IRELAND: Groups claim Immigration Bill breaches Constitution and Ireland’s International Human Rights Obligations
Press Release: Wednesday, 13 February 2008
Five organisations today joined forces to highlight potential breaches of constitutional and international human rights obligations contained in the Immigration, Residence and Protection (IRP) Bill, 2008.
The five organisations – Immigrant Council of Ireland, Integrating Ireland, Irish Refugee Council, Migrant Rights Centre of Ireland and Refugee Information Service – are calling on the Minister for Justice, Brian Lenihan TD, to amend the IRP Bill to address these potential breaches ahead of the Dáil debate on Bill which commenced Thursday, 14 February.
Speaking at a press conference in the Alexander Hotel, Dublin, Hilkka Becker, Senior Solicitor, Immigrant Council of Ireland, outlined concerns in relation to the immigration provisions in the Bill, based on a detailed legal analysis of the Bill which has just been completed:
Summary Deportation
“Provisions in the Bill for summary deportations may result in vulnerable people, who have become undocumented through reasons beyond their control, being deported before they can regularise their situation. This provision if enacted would lead to breaches of fair procedure – a right recognised under the Irish Constitution. It also has the potential to violate several rights under the European Convention on Human Rights and Fundamental Freedoms (ECHR).
Access to Justice
“Failure to provide for an independent appeals mechanism for immigration decisions will deny migrants the opportunity to challenge decisions affecting their human rights as protected under the ECHR. Furthermore, there is a real potential that the High Court’s restricted ability to extend time in judicial review proceedings, beyond the 14 days migrants have to initiate proceedings against immigration decisions, may also be unconstitutional.
Right to Marry
“New restrictions banning some migrants from marrying in Ireland represent breaches of the right to marry under the Constitution and the ECHR, while provisions allowing the Minister to make exemptions from these prohibitions also raise constitutional issues.
Family Reunification
“The Bill doesn’t provide a clear entitlement for Irish citizens and legal residents to be joined by immediate family members, including spouses or partners and minor children. We’re concerned that the Bill’s failure to provide for family reunification may lead to breaches of Article 8 of the ECHR, which sets out a right to private and family life,” Hilkka Becker concluded.
Dr Siobhán Mullally, Co-Director of the Centre for Criminal Justice and Human Rights, UCC, and Chair of the Irish Refugee Council, outlined concerns in relation to protection issues:
Detention
“The Bill, as it stands, permits the arrest and detention of protection applicants in eight enumerated circumstances. This may be in breach of the ECHR and the International Covenant on Civil and Political Rights (ICCPR). Furthermore, the Bill does not contain sufficient safeguards against arbitrary arrest, which may be contrary to the ECHR which provides that persons must be informed of the reasons for their detention promptly and in a language they understand.
Family Reunification
“The provisions for family reunification for refugees and persons granted subsidiary protection may not fully comply with the State’s obligations under the Convention on the Rights of the Child, which provides that applications by children or their parents to enter or leave a state for family reunification must be dealt with in a ‘positive, humane and expeditious manner’.
Carrier Liability
“The carrier liability provisions in the Bill improperly shifts the responsibility for protection decisions from the State to carriers. This means that airlines and other carriers may prevent refugees from travelling to Ireland and this is incompatible with the spirit of the 1951 Convention Relating to the Status of Refugees,” Dr Siobhán Mullally concluded.
FOR FURTHER INFORMATION, PLEASE CONTACT:
Elaine Ryan/ Laura Wipfler at Montague Communications
Telephone: 01- 830 3116 Mobile: 087 295 1096/ 087 6252217
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Notes to the editor
Detailed Potential Breaches of Constitutional and Human Rights Law
Summary deportations
Section 4 (8) of the Bill, which introduces summary deportation, would lead to breaches of fair procedures – an unenumerated right recognised under the Irish Constitution.
This provision, if enacted, has the potential to violate the right to private and family life as protected by Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and with that would be in breach of Article 13 (Right to an effective remedy) of the Convention and possibly Article 1 of Protocol No. 7 to the ECHR, which contains procedural safeguards relating to the expulsion of foreign nationals.
Restriction of the right to marry
Section 123 (2)(b) of the Bill, which prohibits the marriage of certain foreign nationals in the State, even where they wish to marry an Irish or EU national, is likely to be found an unconstitutional breach of the right to marry in Article 41.3.1 as well as contrary to Article 12 (Right to marry) of the ECHR.
Section 123 (3) of the Bill, which relates to possible exemptions from the prohibition to marry in Ireland, is plainly unconstitutional in that it breaches the equality clause in Article 40.1 of the Constitution (in connection with Article 15.2.1 of the Constitution which provides that the Oireachtas has the sole and exclusive power to make law).
Limitation of access to justice for migrants
Section 118 (8) of the Bill, which would introduce the possibility of the High Court awarding costs against migrants’ legal representatives, but not against the State’s legal representatives, is unconstitutional on the ground that it offends the equality guarantee in Article 40.1 of the Constitution and the principle of equality of arms guaranteed in Article 6 (Right to a fair trial) of the ECHR.
