Thursday, 8 December 2005
I want to discuss the need for the Minister for Justice, Equality and Law Reform to explain why Afghan nationals seeking asylum in Ireland are being refused. The Minister of State may be aware that approximately 120 Afghans arrived outside Leinster House two days ago to protest at the manner in which they have been treated in terms of the asylum process. It brought to light that there seems to be almost 100% rejection of applications for asylum by Afghan nationals. It is perplexing how this situation should arise because anyone who knows anything about what is going on in the world would know without access to specialist information that Afghanistan is a war zone, that it has been devastated by the Taliban, al-Qaeda, United States troops and indigenous warlords.
Afghanistan is one of the most dangerous countries in the world. It sends a great amount of illegal drugs to this country and many people there are in danger of prosecution and of losing their lives. It is strange to think that the Government should reject virtually every case that comes before it of an Afghan national seeking the protection of the Government under the Geneva Convention.
When the matter was raised in the Dáil recently by Deputy Joe Higgins, the Taoiseach said that the Irish immigration system is transparent and that if the Afghan nationals did not think they were getting a fair hearing, the Taoiseach was certain they were. In fact the asylum system is not transparent or accountable. Under the current system, a person puts an application before the Refugee Applications Commissioner. If refused, the person can go to the Refugee Appeals Tribunal. That body is unaccountable. It never publishes any reason it refused an application. It is well known in the Bar that of the 35 members of the tribunal who hear appeals, some boast about the fact that they have never let a non-national through. That is not what I regard as a very accountable or transparent appeals mechanism.
Following on that, there are grounds for humanitarian appeal. That is at the discretion of the Minister for Justice, Equality and Law Reform who accepts or rejects it. We have seen already that the Minister does not even read the appeals, but nods through whatever is approved by his officials. We have a system which is slow, cumbersome and anything but transparent and accountable. For some reason, some people in the Department have got it in their heads that with regard to this system, Afghanistan is a safe and secure country. As a result, they simply refuse the applications. That is outrageous. People should not be sent home willy-nilly to a country where they will undoubtedly be persecuted.
At this moment a protest is taking place outside the Garda national immigration bureau against the proposed deportation of Nigerian and Algerian nationals. I am aware of one Nigerian involved, Abdel Karim Aissiou, who has spent five years in this country and is an aged-out minor who went to O'Connell School in my constituency and is preparing for his applied leaving certificate. He has now spent 46 days in prison in Ireland, although he was in direct provision in a hostel, because it was alleged he had not responded to a deportation order. He had spent all his life in a hostel, so the authorities knew precisely where he was. Now, after five years and after receiving an Irish education, he is told he is being deported. Dozens of other people are in the same situation.
That is not a transparent or accountable system. Specifically, I would like to see some meaningful response with regard to the Afghan nationals.
I thank Deputy Costello for raising this issue and I apologise for the absence of the Minister for Justice, Equality and Law Reform, Deputy McDowell.
It is important that I preface my remarks by pointing out that it has been the policy of successive Ministers for Justice, Equality and Law Reform not to comment on individual asylum applications or categories of asylum claims from particular nationalities. That said, there are two fundamental principles underlying the asylum process. First, when asylum seekers come here and seek our protection, their cases are fairly and independently examined, and second, a deportation process, after a person's case has been dealt with fairly and subject to the relevant statutory safeguards, is central to the proper running of any immigration and asylum system.
The definition of a refugee is set out in section 2 of the Refugee Act 1996. Subject to certain exceptions, including where persons may be excluded from refugee status on security related grounds, that definition is:
A person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her or her nationality and is unable or, owing to such fear, is unwilling to avail himself (or herself) of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, unwilling to return to it.
The task therefore for the independent refugee determination agencies in the case of each individual asylum seeker is to determine whether, following investigation, he or she is deemed to come within the terms of that definition on the basis of all the information which is gleaned.
As the Deputy is aware, under the Refugee Act 1996, two independent statutory offices were established to consider applications or appeals in respect of refugee status and to make recommendations to the Minister for Justice, Equality and Law Reform on whether such status should be granted. These offices are the Refugee Applications Commissioner and the Refugee Appeals Tribunal. The UNHCR is given full access to the refugee determination process and can examine any case at any time to ensure that fair procedures and our Geneva Convention obligations are complied with.
Every asylum application is considered on its merits. Every asylum applicant is guaranteed an investigation and determination of his or her claim at first instance by the Refugee Applications Commissioner. Following each interview, an assessment is made of the core elements relating to the case. Consideration is given to the subjective and objective elements of the application. The subjective element of an asylum application concerns the applicant's individual circumstances as they are perceived and described by him or her. The objective element of the application concerns the relevant country of origin information which comes from a wide variety of sources, including information from organisations such as the UNHCR, Amnesty International, Canadian boards of immigration and other EU member states as well as media and Internet sources. In addition to these periodically updated sources, the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal have access to up-to-date news reports regarding events and developments in the countries concerned.
The assessment carried out includes determining whether an applicant has a well founded fear of persecution, whether the persecution is related to a Geneva Convention reason, whether the applicant is unable or unwilling to return to his or her own country, what internal protection alternative, if any, might be available within his or her own country, as well as credibility issues, which are always extremely important to consider.
Every asylum applicant is guaranteed a right of appeal to a statutorily independent and separate body, the Refugee Appeals Tribunal. Every asylum applicant is also guaranteed access to legal assistance provided by the Refugee Legal Service.
Under the provisions of section 17(1) of the Refugee Act 1996, the final decision in respect of an asylum application is a matter for the Minister for Justice, Equality and Law Reform based on the recommendation of the commissioner or the decision of the tribunal. However, under the legislative scheme of things the Minister is obliged, save in very exceptional circumstances, to accept a recommendation that a person should be given refugee status. Such a decision is made by the Minister as soon as possible following receipt of the relevant papers from the commissioner of the tribunal, as appropriate.
Asylum applications from Afghanistan amounted to 24 in 2003, 106 in 2004 and 133 in 2005 to date. After, as I have indicated, a fair and comprehensive determination process at first instance in the Office of the Refugee Applications Commissioner, there were 25 grant recommendations in the period 2003 to 2005 to date. This compares to 166 refusals during the same period. At appeals stage in the Refugee Appeals Tribunal, the number of Afghan nationals granted refugee status was 14 in the period 2003 to date. The number refused status at appeals stage was 44 during the same period.
In accordance with section 3 of the Immigration Act 1999, as amended, a person who has failed the asylum process and who has been refused refugee status in the State is informed in writing that it is proposed to make a deportation order and that person is given the following options: to make written representations within 15 working days to the Minister for Justice, Equality and Law Reform setting out reasons he or she should not be deported, to voluntarily leave the State or to consent to deportation.
Following consideration of each case under section 3(6) of the Immigration Act 1999, as amended, a decision is taken whether to deport or to grant temporary leave to remain in the State. Section 3(6) of the Immigration Act 1999, as amended, requires the Minister to consider 11 factors, including representations received by or on behalf of the person, family and domestic circumstances, employment prospects and so on, in deciding whether to make a deportation order or to grant temporary leave to remain in the State.
The safety of returning a person, or refoulement as it is referred to, is fully considered in every case when deciding whether to make a deportation order. This means a person shall not be expelled from the State or returned in any manner whatsoever to a state where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. The Department of Justice, Equality and Law Reform uses extensive country of origin information, drawn from different independent sources, including the United Nations High Commissioner for Refugees, in evaluating the safety of making returns to third countries.
The Minister is satisfied that the procedures followed in all cases ensure all asylum requests are considered in a comprehensive and fair manner.