Decision to appeal protection case indicates that Ireland is not being realistic over need for asylum reform says Irish Refugee Council

Posted On: March 7, 2013

The Irish Refugee Council has criticised a decision by the State to appeal a recent judgment of the High Court on the procedure required to decide if someone is at risk of serious harm if returned to their country. The decision could mean a delay of at least nine months and up to four and a half years for people applying for subsidiary protection under the EU Directive, during which they will not be allowed to work and will be kept in State-funded Direct Provision accommodation.

Sue Conlan, CEO of the Irish Refugee Council, says: “This decision shows that Ireland is still not being realistic about the problems with the Irish asylum system.  It has once again highlighted the need for a radical reform of our broken asylum system, but equally it reinforces the fact that there are over 4000 people currently in the asylum system that will not be affected by new legislation.

“The Minister for Justice needs to take measures to address their protection claims in an effective and prompt manner, so that people can move on with their lives, whether in Ireland or elsewhere.  The decision to appeal condemns people in the process to further years in limbo.”

The appeal is to the judgment in M.M v Minister for Justice handed down by the High Court, which revealed that the manner in which Subsidiary Protection applications are decided may be in contravention of a fundamental principle of EU law, the right to be heard. This broad principle, which is also contained in the Charter of Fundamental Rights of the European Union, includes the right to fair legal process in all judicial proceedings.  This is absent in the Irish system because Subsidiary Protection applications have been treated as part of the asylum process and applicants have therefore been denied the opportunity of a fair hearing if refused Subsidiary Protection.

At a recent seminar on Constitutional reform, Chief Justice Denham stated that appeals to the Supreme Court could face delays of up to four and a half years before being heard.  Although priority cases waited on average nine months, a non-priority appeal certified this month might not be heard until mid-2017.

 

-ENDS-

 

Further information:

Sharon Waters                                  085 8585 510 / 085 1332502/ Sharon@irishrefugeecouncil.ie

 

Notes:

  • In M.M. v Minister for Justice and Law Reform (High Court, 23 January 2013), Mr Justice Gerard Hogan found that an applicant for Subsidiary Protection must be granted an effective hearing and this would not be accomplished where the Minister relied solely on the negative findings made during the failed application for asylum.  The judgment was handed down following a reference to the European Court of Justice.  A full copy of the judgment is available, please contact Sharon@irishrefugeecouncil.ie.
  • Sue Conlan’s opinion piece on the judgment in MM v Minister for Justice appeared in the Law Matters section of the Irish Times on 4 February 2013 (http://www.irishtimes.com/newspaper/finance/2013/0204/1224329599467.html)
  •  Subsidiary Protection is granted where a person who does not qualify as a refugee can show substantial grounds for believing that he/she would face a real risk of suffering serious harm if returned to his/her country of origin. The rules surrounding Subsidiary Protection are governed by an EU Directive (Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0083:EN:HTML )
  • Legislation to reform the protection and immigration systems has been brought forward on three occasions over the last decade.  The most recent version, the Immigration, Residence and Protection Bill 2010, was at committee stage when the previous Dáil fell.
  • The United Nation High Commissioner on Refugees submission to the Universal Periodic Review in 2011 stated that of the 40 grants of subsidiary protection made between 2006 and 2010 applicants waited on average four years from their original application for protection and a significant number waited for 5 years or more.
  • Speaking at a seminar on the establishment of a new civil appeal court in the Law Society on 2 March 2013, the Chief Justice warned that an appeal certified as ready the previous day was in danger of not getting a hearing until mid-2017.  Some 543 cases were currently ready to be heard on appeal and 71 of these had priority listing and would wait an average of nine months.