The Irish asylum system is in need of radical reform

Human Rights in Ireland welcomes this guest post from Dr Ciara Smyth. Ciara is a lecturer in the School of Law, NUI Galway and a member of the board of the Irish Refugee Council.  The opinions expressed here are personal.
There have been four damning indictments of the Irish asylum system in as many months.
The first was a report by the Irish Refugee Council on the lives of asylum-seeking children in direct provision.  Direct provision is the system of accommodation and subsistence provided to asylum seekers.  Owing to delays in the asylum process, asylum seekers can live in direct provision for many years, or an entire childhood in the case of some children.

Accommodation ranges from hostels to mobile homes.  Conditions are often overcrowded with family members sharing a room or a couple of rooms, little space for recreation and little or no facilities for children.  Asylum seekers are generally not allowed to cook for themselves but are provided with their meals by the private service providers who are contracted to run the hostels.  The meals are frequently lacking in basic nutritional content.
Asylum seekers are forced to spend their meagre allowances – €19.10 a week for adults and €9.60 for children, a rate that has not changed since it was introduced over 12 years ago – on supplementing their diet.  There is little left over for any kind of social activity and, not being allowed to work, asylum seekers are effectively cut off from mainstream Irish society.  Although asylum-seeking children do attend school, which offers some possibilities for integration, their complete lack of disposable income prevents them from participating in the broader social life of the local community.
Earlier this year the European Court of Human Rights found that the conditions in which an asylum-seeking family with small children were detained constituted a violation by France of Articles 3 and 8 of the European Convention on Human Rights relating, respectively, to the prohibition of inhuman or degrading treatment and the right to family life.  The family were held in a ‘family zone’ of a detention centre with no facilities for leisure, no children’s furniture and few toys, and no access to the open-air.  Announcements were made over a tannoy and the general atmosphere was described as anguished and stressed.
Of course, asylum seekers in direct provision in Ireland are not in detention.  But otherwise the parallels are striking.
Shortly after publishing its report on asylum-seeking children in direct provision, the Irish Refugee Council published another, equally damning report on the decision-making processes by which the Irish asylum institutions evaluate whether an asylum seeker should be declared to be a refugee.  Prompted by the strikingly low recognition rate in Ireland and overcoming the hurdle that in Ireland asylum decisions are not publicly available, the Irish Refugee Council used its own network of lawyers to access files.
It found that there is a culture of disbelief in the Irish asylum institutions at both first instance and on appeal.  A number of examples in the report illustrate this.
Asylum seekers who do not provide any documentary evidence of their claim are often rejected on that basis, while asylum seekers who do provide documentary evidence of their claim often have that evidence rejected on the basis that it comes from another jurisdiction and is not verifiable.
Asylum seekers are regularly questioned at length about their travel – something many are forced to lie about because they have been smuggled or even trafficked into the country and risk reprisals from the smugglers or traffickers if they disclose the truth.  However, when it comes to the ‘core’ of their claim, namely, the reasons they cannot go back to their own country, their lack of credibility on travel is used to impute a general lack of credibility and their claim is rejected.
Asylum seekers whose claims disclose allegations of sexual violence have been rejected on the basis that their late disclosure (e.g. on appeal rather than at first instance) or their cold demeanour are at odds with how the decision-maker would expect a victim of sexual violence to behave, even though it is well established these are typical psychological responses to sexual trauma.
The third indictment of the Irish asylum system came in the form of the recent Supreme Court decision in the Okunade case.  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 ‘extremely complicated’ and ‘cumbersome’ asylum procedure was to blame for the length of time the family had been in Ireland.
Indeed, Ireland is the only EU country not to have a single asylum and subsidiary protection procedure.  Subsidiary protection is a type of international protection for people who do not meet the strict definitional requirements of a refugee but who nevertheless face a real risk of serious harm if returned to their own country.  In Ireland, uniquely, applicants must first apply forasylum – a process that can take years – and only after receiving a definitive rejection of their asylum claim can they claimsubsidiary protection.
The final indictment of the Irish asylum system came last week when the Court of Justice of the EU held in M.M that Ireland’s system of subsidiary protection does not comply with a fundamental principle of EU law, namely, the right to be heard.  Applicants for subsidiary protection make a paper application to the minister who takes a decision on the basis of that application and the asylum file.  As the applicant enjoys the right to be heard in the asylum procedure, the government’s argument is that there is no need to hear the applicant again in the subsidiary protection procedure.  This argument was firmly rejected by the Court of Justice which noted that, as Ireland has established two separate procedures for dealing with asylum and subsidiary protection, an applicant has a right to be heard in the context of both procedures.
As is evident from these four indictments of the Irish asylum system, the entire system is in need of a radical overhaul.  The abandoned Immigration, Residence and Protection Bill 2010, which may be reintroduced in the New Year, provides for some reforms such as a single protection procedure.  However, it does little to ensure the quality of asylum decisions at first instance or on appeal and does not address the system of direct provision.
In the current economic climate there is little political impetus to address the plight of asylum seekers in Ireland.  Nevertheless, even in an Ireland in which the ranks of the marginalised are swelling, asylum seekers constitute a most unfortunate and neglected group.
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