‘Beyond McMahon – the future of asylum reception in Ireland’

We are delighted to welcome this guest post by Claire Dorrity, lecturer in social policy in the School of Applied Social Studies, UCC.

Nasc logoOn Wednesday 25th April 2018 Nasc and the Centre for Criminal Justice and Human Rights (CCJHR) co-hosted a conference in UCC on the future of asylum reception in Ireland. The conference participants included members of the Working Group (Working Group to Report to Government on the Protection Process, including Direct Provision and Supports to Asylum Seekers), academics, representatives from state institutions, international speakers from both the Portuguese and the Scottish Refugee Councils, representatives from the Irish Human Rights and Equality Commission, Migrant NGO representatives, and members of the asylum seeking community in Ireland. The main foci of the conference related specifically to the system of direct provision, models of integration and rights that are afforded to asylum seekers.

Broadly speaking, asylum policy incorporates three key areas: – 1) the rights and entitlements of those entering the state to seek asylum, 2) the reception conditions afforded to asylum seekers by the state, and 3) how asylum issues are represented both in policy and practice. The political representation of asylum issues will also be determined by the modes of participation, engagement and inclusion available to asylum seekers. In Ireland, rights available to asylum seekers to influence political outcomes and decision-making processes remain severely restricted. This is mostly attributed to the nature of immigration policy, more specifically the asylum process and the restricted status asylum seekers occupy within the Irish state (Titley, 2012; Lentin, 2004).

The system of direct provision (DP) has been in operation in Ireland since 1999 and was made the official mechanism for the reception of asylum seekers in 2000. Prior to the introduction of DP, asylum seekers had the right to access the labour market and receive social welfare payments, equivalent to that of an Irish citizen. The system of DP, however, removed that right and since then asylum seekers have been the subject of an increasing array of restrictions on many of their basic human rights. The system of DP placed asylum seekers in designated accommodation centres dispersed around the country and has continued to operate for the past 18 years.

The exclusionary aspects of DP are well documented (Kinlan, 2013; Arnold, 2012; Lentin, 2012; Titley, 2012; Akidwa, 2010; FLAC 2010; Considine and Dukelow, 2009). They are evident in the location of DP centres, generally located away from local communities, limiting the ability of asylum seekers to integrate into communities. Also evident in this system is the denial of the right to work and third level education, economic marginalisation, conflated with limited rights and freedoms. A weekly allowance of €19.10 per week adults and €9.60 per child was permitted from 2000 until 2016. This rate did not change in over 16 years despite incremental increases in other social welfare allowances. In January 2016 the child allowance increased to €15.60 and the adult weekly allowance now stands at €21.10 (Department of Social Protection, 2016). In 2017 the rate increased to €21.60 for both adults and children (Department of Employment Affairs and Social Protection).

The administering of the direct provision system is carried out by the Reception and Integration Agency (RIA), as part of the Department of Justice and Equality, who are contracted to provide full board and accommodation for asylum seeker residents. There is currently no requirement for staff employed in DP centres to undertake training in the area of child protection or to have had any training of working with asylum seekers, vulnerable people or children (Irish Refugee Council, 2013). However, RIA has now brought their child protection policies in line with new legislation and have a dedicated seconded Tusla social worker on staff. There is also now a requirement for training in child protection when working with vulnerable children and adults (RIA, 2018).

The introduction of the policy of DP has been widely criticized, by both academics and migrant NGOs alike, for its failure to consult with asylum seekers and migrant NGOs prior to its implementation and also for the exclusionary and restrictive nature of the system and its impact on the daily lives of asylum seekers (O’Connor, 2003; Healy, 2007; Lentin 2012). Furthermore, while the European Union introduced a Council Directive 2003/9/EC of 27 January 2003 (revised in 2013) putting in place minimum standards for the reception of asylum seekers, the Irish state opted out of this directive. This allowed Ireland to continue administering the system of DP at a policy level. The system allows for little recourse for those living within DP accommodation (Irish Refugee Council, 2011). In 2012 the Irish Refugee Council released a document addressing child poverty in the DP system entitled ‘State Sanctioned Child Poverty and Exclusion’. The report highlighted both child poverty and child protection issues. More specifically it stated:

The Special Rapporteur on Child Protection, Geoffrey Shannon, has raised concerns about the detrimental effect of Direct Provision accommodation on children and on parents’ ability to provide adequate care. He describes the system as amounting to institutionalised poverty (2012:21)

Also highlighted was ‘unsuitable living conditions, malnourishment, poverty, exclusion and lack of play space’ (2012: 21). The Irish Human Rights and Equality Commission have also repeatedly expressed concern about the human rights of residents in DP (Irish Human Rights and Equality Commission, 2014). Both NGOs and academic commentators have criticised the system and highlighted the challenges to integration that DP presents for asylum seekers (Irish Refugee Council, 2012; FLAC, 2010; Nasc 2007; Fanning 2002).

