Asylum procedure in Ireland under Refugee Act 1996 - Essay Example

Asylum procedure in Ireland, under the Refugee Act 1996 (as amended CRITICAL EVALUATION OF THE ASYLUM PROCEDURE IN IRELAND UNDER THE REFUGEE ACT 1996 (AS AMENDED) Titus Rock Manickam Order No. 282707 19 April 2009 Table of Contents Introduction.....3 Communication...4 The Refugee Act 1996 (as amended)..4 The Migrant Rights Centre.5 The Office of the Refugee Applications Commissioner (ORAC)..7 Conclusion..8 Sources...9 CRITICAL EVALUATION OF THE ASYLUM PROCEDURE IN IRELAND UNDER THE REFUGEE ACT 1996 (AS AMENDED) Introduction The issue of illegal immigration is politically sensitive. Unregulated immigration undermines state sovereignty and may put the welfare system and national security at risk. Almost no statistics exist on stocks of illegally resident immigrants beyond the number of outstanding deportation orders. Data on the number of persons refused leave to land which was 4,477 in 2004 may be indicative of flows of illegal immigrants to Ireland. However it should be noted that permission to enter Ireland may be refused for a range of reasons. Ireland is a State party to the 1951 Geneva Convention relating to the status of refugees and the 1967 protocol. Ireland is also a signatory to the Dublin Convention under which the state responsible for examining applications for asylum lodged in one of the member states of the European Communities is determined, and is subject to the Dublin Regulation EC 343/2003 which succeeded that convention. The 1996 Refugee Act is the principal piece of domestic legislation dealing with refugees and asylum seekers. The Act incorporates the 1951 Geneva Convention into domestic law. It provides for the establishment of the Office of the Refugee Applications Commissioner (ORAC) as well as the Refugee Appeals Tribunal and sets out a framework to determine the outcome of asylum applications. The 1996 Act has been amended by the Immigration Act 1999, the Illegal Immigrants (Trafficking) Act 2000 and the Immigration Act 2003 (Applying for refugee status in Ireland). In view of the security threat by acts of terrorism, all applications for asylum are stringently checked. The likelihood of obtaining asylum is largely dependent on transparency of the information provided to the questionnaire by the relevant Commissioner. Communication Society in Ireland has become very diverse with 210 languages and dialects used in Irish courts. Statistics reveal that one person in ten in Ireland was born outside the country. In cases involving asylum-seekers both in criminal and civil law, migrant workers or any persons for whom English is not the first language, there are more and more instances in courtrooms where language is a barrier to effective communication. Serious concern arises in cases where non-professional interpretations or translation services are provided. Sometimes, miscarriage of justice can arise due to language difficulties. The access to an interpreter is at the discretion of the court (Ivana Bacik). The Refugee Act 1996 (as amended) The Refugee Act 1996 (as amended) was implemented in full on 20 November 2000. In this act a 'refugee' is a person who owing to a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his or her nationality and is unable or owing to such a fear is unwilling to avail himself or herself of the protection of that country. Or s/he may not be having a nationality and being outside the country of his or her habitual residence is unable or owing to such a fear is unwilling to return to it. This Act does not include a person as refugee if s/he is receiving protection or assistance from organs or agencies or the United Nations, is recognized by the competent authorities of the country in which s/he has taken up residence as having the rights and obligations which are attached to the possession of the nationality of that country, has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes, has committed a serious non-political crime outside the state prior to his or her arrival in the state, or has been guilty of acts contrary to the purpose and principles of the United Nations (Overview of Irish Immigration and Asylum Legislation). The Migrant Rights Centre The Migrant Rights Centre Ireland (MRCI) believes that access of illegally resident immigrants to the Irish courts has not yet been fully tested. The issues around employment rights are of particular relevance to illegally resident or undocumented migrants. Until recently the legal status of migrant workers was not an issue in cases brought to the Labor Relations Commission. The MRCI report that the situation is changing regarding labor relations cases involving immigrant workers; the legality of the residence status of the applicant is beginning to become relevant. The Employment Permits Act 2003 introduced penalties for employers and employees who do not hold the necessary documentation. Until recently all children born in Ireland, whether their parents were in Ireland legally or illegally, had an entitlement to Irish