants should be treated analogously to applicants for a residence card under Directive 2004/38 on the basis that all rights were deriving from the Treaty, and not the secondary legislation itself. We argued that just as an applicant pursuant to the Directive/Regulations is protected with temporary permission to reside and work, so too should our client be protected in this way. Particularly given that the family was fully dependant on his weekly earnings.

The judge refused our application, and would not entertain the argument that the application was analogous to those made under the Directive. He found that the court should not intervene when an application was before the Minister as this would effectively preempt the Minister’s decision.

It is also of interest to note that the Judge indicated that Zambrano may not be relevant to the case as the child was not a citizen of this State, and did not risk being removed from the territory of the European Union.  To us, this seems to create a clear discrimination between Irish children and other Union citizen children. The former are now distinctly advantaged as their non EU parents can obtain the right to reside and work within Ireland following Zambrano, while the parents of children of a European Union nationality other than Ireland would be forced to leave Ireland and assert these rights in the country of the child’s nationality. This would seem contrary to the fundamental concept of free movement within the EU.

It seems likely that these questions will have to be referred to the European Court of Justice for clarification in the coming months. 

Brophy Solicitors

25.7.11

ZAMBRANO UPDATE

 POSITIVE DECISIONS IN ZAMBRANO APPLICATIONS 

We are happy to update you that the Minister is now granting permission to reside to the “Zambrano” cases which are currently before the High Court. These are the cases which involve challenges to the deportation orders issued against parents of Irish citizen children. Following the European Court of Justice decision in the case of Zambrano v. Office national de l’emploi, Case C-34/09, 8^th March, 2011, all these cases were transferred into a separate list in the High Court, which has been called  “The Zambrano List”. When these cases were last listed in court, the Minister undertook to contact each of the Applicants prior to the 25^th July 2011 to confirm the Minister’s position on their respective cases.  Recently, we have received a number of correspondences indicating that the Minister is now revoking the deportation orders against these applicants, on “exceptional grounds”, and granting a three year period permission to reside. This permission to reside is subject to the condition that the applicant obey the laws of the State, do not become involved in criminal activity, make every effort to gain employment, not become a financial burden on the State and play an active role in the Irish child’s life. We very much welcome these positive decisions.

Karen Berkeley, Brophy Solicitors

20.07.11