Reflections on the Conference

Political representation is highlighted as one of the most crucial avenues to democratic processes of representation (Pitkin, 1967). It both establishes the legitimacy of democratic institutions while also creating institutional incentives for state bodies to respond (Dovi, 2017). Political representation has been acknowledged as an important means of providing voice to oppressed groups through assigning meaning to the manner in which groups are represented and importing significant issues and their relevance into the body politic (Young, 2000). The literature on inclusive political representation indicates that the exercise of voice and demanding more responsiveness and accountability from state institutions is more likely to occur when other participatory mechanisms are present (Rocha Menocal, 2014). In this context, developing more inclusive representative structures and fostering strong mechanisms of inclusion is highly significant.

The conference ‘Beyond McMahon – the future of asylum reception in Ireland’ took a step towards facilitating inclusive dialogue on key asylum issues. It provided an interactive space involving the participation of state and non-state actors, along with a range of participants working directly or indirectly with asylum seekers. Most refreshing was the inclusion of the voices of asylum seekers. Lucky Khambule, a spokesperson from MASI (Movement of Asylum Seekers in Ireland) gave a poignant contribution from the perspective of the asylum seeker, giving the audience a real insight into the lived experience of those accommodated in the DP system. This provided both the speakers and the attendees with a clear sense of how oppression and injustice operates within the DP system.

The international perspectives from both Teresa Mendes, Director of the Portuguese Refugee Council and Sabir Zazai, Director of the Scottish Refugee Council provided an invigorating alternative to systems such as DP, placing a focus on the importance of making explicit the vital supports required for asylum seekers when arriving in host countries. Both of these approaches provided avenues for new thinking in relation to how Ireland might respond to the reception of asylum seekers in future policy formation. Both contributions highlighted the important role refugees play in enriching and providing positive contributions to host societies. The right to work was highlighted as playing a crucial role in supporting refugees to integrate into community life. Promoting autonomy within the asylum seeking community was also viewed as a key factor in ensuring successful and inclusive participation and integration. These explicitly inclusive and supportive systems of reception illustrate how the Scottish and Portuguese models emphasise humanitarian principles and place human security at the centre of their approach. It also highlights how such approaches can assist in resolving some of the tensions and challenges Ireland currently faces.

Overall the conference discussions illuminated the need for a more coordinated approach to asylum policy that does not involve punitive measures or prolonged periods of time in DP. The contributions and discussions made clear that any coherent policy must prioritise rights and dignity. This will require a willingness on the part of all parties to accept that the current system is not fit for purpose and failing asylum seekers socially, financially and politically. In bringing together all parties, the conference set the foundations for building better working relationships but highlighted that such relationships must place asylum seekers at the forefront of this process. This will require new and different approaches, one that treats asylum seekers in a more humane and dignified way and as people who can make a valuable contribution to Irish society if given the opportunity to do so.

Further References:

Migration and responsibility for deaths in the Mediterranean

UNHCRThe tragic deaths of an estimated 700 people in the Mediterranean this week have again highlighted the limits of Europe’s responses to migration, including forced migration and human trafficking. It has taken the deaths, the avoidable deaths of hundreds of desperate people, including several hundred children, to jolt Europe into action. These tragic events were avoidable, and following the policy choices made by the European Union and its Member States in 2014, they were, sadly, all too predictable.

Following Italy’s decision to end the successful Mare Nostrum search and rescue mission, because of a lack of financial support, the EU launched the much more limited Triton mission, the priority of which was  ‘border management’.

The Mare Nostrum mission itself was launched by Italy in response to another tragic event, the drowning of 366 Eritrean and Somali men, women and children off the coast of Lampedusa. This event is now almost forgotten. At that time, the European Council met and expressed its deep sadness at this tragedy which, it said, “shocked all Europeans”. Sadly these words have become all too familiar. Commissioner Malström called for a more open approach to migration, to define a common European policy based on the rights of the migrants and of the asylum seekers and on solidarity to both the migrants and the Member States.

