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Judgments of the Superior Courts and the Immigration, Residence and Protection Bill 2008
The Superior Courts have clarified important aspects of Irish immigration and refugee law in a series of key decisions over the past few years. These key decisions deal with, inter alia, the right of asylum applicants to previous refugee status decisions; the powers of the Chairman of the Tribunal; the right of asylum applicant children to make their own asylum applications; rights and obligations in cases of removal and transfer, including the Minister’s obligation to consider private and family rights when making or enforcing a deportation order; and the law relating to judicial review of immigration and asylum decisions. The Immigration, Residence and Protection Bill 2008 contains provisions dealing with each of these points. It is instructive to compare the Courts’ judgments with these proposed provisions.
Access to Previous Decisions
Until the decision in PAA v The Refugee Appeals Tribunal [2007] 4 IR 94, the Refugee Appeals Tribunal refused to furnish asylum applicants with any of its previous decisions on the basis, inter alia, that there was no such requirement for it to do so under Section 19(4A) of the Refugee Act 1996. That statutory provision states that the chairperson of the Tribunal may, at his or her discretion, decide not to publish a decision of the Tribunal which in his or her opinion is not of legal importance. The applicants in PAA claimed they had a constitutional right to access previous decisions. The Supreme Court held that the Tribunal was under a duty as a matter of constitutional fair procedures to allow appellants reasonable access to relevant previous decisions. As a consequence the Tribunal currently allows appellants’ legal representatives limited access to a database of previous decisions.
The proposed legislative scheme does not provide access to a database of previous decisions. Instead, under Section 95(2)(b) & (c) the Tribunal Chairperson would grant access only where the s/he considers the request reasonable, and that there exists a legally relevant decision. Where there is more than one legally-relevant decision, and the chairperson is of the opinion that a representative sample of the decisions would serve the requirements of fairness, the making available of such a sample would comply be sufficient (Section 95(3)). The Chairperson could also refuse an application for legally relevant decisions where s/he is satisfied that the request is frivolous or vexatious. Also, an applicant’s legal representative would be required to bring to the Tribunal’s attention any decisions of which the representative is aware that may tend not to support the appeal (Section 95(7)). There is also an obligation on the legal representative to use the decision given only in support of the applicant’s appeal (Section 95(8)(b)(i)). Any other use of a decision would constitute an offence.[1]
Powers of the Tribunal Chairman
In GE & Ors v The Refugee Appeals Tribunal & Ors [2006] 2 IR 11, the Supreme Court clarified the extent of the Refugee Appeal Tribunal Chairman’s power in reassigning cases, and held that where circumstances warrant the reassigning of an appeal, the Chairman may reassign the appeal, so long as he acts fairly and respects the principles of natural and Constitutional justice. Under Section 93 of the proposed legislative scheme, the Chairperson of the Tribunal would have the power to assign and reassign the business of the Tribunal from one member to another, and also to request a Tribunal member to review his or her draft decision where it appears to the Chairperson that the decision might contain an error of law or fact. Moreover, under Section 93(9) of the Bill, the Chairperson would have the power to refer, on notice to an applicant, any final decision of the Tribunal to the High Court for that Court’s direction. Section 93(18) proposes that the chairperson would be responsible for the conduct of the Tribunal’s functions in relation to any proceedings relating to the transaction of the business of the Tribunal.
Minors’ Right to Individual Asylum Assessment
In AN & Ors v The Minister for Justice & Anor, Unreported, 18th October 2007, the Supreme Court held that Section 3(2)(f) of the Immigration Act 1999 could not apply to children where there is no asylum application on their behalf, and that where an application by a parent of a minor is unsuccessful, the child is entitled to apply for asylum based on his own circumstances, while where a child’s parents are successful in an application for asylum, the child should benefit by virtue of the principle of family unity.
Section 73(13) of the Immigration, Residence and Protection Bill 2008 proposes that a protection application would be deemed to be made on behalf of all the dependents of a foreign national under eighteen years of age, whether they are present in the State at the time of the application or are born or arrive in the State subsequently.
Age Assessment
In her judgment in AM v The Refugee Applications Commissioner [2006] 2 IR 476, Finlay-Geoghegan J held that the minimum procedural requirements for age assessment of minors in the asylum process: must include (a) that an applicant is told in simple terms the purpose of the interview, (b) that an applicant is told in simple terms why the interviewer considers his or her claim is false, and is given an opportunity to deal with the matter; (c) that an applicant is told of any reservations held by the interviewer re identity documents and is given an opportunity to deal with the matter; (d) that an applicant is clearly and promptly informed of any adverse decision and its reasons; and (e) that the possibility and procedure of reassessment is communicated both orally and in writing.
Section 24(7) of the Immigration, Residence and Protection Bill 2008 states only that if and for so long as it appears to an immigration officer that a foreign national is eighteen years of age or over, the relevant provisions of the Bill shall apply to the foreign national as if he or she were eighteen years of age or over. Section 73(6) of the Bill provides that where it appears to an immigration officer that an applicant for protection is under the age of eighteen years, the officer shall notify the Health Service Executive of this, and relevant legal provisions relating to the care and welfare of persons under the age of eighteen years of age will apply in relation to the foreign national.
