Effective asylum reforms would reduce reliance on courts

Posted On: October 19, 2011

OPINION: There needs to be an effective remedy to asylum review cases so aggrieved applicants will not have to look to the courts for redress, writes CATHERINE McGUINNESS

WHEN THE courts resume next month the High Court will return to a backlog of more than 1,400 asylum and immigration cases. With 59 per cent of judicial review cases now relating to asylum and immigration matters, it is time for a reform of the asylum and immigration systems that would lessen the need for recourse to the courts.

The lack of an effective remedy within the asylum and immigration systems has created a costly over-reliance on the courts and resulted in a strain upon court time and resources.

This is in a situation where court resources are already overburdened.

The volume of asylum and immigration judicial reviews is such that applicants now wait approximately 27 months for an initial hearing and a further four months for a full hearing. The financial costs are borne out in the expenditure on legal fees by the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal: approximately € 17 million over the past seven years, in addition to the cost of supporting and accommodating people while they wait.

A key reason for this need for recourse to the courts is the lack of effective remedy within an asylum system in which decisions are overwhelmingly negative. In our asylum system, the incidence of positive decisions is so low that in 2010 Ireland gained the dubious distinction of having the lowest rate of acceptance in Europe: just 1.3 per cent of claims for refugee status and subsidiary protection were recognised. The only avenue in which to challenge a negative decision in an immigration or subsidiary protection matter is the court.

Asylum applicants may appeal a negative decision at first instance to the tribunal. However, inadequacies in that body mean that its decisions are often subject to judicial review.

In reality, the tribunal affirms more than 95 per cent of negative decisions and has been widely criticised for its questionable independence, lack of transparency and scant or poor reasoning.

Firstly, tribunal members are appointed by the Department of Justice so that, in essence, the department acts as judge, jury and executioner in the asylum system.

Secondly, the manner in which the tribunal operates is opaque. There are no clear published guidelines for the allocation of cases to any particular member, some of whom have had 100 per cent refusal rates. Nor are there procedural guidelines for the conduct of proceedings. Contrary to one of the basic principles of fair procedures, hearings are held behind closed doors.

Thirdly, decisions of the tribunal are made available only in a limited way and questions have been raised about the quality of the reasoning. Decisions have been criticised as “cut and paste” rather than a serious attempt properly to determine the appeal. In the past, controversy over the lack of reasoned decision-making has led to certain members resigning on principled grounds.

In these circumstances, applicants unsurprisingly feel that justice has not been done in their cases and seek recourse to the courts.

Early in the new Dáil term, the Justice Committee will revisit the Immigration, Residence and Protection Bill 2010. One of the primary features of the proposed legislation is the introduction of a “single protection procedure”. This means that asylum and other protection claims will be considered simultaneously, rather than the current situation where an applicant must be refused asylum before they can seek subsidiary protection.

The Department of Justice believes that this streamlined procedure will solve the problem with delays and court proceedings. A single procedure is a welcome development and will reduce waiting times. (It is worth noting that only two cases qualified for subsidiary protection in 2010). However, a single procedure is not a panacea for all that is wrong in the asylum and immigration systems.

Unless and until the initial decision procedure for determining protection claims is itself altered to decide claims adequately, there needs to be an effective remedy to review cases so that aggrieved applicants will not have to look to the courts for redress. What is needed is a robust, independent appeals mechanism that can effectively deal with a variety of asylum and immigration cases in an efficient and transparent manner.

There is a useful example. After more than 40 years of an immigration appeals system, the UK has adopted a two-tier procedure that is genuinely independent of the immigration authorities and which is fair and transparent, reducing the necessity and ability to access the higher courts.

For example, appointments are made through a judicial appointments commission, fixed days are allocated, cases are heard according to published rules, hearings are open (unless there is reason for them to be in private) and there is a possibility to appeal on a point of law to an Upper Chamber.

This has the consequence of reducing delays, costs and the anxiety of those caught up in the system.

In the Immigration, Residence and Protection Bill 2010, the Oireachtas has the opportunity to put in place an immigration and asylum system that is fit for purpose. Given the consequences in both human and financial terms of failing to do so, it is to be hoped that our legislators will rise to the occasion.


Mrs Justice Catherine McGuinness is patron of the Irish Refugee Council

 

Appeared in the Irish Times, Friday 1 September 2011

Available at http://www.irishtimes.com/newspaper/opinion/2011/0902/1224303347889.html