In 2011, we heard similar expressions of outrage following the ‘boat left-to-die’ tragedy, when more than 60 people lost their lives amid confusion and dispute as to who bore the legal responsibility to launch a rescue mission. Rapporteur for the Parliamentary Assembly of the Council of Europe (PACE), Dutch Parliamentarian Tineke Strik, concluded following her investigation that this was a tragedy that should not have happened – in the busy Canal of Sicily.

The Council of Europe Group of Experts on Action against Trafficking (GRETA), commended Italy’s Mare Nostrum operation, as an example of best practice in protecting victims of trafficking. In 2014, Mare Nostrum saved the lives of more than 150,000 people. When the mission was ended, GRETA wrote to Prime Minister Renzi expressing its concern at the ending of the Operation and calling for its reinstatement.

Mr Francios Crépeau, UN Special Rapporteur on Migration, writing in December 2014, expressed his fear that without Mare Nostrum, thousands of people would die in 2015. Shamefully, and tragically, his fears have been realised. In October 2014, the UK Govt. announced that it would not support search and rescue missions in the Mediterranean because they created, in their words, an unintended “pull factor”, encouraging more migrants to attempt the dangerous sea crossing. The failure to recognise the desperation and trauma endured by people who are smuggled or trafficked, many of them children, provoked outraged responses from civil society,  UN and European human rights bodies. In a strongly worded statement, Mr Crépeau said:

“To bank on the rise in the number of dead migrants to act as deterrence for future migrants and asylum seekers is appalling. It’s like saying, let them die because this is a good deterrence.”

The European Council has now agreed to triple the funding to be provided to Operation Triton, headed up by the EU agency, Frontex and the Italian authoritiesAn increase in the numbers of Syrian refugees to be resettled is also likely, though remains a matter of voluntary pledges. The recognition that the Dublin system is broken is welcome, if long overdue.

The proposal to seek a UN Security Council resolution to destroy the vessels of traffickers and smugglers reflects a continuing preoccupation with security. As yet, far too little is being done to respond to what is a humanitarian and human rights crisis.  Despite a Joint Statement from UN leaders, calling for expanded access to regular migration routes, this is not addressed, the focus remaining on return of irregular migrants (including through expedited removals), and externalisation of border controls.

UN Special Representative on Migration, Mr Peter Sutherland speaking on Morning Ireland commented that there is a lack of clarity on the responsibilities of states towards asylum seekers who arrive on their shores. The responsibilities, however, are clear, and have been reinforced by the European Court of Human Rights in its landmark 2012 judgment, Hirsi v Italywhich condemned any ‘push back’ of asylum seekers or migrants to countries where they would face torture, inhuman or degrading treatment.

Ireland has done far too little to assist in this crisis to date. The comittment to providing a fully crewed naval vessel is welcome, but it is not enough. We could and should play a much bigger role in resettlement of Syrian refugees, as called for by UNHCR for several years now. The avoidable deaths of children, women and man in coffin ships should be confined to the distant and sad past, not an all too familiar tragedy on the shores of the European Union.

Professor Siobhán Mullally, Director, Centre for Criminal Justice and Human Rights, University College Cork, Vice-President of the Council of Europe Group of Experts on Action Against Trafficking in Human Beings. 

 