Deportation & Transfer
Judgments of the Superior Courts have clarified important rights and obligations that arise in the deportation of illegal immigrants and failed asylum seekers, and the transfer of asylum applicants to other “Dublin Regulation” States:
(a) In Adebayo and Ors v Commissioner of An Garda Siochana [2006] 2 IR 298, a case involving applicants for judicial review who challenged the Minister’s decisions to deport them during the fourteen days subsequent to the issue of the deportation orders, notwithstanding that they had sought judicial review of their deportation orders, the Supreme Court held, inter alia, that deportation may not be implemented during the fourteen day period pursuant to Section 5 of the Illegal Immigrants (Trafficking) Act 2000.
(b) In EM v The Minister for Justice, Equality and Law Reform, Unreported, 15th November 2005, Finlay-Geoghegan J held that the Minister for Justice, Equality and Law Reform has discretion not to implement a transfer order made under regulation 7(1) of the Refugee Act 1996 (Section 22) Order 2003. The Court held that the Minister is obliged, as a matter of fair procedures, to determine an applicant's request not to implement a transfer order, and is obliged to uphold an applicant's right to life as guaranteed by the Constitution. Accordingly, the Court held that the Minister has an implicit power not to implement a transfer order where the protection of the life of an applicant is at issue
(c) In PL&B v Minister for Justice, Equality and Law Reform [2001] 9 ICLMD, the Supreme Court held, inter alia, that failed asylum seekers are entitled to reasons for deportation upon being refused refugee status.
(d) In Dimbo v Minister for Justice, Equality and Law Reform and Oguekwe v Minister for Justice, Equality and Law Reform, both unreported, 1st May 2008, the Supreme Court held that in making decisions whether to deport a parent of an Irish child, the Minister for Justice, Equality and Law Reform must consider the facts relevant to the personal rights of the citizen child protected by the Constitution, if necessary by due enquiry in a fair and proper manner, identify a substantial reason which requires the deportation of a foreign national parent of an Irish born child, and make a reasonable and proportionate decision.
Section 4 of the Immigration, Residence and Protection Bill 2008 allows for a foreign national, including failed asylum seekers, to be summarily deported without notice. Section 118(9) of the Immigration, Residence and Protection Bill 2008 proposes that an application by a foreign national for leave to apply for judicial review of a transfer or removal shall not of itself suspend or prevent his or her transfer or removal from the State. It is unclear how the Courts’ principles in EM, Adebayo, PL&B, Dimbo, and Oguekwe will apply in light of these significant legislative departures.
Extending Time for Judicial Review
Section 5 of the Illegal Immigrants (Trafficking) Act 2000 stipulates that judicial review of certain decisions in the immigration and asylum processes must be made within fourteen days of the date of the notification of the impugned decision, and that such time is extendable by the High Court only where it is satisfied that there is good and sufficient reason to extend time. Several judgments of the Superior Courts deal with this issue:
In B v Governor of the Training Unit Glengariff Parade, Unreported, 5th March 2002, the Supreme Court held that a refusal by the High Court of an extension of time can be appealed to the Supreme Court without leave of the High Court.
In GK v Minister for Justice, Equality and Law Reform [2002] 1 ILRM 401, the Supreme Court held that the time limits for the institution of judicial review proceedings can only be extended where the High Court considers that there is good and sufficient reason for extending the period, and where the substantive claim is arguable.
In Saalim v Minister for Justice, Equality and Law Reform [2002] 6 ICLMD106, the Supreme Court held that factors relevant to extending time for leave to apply for judicial review include (i) whether the applicant had an arguable case, (ii) the extent of the delay, (iii) whether there is a transition in the law, (iv) whether the legal advisors are largely culpable, and (v) whether the State is prejudiced by the delay.
In C.S. (A Minor) v Minister for Justice, Equality and Law Reform [2005] 1 IR 343, [2004] IESC 44, the Supreme Court held that when considering whether there is good and sufficient reason to extend time limits for judicial review the Court should consider the merits of the substantive case, and not simply the merits of the application to extend time.
Under Section 118(5), the Immigration, Residence and Protection Bill 2008 would require the leave of the High Court to appeal a refusal to extend time in which to bring judicial review. Section 118(3) of the Bill stipulates that the High Court may not extend the period in which an applicant can bring judicial review unless satisfied that:
(a) each of the following conditions is fulfilled:
(i) the applicant—
(I) did not become aware until after that period’s expiration of the material facts on which the grounds for his or her application are based, or
(II) became aware of those facts before that period’s expiration but only after such number of days of that period had elapsed as would have made it not reasonably practicable for the applicant to have made his or her application for leave before that period’s expiration;
(ii) the applicant, with reasonable diligence, could not have become aware of those facts until after the expiration of that period, or, as the case may be, that number of days had elapsed;
(iii) his or her application for leave was made as soon as was reasonably practicable after the applicant became aware of those facts; or
(b) that there are other exceptional circumstances relating to the applicant and under which, through no fault of the applicant, his or her application could not have been made within that period.
These provisions would seem to set at nought much if not all of the principles in B, GK, Saalim, and CS.
Conclusion
In a series of key decisions in recent years, the Superior Courts have clarified important aspects of Irish immigration and refugee law. The Immigration Residence and Protection Bill 2008 sets out a single legislative framework for the management of immigration and protection in the State. Rather than codify the current law, the proposed legislation appears to propose provisions that will circumvent key jurisprudence.
John Stanley BL
[1] Section 95(9). A legal representative guilty of an offence is liable, on summary conviction, to pay a fine not exceeding €5,000 or to imprisonment for a term not exceeding twelve months, or both or, on conviction on indictment, to a fine not exceeding €500,000 or to imprisonment for a term exceeding five years or both (Section 119(1)).
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