Today (August 14 2013), the High Court of Northern Ireland in Belfast issued a decision that could have a knock on impact on the Republic of Ireland’s asylum system. The judgement, In the Matter of an Application for Judicial Review by ALJ and A, B and C  NIQB 88 (14 August 2013), is substantial. The core focus in this post are comments made by the judge in the case, Mr Justice Stephens, on the Irish asylum and direct provision systems. The full facts of the case can be found from paragraphs  to  of the judgment. Throughout the judgement, Mr Justice Stephens outlines in detail his significant discomfort with the asylum status determination system and the system of direct provision in the Republic of Ireland.
The applicants had made a claim for refugee status in the Republic of Ireland in 2010 on the basis that the applicants would face persecution as non-Sudanese Darfuris. This application was rejected by ROI in 2011. The applicants subsequently made an application for subsidiary protection in April 2011. However, in July 2011, the applicants entered Northern Ireland and applied for asylum. Under EU Law, the Dublin II Regulation, the UK authorities sought to return the applicants to the Republic of Ireland. The applicants challenged the decision of the UK Border Agency to return them to Ireland and argued that discretion should be exercised not to return them to the Republic of Ireland, under Article 3(2) of the Dublin II Regulation. The applicants contended that return to the Republic of Ireland’s refugee and protection status determination system, with its minuscule recognition rates and the system of direct provision, would violate their rights under Article 4 & Article 7 of the European Charter of Fundamental Rights (EUCFR). Article 4 EUCFR protects against torture, inhuman and degrading treatment. Article 7 EUCFR protects the right to private and family life.
Refugee & Protection status determination process
Although not “systematically deficient”, Stephens J. stated that Ireland’s low rate of recognition of protection seekers was “disturbing, but I a not prepared to hold that they establish a systematic failure” (para 65). The discussion by Stephens J of the approach of the Office of the Refugee Applications Commissioner and the tribunal member for the Refugee Appeals Tribunal:
I have emphatic confidence that the High Court in Ireland, if it independently comes to the same conclusions that I have, namely that both the [Office of the Refugee Applications] Commissioner and the [Refugee Appeals] Tribunal ought to have, but failed to consider whether the applicants were non Arab-Darfuris…on that basis alone there was a well founded fear of persecution if they were returned to Sudan, that relief will be granted to the applicants by way of judicial review….
As regards the possibility of return to Sudan, Stephen’s J held that he had confidence in the Irish courts and the Minister for Justice and Equality to act on information regarding danger towards non-Arab Darfuris in Sudan. While the UK had a policy in place to not return non-Arab Darfuris to Sudan, there was no obligation on Ireland to follow suit.
Reception Conditions/Direct Provision
The applicants contended that the system of direct provision, the length of time that asylum and protection seekers need to remain in this system, was a systematic failure in the system that amounted to a violation of Articles 4 & Article 7 EUCFR. Stephens J relied extensively on the Irish Refugee Council’s report State Sanctioned Child Poverty and Exclusion in noting the significant hardships asylum seekers in Ireland face (paras 71-90): unable to work on pain of criminal sanction; the low rate of subsistence allowance, communal accommodation, meals, hostile environment towards family life, isolation and health problems.
However, Stephens J rejected the argument that the direct provision system constituted a systematic failure to such an extent that it constituted inhuman and degrading treatment, and stated (at para. 84):
It is not for the courts in this jurisdiction to determine whether the evidence of conditions in Direct Provision accommodation amounts to a breach of Articles 1 and 7 of the Charter [EUCFR]. Those are questions for the courts in Ireland.
Such a case, albeit on Constitutional and ECHR grounds, is currently before the High Court (see here and here).
Best Interests of the Child
The applicants case did succeed on the following ground. Section 55 of the Borders, Immigration and Citizenship Act 2009 [UK] provides that any function of the UK Home Secretary within the field of immigration, asylum or nationality must be discharged so as to “promote the welfare of children who are in the United Kingdom”. Stephens J, relying on the Convention on the Rights of the Child, the case of ZH (Tanzania) from the House of Lords held that the UK Border Agency had failed to consider the best interests of the children in this case.
In paragraphs 102-103 of his decision, Stephens J noted that if the applicants were returned to Ireland:
- Their mother and Child A (who is now over 18) would be unable to work in the Republic of Ireland, but could possibly work in Northern Ireland;
- The family would be forced to live in a communal direct provision hostel in the Republic of Ireland, however have their own accommodation and budget and can cook their own meals in Northern Ireland.
- The minor children, B and C, could “develop their own sense of belonging and separate identity” in Northern Ireland, which they could not do in direct provision centres in the Republic of Ireland;
- There are significant physical and mental health issues amongst asylum seekers in direct provision in Ireland due to the significant amount of time they have to spend in this system.
- As a matter of UK policy, the children would not be returned to Sudan, but this is not automatically the case in Ireland.
Impact of this decision in Ireland?
While Stephens J did not find that the status determination systems or the reception conditions of asylum seekers in Ireland were so awful that they constituted inhuman and degrading treatment, he has clearly stated that the system of direct provision is contrary to the best interests of the child. With the porous border between the Republic of Ireland and Northern Ireland, as well as a multitude of transport options to travel to Northern Ireland, it may be that others seeking asylum in this State will make such a journey. Calls for reform of the system of direct provision have been ongoing since it first began operating in 2000 (see here, here, here and here). Maybe now the Irish Government will begin to listen to these calls for reform.
Errors in the Judgment
At paragraph 73, Mr Justice Stephen’s stated:
Asylum seekers are legally required to ‘reside and remain’ in the Direct Provision accommodation centre….It is a criminal offence to breach this requirement.
This is not the case and asylum seekers are free to leave direct provision, once they inform the Office of Refugee Applications Commissioner of their new address. However, if they do leave, they are not entitled to the payment of €19.10 per week per adult/€9.60 per week per child.
Further on in paragraph 102 (and again in para 73 & 75), Mr Justice Stephen’s states:
Children of asylum seekers are not entitled to a state education once they are 16.
This too is incorrect (see here and here) , and children of asylum seekers or child asylum seekers are entitled to remain in secondary education until completion of their Leaving Certificate. However, this formed but one element of Stephens J’s consideration and did not appear to be the core focus in making his determination that the best interests of the child mandated that the UK should take responsibility for the applicants asylum claims.