Why Edward Snowden never had a right to asylum

There is nothing that complicated about the Edward Snowden case, but it does involve several overlapping areas of law, international and domestic, and commentators seem to assume there is some sort of accepted hierarchy. The starting point is that he is accused of violating some US domestic criminal law by revealing the activities of the US security service’s surveillance operations as a consequence of prior employment for a contractor to the NSA. When his disclosures came to light, he was in the Hong Kong Special Administrative Region. It is at this point that the complexity of the overlapping legal regimes first generated confusion. The allegation of criminal activity prompted the United States to seek his extradition; Edward Snowden started to explore the possibility of seeking asylum to avoid prosecution in the United States. The processes were parallel, but distinct. The easiest aspect of the confusion to remedy is that relating to asylum. International law does not grant a right to asylum, but at best Article 14 of the Universal Declaration of Human Rights (UDHR) — not legally binding in and of itself — provides for a right to seek and enjoy asylum. Indeed, while much of the UDHR was incorporated in the legally binding International Covenants on Economic, Social and Cultural Rights, and Civil and Political Rights, Article 14 made it into neither, so only if it has achieved customary status can one find a binding obligation to allow him to even seek asylum. Asylum itself is in the grant of the state and depends on domestic laws and procedures. There are multiple extradition aspects to this case. First, extradition generally requires some form of agreement between the requesting and requested states, initially between the US and the HKSAR and now Russia. There is an extradition arrangement with HKSAR in force since 1998, but none with Russia. Moreover, if he were to be offered asylum, there would be nothing to stop the US filing a request with that state if there was some form of agreement between them. Extradition arrangements are specific to each agreement, but there are some generic concepts, such as extradition crimes, double criminality, and the political offence exception. In Edward Snowden’s case, those three elements raise some particular issues. It is beyond the scope of this piece to explore the domestic US law he might have violated, but the facts and offences would have to be criminalized under the law of the requested state as much as the US before extradition could be permitted. Moreover, extradition treaties generally exempt from surrender those accused of offences of a political character. Courts in different countries have interpreted the political offence in different ways, but it is never enough to have a political motivation. Further, while espionage (if that is indeed what Edward Snowden is alleged to have committed) may seem the archetypal political offence, it has received a mixed reception in the courts depending in part, according to some case law, on whether he might have gained any financial benefits. Finally, more modern extradition treaties often include human rights guarantees such that surrender cannot be granted to the requesting state, the US, if the alleged fugitive’s rights would be violated. While the extremes of the Bush regime’s activities in Guantànamo are not something Edward Snowden need fear, the requested state might feel the need to impose conditions on the type and maximum length of any prison sentence following a conviction. The United States does not allow individuals to petition for international review of its domestic decisions, so the onus is on the requested state to establish such protection in advance (see Judge v Canada). Extradition and deportation are two different processes, although both remove an individual from a state. In the latter case, however, the domestic immigration law simply requires a non-national to depart and there need be no required destination, except that only the state of nationality has an obligation to receive anyone in normal circumstances and Edward Snowden is still a US national. One area of law that does affect deportation is international refugee law under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Refugees cannot be subjected to refoulement to the frontiers of a territory where their life or freedom would be threatened. However, to be a refugee, the applicant has to have a well-founded fear of persecution for one of five grounds, including political opinion, and Edward Snowden does not fear persecution, rather prosecution. The law itself is not persecutory and is not being applied only because he is in political disagreement with the surveillance procedures. Furthermore, Article 1F of the 1951 Convention excludes from refugee status those with respect to whom there are serious reasons for considering that they have committed a serious non-political crime, but that would just rehearse the earlier debates on political offences. Finally, one comes to the issue of asylum. Asylum is in the grant of the state. Ordinarily one seeks it on the territory of the relevant country, although states in Central and South America accept applications in their embassies. The Julian Assange case shows that Ecuador, at least, applies that outside the region. So far, Nicaragua, Venezuela, and Bolivia have offered Edward Snowden asylum if he can get there from Moscow. States are at liberty to let anyone they please in to their territory. It can be presumed that if they grant him asylum, they would not extradite him to the US if they received a request; all three states have extradition arrangements with the US. However, all three are democracies and a subsequent government may not feel obliged to respect that grant. Cesare Battisti had been given asylum in France, but when the Sarkozy regime threatened to send him back to Italy, he ended up fleeing to Brazil where his eventual protection depended on the President, not the courts.

http://blog.oup.com/2013/07/why-edward-snowden-never-had-a-right-to-asylum/?utm_source=feedblitz&utm_medium=FeedBlitzRss&utm_campaign=oupblog

Geoff Gilbert is a Professor and Head of School in the School of Law and Human Rights Centre at the University of Essex. He has been Editor-In-Chief of the International Journal of Refugee Law (Oxford University Press) since 2002. He was founding Director of Studies for the Thematic Refugees and Human Rights Course from 2005-2007 with the UNHCR; Director of the Organization for Security and Co-operation in Europe (OSCE) training program for judges on combating torture in Serbia and Montenegro; and Special Adviser to the Parliamentary Joint Committee on Human Rights on the ‘Treatment of Asylum Seekers, 2006-07’.

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