UNHCR REPORT ON EU ASYLUM SYSTEMS

The United Nations High Commissioner for Refugees (UNHCR) have recently published a report entitled "Beyond Proof, Credibility Assessment in EU Asylum Systems “ on the role of the credibility assessment in determining refugee status. The report focuses on the use of credibility within the Common European Asylum System (CEAS) and is another step towards the UNHCR’s goal of producing updated guidelines on the assessment of credibility of asylum claims.

The CEAS is designed to ensure that an applicant would, in principle, receive the same decision on his or her asylum application regardless of which EU Member State they made their application in. However because the credibility assessment is so often a key factor in determining refugee status, similar cases in different Member States often have different outcomes because the method of assessing credibility differs. For example certain decision makers in one member state may have more discretion or employ a different approach when assessing an applicant’s credibility. 

The UNHCR noted that there is a clear trend in the EU where negative decisions on asylum applications are made on credibility grounds without applying the relevant Qualification and Asylum Procedures Directive. It also noted that there was no common understanding and approach within the CEAS regarding the assessment of credibility and that there was therefore a pressing need for comprehensive and up-to-date guidance for decision makers on how to correctly assess an applicant’s credibility. 

This report does not constitute this guidance it merely seeks to identify and clarify key concepts surrounding credibility and to inform discussion and debate. However it does provide some guidance for decision makers in the form of checklists and flowcharts designed to illustrate how to take into account the various relevant factors (such as education, fear and the impact of trauma) when making a credibility assessment. These checklists emphasise the various duties and obligations of both decision maker and applicant during the course of the asylum application process. In its conclusions the report calls for a more consistent, transparent and principled approach to credibility assessments, based in law and on good practice. It notes the disparity between policy and practice in credibility assessments in member states and calls for enhanced training on credibility for decision makers in order to combat this and to achieve a consistent approach to credibility assessments throughout the CEAS.

The report is available via the following link: http://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=search&docid=519b1fb54&skip=0&query=credibility

Brophy Solicitors

HUMAN TRAFFICKING BILL

Earlier this month the Criminal Law (Human Trafficking) (Amendment) Bill 2013 was passed through both Houses of the Oireachtas. This Bill was designed to comply with EU Directive 2011/36/EU and criminalises trafficking for the purposes of forced begging and criminal activities. Trafficking for sexual exploitation, labour exploitation and the removal of organs has already been criminalised. The Bill also caters for child victims as it increases the maximum age at which video evidence may be admissible in court from 14 to 18. 

In a press release from the Department of Justice, Minister Alan Shatter said that human trafficking is an ‘appalling crime, a serious abuse of human rights and an affront to the dignity of a person.’ 

The Turn off the Red Light Campaign, a coalition of organisations which campaigns for the end of prostitution and trafficking in Ireland notes that 75% of cases involving human trafficking involve sexual exploitation. The campaign notes that while there were 37 investigations into trafficking for sexual exploitation over the past 16 months, this is probably only a fraction of the actual number of victims trafficked for these purposes. They propose that Ireland adopt a model similar to that of Sweden, where it is a criminal offence to buy sex. They believe that this will undermine demand for trafficking and prostitution, which will have a more direct impact on the €180 million per year sex trade industry.

The Immigrant Council of Ireland reports harrowing stories which detail the systemic abuse that is inflicted on victims of trafficking in Ireland. Deception is a common theme in these reports – many women and girls are encouraged to travel to Ireland to seek opportunities and are then forced into the sex trade upon arrival. The Council, which is a founding member of the Turn off the Red Light Campaign, calls for strong legal steps to be taken to ensure that Ireland is not a ‘soft target’ for traffickers. Ireland has previously been criticised by OSCE and the US Department of State for falling short in this area.

Although this Bill was necessary in order to bring Irish law in line with EU obligations, it may have a muted impact on the elimination of trafficking in Ireland, considering that the majority of reported cases don’t deal with forced begging and criminal activities. The Bill is welcome, but will probably not have the strong preventative effect on trafficking that anti-trafficking organisations believe is necessary. 

Katie O’Leary

Brophy Solicitors

Unlawful killing of deportee should be a warning to all States

Last week, an inquest jury in the UK returned a verdict of unlawful killing of Jimmy Mubenga, an Angolan national who died on board a plane at Heathrow airport in October 2010 while being deported from the UK to Angola. He died of positional asphyxia at the hands of G4S security guards, independently contracted by the UK Home Office to effect deportations. The inquest jury held that the G4S officers used unreasonable force when they held Mr Mubenga with his head down, restricting his breathing. Passengers heard Mr Mubenga calling for help and saying that he could not breathe. Passengers told the inquest that Mr Mubenga was crying out: "They're going to kill me." Mr Mubenga was pronounced dead on the plane a short time later. He had been in the UK for sixteen years and leaves a wife and five children.

