Legislating for Article 40.3.3: Thornton on The Right to Travel, Reproductive Rights and Asylum Seekers

Author: Dr Liam Thornton, School of Law, University College Dublin

I. The Right to Travel

The thirteenth amendment to the constitution recognised that the right to life of the unborn, did not affect the right of individuals to travel, hence women and girls in Ireland may travel to access abortion services in other states. When this amendment was carried by the electorate, Ireland was not a country of immigration, but a relatively homogenous state, with only 32 applications for asylum in that year.  The current debate on reproductive rights in Ireland (see hereherehereand here), has brought to light (yet again) the numbers of Irish women and girls who travel for abortions to the United Kingdom and Europe each year. The hardship caused by this situation, whereby the fondness of the Irish populace for protecting ‘life’ was not matched by an appetite to intern pregnant women and girls in the State (see here and here), is surely the most Irish of solutions to an Irish ‘problem’. Yet not all women and girls in Ireland enjoy an unfettered right to travel to access abortion services in the United Kingdom or other European countries. While this post focuses on asylum seeking women and girls, similar issues as regards the right to travel may also arise for non-European Union citizens who may also face visa problems (as well as cost implications) when travelling to the United Kingdom and further afield to access reproductive health services.

II. Asylum Seekers and the Right to Travel

Under Section 9(4)(a) of the Refugee Act 1996, those who apply for asylum in Ireland, may not travel outside of Ireland while their application is being decided upon, unless they receive the permission of the Minister for Justice and Equality. Even if such permission is granted, then this not necessary mean that a female asylum seeker will be given permission to enter the United Kingdom or any other EU state so as to access medical services (be it abortion or other medical treatments). The time delays inherent with gaining permission from the Irish Minister for Justice and Equality, and commencing a visa application process to enter the United Kingdom or some other European country, would cause unnecessary suffering for women already in a vulnerable position due to their legal status in Ireland. While there are more male asylum applicants than female asylum applicants (see RIA Statistics 2011, p. 59), the issue of right to travel to access abortion services in other jurisdictions, remains relevant.

The UN Committee on the Elimination of Discrimination Against Women, when examining Ireland’s state report in 1999, stated (at para. 185):

…the Committee is concerned that, with very limited exceptions, abortion remains illegal in Ireland. Women who wish to terminate their pregnancies need to travel abroad. This creates hardship for vulnerable groups, such as female asylum seekers who cannot leave the territory of the State.

For girls seeking asylum, and where this girl is a separated child, there may be additional complications as the Health Services Executive is responsible for protecting and promoting the welfare of separated children in Ireland, something that until recently they did with extraordinary incompetence and neglect. However, in recent times, better practice has emerged on care of separated children in Ireland.

Asylum seeking women and girls in direct provision (see hereherehere and here) have additional challenges to face, in particular as regards cost, both of travel and of the medical procedure itself. A Human Rights Watch report into Ireland’s restrictive abortion laws, A State of Isolation (2010), noted the particularly vulnerable nature of asylum seeking women and girls who were seeking to have terminations (see p. 5 and pp. 32-33 of  A State of Isolation). Questions regarding their legal status in Ireland, reliance on discretion of the Minister for Justice and Equality to allow her travel, reliance on the immigration administration in the receiving state to grant her entry for the procedure and the ability to raise significant sums of money to travel while receiving just €19.10 per week.

III. The Constitution, the Right to Travel and Asylum Seekers

The power to control aliens in Ireland is viewed as a prerogative of executive power. The Irish courts have held that the state has “very wide powers” to control the entry, departure and activities of aliens in the state (see, Pok Sun Shum v Ireland [1986] ILRM 593 at 599 per Costello J). In Osheku v Ireland, Hamilton CJ stated [[1986] IR 733 at 746]:

[It] is in the interests of the common good of a State that it should have control of the entry of aliens, their departure, and their activities and duration of stay within the State is and has been recognised universally and from earliest times.

Decisions of the High Court and Supreme Court have emphasised that aliens, including asylum seekers, do not enjoy as extensive constitutional fundamental rights as citizens. In Re Illegal Immigrants, the Supreme Court stated that non-nationals constitute:

a discrete category of persons whose entry, presence and expulsion from the State may be the subject of legislative and administrative measures which would not, and in many of its aspects, could not, be applied to its citizens.

Nevertheless, executive powers to control non-citizens must be taken in accordance with law and the Constitution and in particular non-citizens will have the same natural justice and due process rights as citizens. Therefore it appears that the restriction on asylum seekers right to travel to other jurisdictions may be permissible, even if such restrictions could not be placed on Irish women and girls.

IV. The Female Migrant Body

As Mullally notes (JSTOR subscription required, see also Luibhéid) anti-choice arguments in Ireland are strongly aligned with not only religious (predominantly Roman Catholic) teachings, but maintaining a ban on access to abortion services can also act as a means of distinguishing Ireland from other countries, in particular Ireland’s former coloniser (“the overwhelming push to define Ireland as “not England”). However, concerns as regards the ‘unborn’ seem to be strictly limited to those who are deemed Irish ‘unborn’. In Baby O v Minister for Justice, a Nigerian woman attempted to argue that the Minister for Justice could not deport her while she was pregnant, noting in particular the lacking maternal health facilities in Nigeria. While not dealing with the right to travel, the Irish Supreme Court made clear that no positive rights inhere in the unborn (at least where the mother is a non-national). The Supreme Court noted that the only effect of Article 40.3.3 was:

… intended to prevent the legalisation of abortion either by legislation or judicial decision within the State, except where there was a real and substantial risk to the life of the mother which could only be avoided by the termination of the pregnancy.

In 2003/2004, there was widespread concern (see herehere and here) regarding pregnant migrant women in Ireland, whose children would be citizens if born on the island of Ireland.

The Citizenship Constitutional Amendment passed overwhelmingly in 2004, restricting Irish citizenship to children born of at least one Irish parent (along with some other qualifying grounds).

The creation of national dichotomies of citizen/foreigner, rights/discretion, ‘unborn’/born continue to exact a toll on those women and girls who are seeking asylum in Ireland. A lack of clarity as to the precise application of the right to travel, with a particular emphasis in this post so as to access reproductive health services, leaves asylum seeking women and girls in a particularly vulnerable situation. Regardless of whether such permission is granted routinely by the Minister (or more likely the Minister’s officials), it leaves female asylum seekers at the mercy of bureaucratic permission to enable them to ensure they have access to a full range of reproductive health facilities, including the right to travel to access abortion services.