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Column We have bypassed the opportunity to introduce a humane asylum process

Our Minister for Justice has bypassed the opportunity to introduce a humane and expedient way of processing asylum applications in favour of a new, unwieldy system which will lead only to further delays, writes Fiona Hurley.

THE IRISH ASYLUM system has come under sustained criticism in the past twelve months. Since December 2012, the legality of the way in which asylum and subsidiary protection applications are determined in Ireland has been undermined by the Irish High Court in the MM case which found that the Irish system did not meet the requirements of EU law.

The way in which Ireland treats its asylum-seeking community has drawn high-profile criticism from the former Ombudsman Emily O’Reilly, who had significant concerns about the direct provision system. Direct provision is the system by which the State provides accommodation and board to asylum seekers while they await the determination of their cases in the State. Minister Alan Shatter was himself a vocal opponent of the system while he was in opposition.

On an international level, the High Court of Northern Ireland recently granted an order to a Sudanese family of asylum seekers residing in Belfast, preventing their removal from Northern Ireland to the Republic of Ireland.

The court found that the best interests of the children in the case would not be served by removing them to Ireland due to the deficiencies of the Irish direct provision system. The judgement quoted from two Irish Supreme Court judgements which included serious reservations about the humanity of the system. The Irish High Court has granted leave to three families to challenge the system of direct provision in Ireland. The case is likely to be dealt with next year.

Lives in standstill

Against this backdrop of uncertainty and criticism, the Department of Justice suspended the processing of subsidiary protection applications until such time as revised procedures in compliance with EU requirements could be put in place. For hundreds of asylum seekers this meant that their lives came to a standstill for several months while changes were made to the Irish legislation.

NGOs and immigration practitioners viewed this as an opportunity for the Minister for Justice to finally introduce a ‘Single Procedure Mechanism’ which would allow for asylum seekers to have all their claims for protection heard concurrently, rather than engaging in a three-step structure whereby asylum seekers must wait for the determination of one application before being permitted to pursue the next application.

One very obvious fault with the three-step structure is that an asylum seeker who knows they do not fit the strict requirements of the legal definition of a refugee under Irish law but believes that they could well be considered a person eligible for subsidiary protection – a status with different legal requirements – could not apply for subsidiary protection until their application for refugee status was heard and refused – a process which could take months.

The single procedure mechanism

The single procedure mechanism has widespread approval from NGOs, private practitioners, human rights bodies and state officials and is the norm in all other EU States. The Immigration, Residence and Protection Bill 2010 proposed to reform the system by introducing the Single Procedure Mechanism, and State bodies such as the Office of the Refugee Applications Commissioner were prepared for the introduction of the Single Procedure Mechanism. The IRP Bill 2010 still has not been passed, and the Minister has indicated that a new bill will be introduced next year which is expected to contain the Single Procedure Mechanism.

In short, Irish institutions have been both expecting and gearing up for the Single Procedure Mechanism for the past several years. The MM case gave the Minister the ideal opportunity to introduce the Single Procedure Mechanism in advance of the Bill. This would have given the Minister the opportunity to separate out an already widely approved aspect of a mammoth piece of legislation and iron out any kinks before the introduction of the next IRP Bill.

A new – unwieldy – system

On the 13th November the Minister published the statutory instrument which put in place interim procedures to comply with our obligations under EU law. To refer to the statutory instrument, in its current form, as a ‘missed opportunity’ is an understatement. The Minister for Justice has bypassed the opportunity to introduce a humane and expedient way of processing applications in favour of a new unwieldy system which will lead only to further delays.

The new statutory instrument keeps the three part structure but adds additional processes. To comply with the MM judgement, applicants for subsidiary protection will be given the opportunity to have an oral interview and a right of appeal afterwards, which we welcome. However they will continue to have to wait until their application for refugee status and any appeals arising from this are heard before it is possible to get to this stage.

The already deplorable delays in the system can only be exacerbated by this new regime. For those with no choice but to live in direct provision, the concessions the Minister has made by providing an oral hearing and a right of appeal will be cold comfort. Justice delayed is justice denied.

Fiona Hurley is the Legal Information and Capacity-Building Officer at Nasc.

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