This is a chilling and disturbing case on a number of levels. The high profile case shows up the dark side of deportation. It is a part of the immigration process we hear and read very little about. By its nature, it is difficult to get information about how deportation is effected and how deportees fare. I recall an Iranian client called me from Iran to tell me how he had been restrained, punched and beaten in the course of his deportation from the UK. Yet there was very little we could do to help him as he was outside of the UK and had no evidence to document what had happened to him.

In the UK, independent contractors such as G4S are brought in to effect deportations. Deportation is the most costly part of the immigration process for any State and sub-contracting its implementation is one way to reduce costs.

But questions are now being asked as to whether such sub-contracting might come at a higher cost. The G4S guards involved in the tragic deportation effort of Mr Mubenga failed to adhere to their own guidelines. Furthermore, the inquest found that the guards would have known that their actions were causing Mr Mubenga harm, even serious harm. During the hearing more sinister details emerged: two of the guards had a string of racist "jokes" on their phone containing what the coroner Karon Monaghan QC described as "very racially offensive material". All this reinforces the need for any necessary deportations to be effected in an appropriate, safe and transparent manner. The tragic case of Mr Mubenga shows that sub-contracting this difficult process out to a third party is not a safe option and can have devastating consequences.

A full briefing on the Mubenga case can be read here:
http://www.inquest.org.uk/pdf/briefings/INQUEST_briefing_Jimmy_Mubenga_updated_may_2013.pdf

 

Rebecca Keatinge
Brophy Solicitors

DIRECT PROVISION ACCOMMODATION IN IRELAND – A BREACH OF FUNDAMENTAL CONSTITUTIONAL RIGHTS AND VALUES

Writing in Jesuit Quarterly Studies this week, the Ombudsman Emily O’Reilly has heavily criticised the system of direct provision for asylum seekers. According to O’Reilly, the system is in breach of the Irish Constitution and international human rights law as there is a real risk of child abuse and a lack of protection of family rights. Delays in processing asylum applications result in some families living in direct provision centres for years. The Ombudsman argues that the centres are suitable only for very short periods of time and not for long-term residency.

Nearly 5,000 asylum seekers currently reside in direct provision centres and over 1,800 of those are children. Meals are prepared for the asylum seekers, meaning that they have no control over their diet, families are often required to share rooms with other families, leading to a lack of privacy, and each person receives a sum lower than €20 a week to live on, with children receiving less than €10 per week. The Ombudsman also notes that enforced idleness is common, as asylum seekers cannot work while there asylum status is under review. 

In her investigation into a complaint made by one family, O’Reilly found that they had been separated due to a failure on the part of the HSE to implement a Social Welfare decision. An African woman and her two daughters who came to Ireland to seek asylum were placed in a direct provision centre and lived there for fifteen months. The family left because of serious concerns over the mental health of one of the daughters, who had attempted to take her own life. Her mother felt that the conditions in the centre they were living in were having a negative impact on her child’s mental health and decided to leave the centre on this basis. The child was placed in foster care because the family had no income. Initially, the mother’s application to receive Social Welfare was rejected, but following a lengthy appeal process, she was eventually approved to receive payments. However, the decision was not implemented, which had adverse consequences for the family, who are still separated. The Ombudsman has criticised the lack of implementation of the decision in strong terms.

O’Reilly believes that the conditions described are in breach of Article 41.1.1 of the Constitution, which protects family rights and Article42A.1, which was inserted as a result of last year’s referendum to protect children’s rights. In her article, the Ombudsman notes that while there are some contradictory Supreme Court rulings, there is general consensus that the natural rights provisions of the Constitution apply to all people in the state and not only to Irish citizens. 

Regarding international human rights, FLAC has commented that ‘the direct provision system does not provide an environment conducive to the enjoyment or fulfilment of the most basic human rights, including the rights to health, food, housing and family life. It also has negative repercussions on the right to education and the right to work as well as to freedom of expression, freedom of movement and freedom of association.’ Ireland is party to a number of international human rights conventions, including the European Convention on Human Rights and the International Convention on the Rights of the Child, and therefore is required by law to respect the rights of all people as listed by FLAC.

At Brophy’s, we have encountered appalling reports from clients living in such accommodation. We welcome the Ombudsman’s review and call for the Minister to take immediate action to review the living conditions in Direct Provision centres around Ireland. 

Katie O’Leary

Brophy Solicitors

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

4th Annual European Commission Report on Immigration and Asylum

We took some time out this week to review current trends in immigration law amongst the Member States. The European Commission Report confirmed useful statistics and gave us food for thought. The report analyses immigration patterns in Europe and discusses the implementation of the Common European Asylum System. According to the report, there has been a 10% increase in asylum applicants compared to 2011. This increase is partly due to the conflict in Syria, which has displaced huge numbers of Syrian nationals. We have noticed an increase in queries from Syrian nationals who are normally seeking information on family reunification with family members living in Ireland. The report also notes that there are almost twice as many third-country nationals living in the EU compared to the number of EU citizens who live in another member state. Last year, over 300,000 people were refused entry to the EU. 

