Friday, November 30, 2012

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 22nd 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 

Monday, November 26, 2012

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


Immigration registration fee increased without warning


This week, the fee required for non EU people who are legal residents in the state to register with the authorities has increased from €150 per person to €300 per person. 

Thousands of immigrants who currently live in Ireland, including international students will be affected.


The Immigrant Council of Ireland have criticized this sudden hike in registration costs saying that: 

“The manner in which the new €300 fee was announced flies in the face of Government commitments to bring in a modern, streamlined and transparent Immigration System and in some cases will see families being forced to pay hundreds of euro more, even before the budget.”

Denise Charlton, Chief Executive of the Immigrant Council of Ireland said:

“The Government is quick to highlight and publicise the progress which has been made on citizenship, visas and in reducing bureaucracy, but this increase which will hit families hard, has effectively been announced by stealth. 

Individuals and families who are legally resident here are being asked out of the blue to dig deeper than ever before.”

Irish registration fees are now amongst the highest in Europe, in Belgium the fee is generally no more than €50, in Italy it is just over €100, with a similar charge in Austria.

http://www.immigrantcouncil.ie/media/press-releases/608-100-overnight-jump-in-immigration-fee-completely-unjust-sudden-announcement-comes-without-notice-or-consultation

Brophy Solicitors
26.11.12

Friday, November 23, 2012

Hungarian Passports for Sale!


The Hungarian government are planning to sell special residency bonds to help pay off the country’s debt.

Hungary has billions of euros worth of foreign currency debt, equivalent to 78% of its annual economic output, with the country’s debt being the highest in Central and Eastern Europe, according to Moody's Investors Service.

The Initiative  aimed  at Chinese investors, would involve spending €250,000  to  the indebted  country in exchange for preferential immigration treatment.

It has been indicated by politicians that  foreign  investors would receive residency and ultimately citizenship.

The concern for other EU countries is that a Hungarian passport  comes with the entitlement to live and work across the EU.


http://www.telegraph.co.uk/finance/financialcrisis/9644190/Hungary-plans-to-offer-passports-to-investors-buying-its-debt.html

Brophy Solicitors
23.11.12