Update on Subsidiary Protection and Somali Claims

Last week we attended a very instructive training on recent developments on Subsidiary Protection (Article 15(c) of the Qualification Directive) and Article 3 of the European Convention of Human Rights (ECHR). The training was part of a series of masterclasses  by the Irish Refugee Council. 

Colm O'Dwyer BL took the morning session providing a helpful overview of recent developments in Ireland. Ronan Toal, a barrister at Garden Court Chambers in the UK, then shared his specialist knowledge and expertise in the application of subsidiary protection and Article 3 to Somali claims in particular.

A number of recent cases were discussed in the course of the training. Of particular interest was the most recent reported UK case dated 28^th November 2011 that considers the situation in southern and central Somalia and claims for protection: AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG. Following the decision of the Grand Chamber of the European Court of Human Rights in Sufi & Elmi v the United Kingdom [2011] ECHR 1045, AMM and others provides extensive further country guidance for southern and central Somalia. It is the first reported case in the UK to have found that there was a risk of serious harm to the claimant within the meaning of Article 15(c) in circumstances where there was no such risk arising under Article 15(b) or Article 3 ECHR. Essentially the Court held that a claim for subsidiary protection under Article 15(c) could be made out even in circumstances where there was no breach of Article 3 ECHR.

Ronan Toal also drew attention in the training to the findings in the decision in AMM and Others in relation to a claim under the Refugee Convention. The Court held that a claim for protection on grounds of religious persecution could be made out under the Refugee Convention where an individual was not in a position to comply with the strict al Shabaab religious rules.

These recent developments have implications for Somali asylum applicants who have previously been refused asylum. In light of the dire security and humanitarian situation in southern and central Somalia, a claim for subsidiary protection may be made out. Our own experience is that there continue to be lengthy delays in the Department of Justice determining. Furthermore, applicants for subsidiary protection may now be in a position to submit a new claim for asylum, particularly if they have been out of Somalia for a long period and are in a position to show difficulties they would have conforming with the strict al Shabaab regime.

Brophy Solicitors

23.01.12

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

The Family Reunification Process for Refugees

Each month, the Office of the Refugee Applications Commissioner publish a statistical report in respect of both the Asylum and Family Reunification Applications currently being assessed. On reviewing the report this month, we were struck by the statistics in respect of the Family Reunification application process. We learned that between January 2011 and the 31^st July 2011, ORAC has received 148 applications, including 258 dependants. This is an average of 21 applications a month. This is not an exceptionally large number of applications. Of these applications, most of the applicants are refugees from Somalia, Iraq, Afghanistan and Sudan. Each of these countries are, or have recently been, in serious conflict and each are to some degree suffering from large scale humanitarian crisises. From our experience working with clients from these countries,  many of the applications would be submitted respect of the refugee’s spouse and minor children, and thus would fall into the Non Discretionary category. This means that the Minister is obliged to grant the application on the basis that the Minister is satisfied that the subjects of the applications fit within the spouse/minor child category. It has long been accepted by the High Court that non discretionary applications should require far less investigation and processing time as compared with discretionary applications. 

Therefore, why then is the average processing time for Family Reunification applications approximately two years?

We regard all applications for Family Reunification to be urgent, and some extremely urgent.  We believe that it is completely unacceptable that a family member of a refugee who has an entitlement to travel to and reside in Ireland should wait in a refugee camp, sometimes in a famine zone, for an average of two years  before receiving the green light from the Department of Justice. The fact that many of the cases we work on involve applicants aged between 18 to 23 who came to the State as minor children and are now applying to be re united with their parents and siblings makes this delay nothing short of scandalous.

We appeal to the Department of Justice on behalf of our clients to expedite the current processing times for the Family Reunification process to a more reasonable period of no more than six months per application. 

 

Brophy Solicitors

1.9.11

Family Reunion applications: An update

UPDATE ON FAMILY REUNION APPLICATIONS

There has been a recent change to the form sent out by the Office of the Refugee Applications Commissioner (ORAC) to be completed by those applying for family reunion as a refugee.

The previous form was a reasonably short document requesting information regarding the family relationships and the circumstances of the family members. The form also required details of the refugee’s financial and accommodation situation in Ireland.

The new form now being sent out by ORAC is considerably longer. It requests specifics of any dependency between the refugee and the applicants. The form also requests relatively detailed information on the financial circumstances of the applicants, including how they are financially supported, whether they are working, and whether they are capable of supporting themselves financially.

What is particularly noticeable is the updated list of documents now requested by ORAC to support the application. Many of the new documents listed refer to minor applicants and required documents include for example evidence of schooling, evidence of legal guardianship, original death certificates if the minor child’s parents are deceased. The list stretches to 37 documents that may be requested in total as compared to the 10 documents previously requested on the old form.