There is a real question whether the restriction of the High Court’s ability to extend time in judicial review proceedings beyond the 14 days migrants have within which to initiate judicial review proceedings against immigration decisions, contained in Section 118 (3) of the Bill, may also be unconstitutional.
Failure to provide for an independent appeals mechanism for immigration decisions, as promised in the Programme for Government, will deny migrants the opportunity to challenge decisions affecting their, and their families’, human rights, as protected under the European Convention on Human Rights and Fundamental Freedoms, in particular Articles 3 (Prohibition of torture) and Article 8 (Right to respect for private and family life), and lead to breaches Article 6 (Right to a fair trial) and Article 13 (Right to an effective remedy) of the Convention.
Failure to protect victims of trafficking
Provisions in Section 124 of the Bill, relating to protection for victims of trafficking, fall far short of Ireland’s obligations under the Council of Europe Convention on Actions to Combat Human Trafficking:
- Most significantly, the protective measures contained in the legislation would not apply to EEA citizens who have established their free movement rights and with that would generally exclude people who have been trafficked into Ireland from within the EEA from protection.
- Another major concern is the absence of provisions detailing the types of assistance which would be made available to people who have been identified as victims.
- Additionally, temporary residence permits for victims would be issued only if linked to the victim assisting a prosecution and does not take into account circumstances where the victim may be too traumatised to take part in prosecutions, or where the State decides not to proceed with prosecutions.
Detention
Section 70 of the Bill which provides for the detention of a person who has made a protection application at the frontier and in whose case it is not ‘practicable’ for an immigration officer to a protection application entry permit and Section 71 of the Bill which permits the arrest and detention of protection applicants in 8 enumerated circumstances may be in breach of Article 5 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and Article 9 of the International Covenant on Civil and Political Rights (ICCPR).. Article 5 provides for detention in an immigration context only for the purposes of preventing an unauthorised entry into a country or where action is being taken in relation to deportation or extradition. The Bill does not contain sufficient safeguards against arbitrary arrest, which may be contrary to Article 5(1) of the ECHR. The European Court of Human Rights held in Amuur v France that where deprivation of liberty is authorised in national law, that law must be ‘sufficiently accessible and precise in order to avoid all risk of arbitrariness’. In addition the Bill does not comply with Article 5(2) ECHR which provides that persons must be informed promptly and in a language they understand of the reasons for their detention.
Refoulement
Section 54 of the Bill, which provides that if it ‘appears’ to a member of the Garda or an immigration officer that a foreign national is unlawfully in the state, the person may be removed. It goes on to provide that the person may be removed to a country other than his/her country of origin. The Bill fails to provide sufficient safeguards l to ensure that the person will not face either persecution in the country he/she is returned to or be at risk of further removal to a state where s/he could face persecution (chain-refoulement). Return in such circumstances may lead to violations of Article 33(1) of the 1951 Refugee Convention, Article 3 of the Convention Against Torture, article 7 of the International Covenant on Civil and Political Rights and Article 3the European Convention on Human Rights (the latter has been incorporated into Irish law). Sections 102 and 103 providing for ‘safe countries of origin’ and ‘safe third countries’ respectively may also place applicants at risk of being returned contrary to Ireland’s non-refoulement obligations.
Carrier Liability
Section 28 of the Bill places onerous obligations on carriers which may result in persons seeking protection from accessing the State. Carrier liability shifts the responsibility of the State onto carriers. It is an offence for a carrier not to take all reasonable steps to ensure that each passenger has a valid passport or other equivalent document and, where required, a valid visa. Carrier liability means that airlines and other carriers will prevent refugees from travelling to Ireland and therefore is incompatible with the spirit of Articles 31 and 33 of the 1951 Convention Relating to the Status of Refugees. Sections 28(3) (e) and (f) of the Bill obliges a carrier to detain a person on board at the request of an immigration officer until that person is examined or landed for examination potentially engages the right to life under Article 2 of the ECHR, the right to be free from inhuman and degrading treatment under Article 3, the right to private life under Article 8 and the right to liberty under Article 5. Moreover, the treatment of persons being removed from the State by private carriers engages the same rights
Family Reunification
Section 50 of the Bill providing for family reunification for refugees and persons granted subsidiary protection may not fully comply with the State’s obligations under the Convention on the Rights of the Child, particularly Article 10(1) which provides that applications by children or their parents to enter or leave a state for family reunification must be dealt with in a ‘positive, humane and expeditious manner’. The Bill fails to provide any guarantees in respect of children and does not permit minor applicants to apply for family reunification for siblings. The current lengthy delays in processing time may violate applicants’ constitutional rights and their rights under Article 8 of the ECHR guaranteeing the right to private and family life. The Bill fails to make any provisions for decision making in family reunification cases.