EU policy on immigration and asylum focusses on a few main areas. These areas include attracting talent from third countries to the EU, efforts to adopt a harmonised, pan-European asylum system and the eradication of human trafficking.

Measures implemented to attract highly qualified professionals to the EU include the adoption of the EU Blue Card Directive, which took effect in 2009. This measure will be reviewed later this year. According to a Commission Communication from 2012, a smarter visa policy could contribute to economic growth. This would speed-up, facilitate and reinforce border check procedures for foreigners travelling to the EU.

The report laments increasing incidents of xenophobic violence, noting that integration of immigrants is essential to the success of policies to attract highly qualified employees into the EU workforce. The report also note that young people with an immigration background are significantly more likely to become ‘not in employment, education or training’ in comparison with their contemporaries. It is also argued that family reunification plays a part in promoting integration. 

According to the report, a Common European Asylum System will lead to fairer, quicker and better quality asylum decisions and special needs of vulnerable people will be better taken into account. This will involve greater protection of unaccompanied minors and victims of torture. The measures are aimed at ensuring fundamental rights of asylum seekers are protected, especially the principle of non-refoulement. 

The European Asylum Support Office, along with the Commission, works to tackle the biggest obstacles to solidarity. These obstacles include the Greek National Action Plan on Asylum and Migration, increasing numbers of Syrian refugees seeking asylum in Europe and the relocation of beneficiaries of international protection within the EU. 

The report also looks at the measures being taken to eradicate human trafficking from third countries. The report notes that victims from outside the EU mainly come from Nigeria and China. The Commission launched the EU Strategy towards the Eradication of Trafficking in Human Beings in 2012. 

With regards to tackling irregular immigration, the report notes that bodies are working to tackle this at pressure points, including the Greece-Turkey border. Efforts are also under way to implement a common returns policy for irregular immigrants.

Brophy Solicitors

MUSLIM MARRIAGE RECOGNITION IN IRELAND

The media is currently filled with discussion of marriage rights and recognition, not least because of the historic US Supreme Court ruling yesterday on the Defence of Marriage Act in California. Marriage is something that is deeply ingrained in religion and culture and marriage practices vary around the world. In Ireland, the struggle for marital recognition is not confined to the LGBT community. In Muslim societies, culture, tradition, customs and formalities are often very different to what Ireland is used to or accept as forming what we recognise to be a valid marriage. This poses a number of difficulties for couples who now live in Ireland and whose marriages or divorces were carried out under a different set of rules. 

Legal recognition in Ireland of Islamic marriage practices can have far-reaching consequences for family reunification in immigration law. Examples of the practices that prove problematic in Irish law include polygamous marriages and Muslim divorce. In some Islamic countries it is permissible for a man to have multiple wives or to obtain a unilateral divorce without governmental or judicial involvement. 

Academics have noted three stages to the recognition of foreign marriages in Ireland. The first of these is capacity to marry, and a person lacks capacity to marry if they have a prior marriage that is still valid. The second required element is that the marriage was legal in the jurisdiction where it was celebrated. Thirdly, the marriage must not be unrecognisable from the Irish idea of marriage. 

In the case of H v A it was held that the polygamous marriage of a Lebanese man in his native country couldn’t be recognised under Irish law. However, if a marriage is potentially polygamous but monogamous in practice then the marriage can be recognised in Ireland. In Hamza v Minister for Justice Equality and Law Reform it was held that a couple who were married under a law that allowed polygamy but weren’t parties to a polygamous marriage could have their marriage recognised. 

However, the law on polygamy is not without anomaly. As counsel for the respondent pointed out in H v A, if a man is married to more than one woman in his home country, the courts will deem that those marriages are null and void. However, if a man marries one woman in his home country and then marries another woman in Ireland then the latter marriage will be held to be void. 

The courts have not yet adjudicated on whether a talaq, a unilateral divorce obtained in an Islamic country, will be recognised under the Domicile and Recognition of Foreign Divorces Act 1986. S5 (7) of that Act refers to the necessity for certain proceedings for a divorce to be valid but it remains to be seen whether the procedure for obtaining a talaq will meet these requirements, as the divorce is obtained unilaterally without the involvement of state agencies.

Both of these situations have an impact for family reunification in immigration law. In Irish law, a person who has successfully sought asylum can apply for a visa for their spouse to live in Ireland. If Irish law does not recognise the validity of their marriage, this will clearly thwart the application process. For these purposes it seems clear that a polygamous marriage will not be allowed, whereas a potentially polygamous one will be. More clarity on the status of Islamic divorce would be welcome, as some clients of Brophy Solicitors are left in a state of uncertainty about whether their second marriage will be recognised as valid for the purposes of reunification. We are receiving more and more requests to appeal visa refusal decisions where applicants have been refused permission to join their Irish/lawfully resident spouse based on the fact that their marriage is not a valid marriage. This includes cases where the applicant and their spouse have children together.

Brophy Solicitors