In some respects the new form may be welcomed. We have often had clients complete the old form and then receive a letter from ORAC listing a huge number of further questions therefore delaying the processing of the application. However, we have ongoing concerns about the level of supporting documentation that the refugee and the applicant(s) are expected to provide to support the application. These documents are often simply unobtainable particularly for Somali clients and there is often little or no consideration given to reasonable explanations of why such documents may not be available to applicants.

We would highlight that any consideration in respect of dependency in such applications must take into account the recent decision of Mr Justice Hogan in the case of RX, QMA and CXN v Minister for Justice Equality and Law Reform, delivered on the 10^th December 2010.  Mr Justice Hogan emphasized that the word “dependency” within the meaning of Section 18 of the Refugee Act refers to dependency in fact - i.e. that dependency existed when the subjects of the family reunification application depended for financial survival on the remittances transmitted by the Applicant, even though she in turn was herself dependant on social welfare payments in this State. Mr Justice Hogan further emphasized that whether the Applicant could maintain the family members in Ireland on arrival is not the test that Section 18 (4) posits.

On a general note, a major ongoing concern for us in relation to family reunion cases are the extensive delays our clients experience in having the applications determined. We were recently instructed by a client who has been waiting since 2007 for his application to be determined, and since this time, his family members have become separated and one of them has disappeared. We are fortunate to have now been able to move this case along for the client but there has been no explanation or apology for the delay to date.

As always, we welcome any queries or comments you may have on this issue.

Brophy Solicitors, 03.08.11

Celebrating World Refugee Day & 60 years of the Refugee Convention

1951 REFUGEE CONVENTION: HAPPY 60TH BIRTHDAY! 

On Monday this week, Professor James Hathaway of the University of Michigan Law School gave an engaging and lively talk ‘Saving international refugee law’, hosted by the Irish Refugee Council and School of Law, Trinity College. The timing of the talk was particularly apt as this year marks the 60th anniversary of the UN Convention relating to the Status of Refugees.

Professor Hathaway set about challenging governments and advocates to move beyond some of the common misconceptions regarding refugee law and protection. He started with misconceptions around the place a so-called ‘real’ refugee seeks protection. The Refugee Convention, he argued, does not say that a ‘genuine’ refugee is obliged to seek asylum in the first place he lands. Decision makers on claims for refugee status often claim this when rejecting applications. Rather family and language ties should be accepted as good cause for claiming refugee status in a particular country and it should be the risks on return that must be at the core of the assessment of the claim. He asked, if we were forced to flee tomorrow, would we not try and go where we had some sort of connection? Professor Hathaway also rounded on the trend in developed countries towards criminalizing refugees who by necessity, break national immigration laws in order to access protection.

Professor Hathaway further tackled the issue of how long States are required to offer protection to refugees. He succinctly argued that there is no provision in the Refugee Convention that entitles refugees to a permanent right to reside in their country of asylum. In fact, Professor Hathaway said that to suggest refugees should have a permanent right to reside under the Refugee Convention is to confuse the issues: rights of residence are conferred under a State’s immigration system. The Refugee Convention requires protection or residence for the duration of risk, he argued.

What Professor Hathaway highlighted which was of particular interest in light of the recent Zambrano decision, are the sometimes overlapping rights that refugees may avail of: a refugee may enjoy the protection of the Refugee Convention, but may also accrue family rights that are protected by domestic provisions such as our Constitution and other law including the European Convention on Human Rights and EU Treaty Rights provisions. It may be under these other provisions that the refugee enjoys rights to permanent or long-term residence but this right does not stem from the Refugee Convention itself.

Professor Hathaway repeatedly critiqued the rhetoric of governments in the developed world, who argue for greater responsibility sharing with developing countries which host approximately 80% of the worlds’ refugees. He observed that this appears only to be rhetoric at present and there is no practical framework or mechanism that formalises such responsibility sharing at present.

Finally, in response to a question from Áine Ní Chonaill of Immigration Control Platform who advocated that Ireland should withdraw from the Refugee Convention, Professor Hathaway stated that remaining a signatory to the Refugee Convention is an ethical, moral decision on behalf of the State but more importantly it is a pragmatic choice. The Refugee Convention offers a framework and a controlling mechanism for processing requests for protection that do not fit within existing immigration systems.

In closing, Professor Hathaway reiterated that he believes the Refugee Convention is a brilliant document that provides protection to some 12 million individuals across the world, more than any other human rights treaty or law. Good reason to celebrate. Happy 60^th birthday!

Brophy Solicitors

16.06.11