citizenship and therefore all the entitlements associated with citizenship. This is no longer the case. The Irish Nationality and Citizenship Act 2004 provides that any person born in Ireland after 01 January 2005 to non-Irish parents will not be entitled to be an Irish citizen unless one of the parents was legally resident in Ireland for at least three out of the four years preceding the child's birth. Periods lawfully spent in the State as an asylum-seeker or student does not count towards reckonable residence. There have been several legislative and policy developments that affect the status of illegally resident immigrants in Ireland to date. Historically levels of migration to Ireland were low and legislation and policy around immigration only began to emerge in the late 1990s. Regarding illegal immigration the emphasis to date has been on smuggling of immigrants rather than their status in the State. The Irish legislation that is relevant to the trafficking and smuggling of immigrants includes the Criminal Law (Sexual Offences) Act, 1999 - Sections 6-11, the Child Trafficking and Pornography Act, 1998, the Illegal Immigrants (Trafficking) Act, 2000 and the Children's Act, 2001 - Part 12: Protection of Children. The relevant international instruments include the United Nations Convention against Transnational Organized Crime 2000, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the Protocol Against the Smuggling of Migrants by Land, Sea and Air Council of Europe convention on action against trafficking in human beings. European Union Instruments include the Communication from the Commission to the Council and the European Parliament on a Common Policy on Illegal Immigration 2001 and the Council Framework Decision of 19 July 2002 on combating trafficking in human beings. The Immigration Act 2004 is the key piece of domestic legislation regarding the monitoring of immigrants in general and their compliance with immigration law. This Act empowers immigration officers to ask non-nationals to produce documents and to search such non-nationals and their luggage. The arrest and detention of illegally resident, undocumented and irregular immigrants is facilitated under this Act. The Employment Permits Act 2003 incorporates a provision whereby, for the first time, the requirements for employment permits in respect of non-nationals working in Ireland are set out in primary legislation, together with penalties for non-compliance by both employers and employees (Emma Quinn & Gerard Hughes). The Office of the Refugee Applications Commissioner (ORAC) ORAC is the first instance decision making body in the Irish asylum system. ORAC was established under the Refugee Act, 1996 (as amended). Under the Act, the Commissioner is required to investigate each asylum application lodged within the state and to make recommendations to the Ministry for Justice, Equality and Law Reform. The Commissioner is also responsible for investigating applications by refugees to allow family members to enter and reside in the state and for providing report to the Minister on such applications. The Commissioner is independent in the exercise of his functions. The applicant and his dependent minor children will be required to have their photographs and fingerprints taken. The fingerprints may be disclosed in confidence to the relevant Irish authorities and to asylum authorities of other countries. Refusal to allow fingerprints to be taken will be deemed as not to have made reasonable effort to establish true identity and failure in duty to cooperate in the investigation by the applicant. This may affect the credibility of the applicant and lead to the withdrawal of the application resulting in the Minister for Justice shall refuse to give the applicant a declaration. The applicant may also be detained by the Irish police force if they suspect the applicant has not made reasonable effort to establish his/her identity. Under the Act asylum seekers can be detained if an Immigration officer suspects that the applicant poses a threat to national security or public order, has committed a serious non-political crime outside the state, has not made sufficient efforts to establish his/her true identity, intends to avoid removal from the state in certain circumstances, intends to leave the state and enter another state unlawfully, has without reasonable cause destroyed his/her travel documents or has forged identity documents (Overview of Irish Immigration and Asylum Legislation) Conclusion The evaluation of the asylum procedure in Ireland under the Refugee Act 1996 (as amended) takes account of the current situation relating to the procedure and the circumstances in which the procedure becomes relevant. The status and the background of the immigrant's presence in Ireland play a dominant role in the acceptance or non-acceptance of the immigrant as refugee. Sources: Applying for refugee status in Ireland, Citizen Information, http://www.citizensinformation.ie/categories/moving-country/asylum-seekers-and-refugees/the-asylum-process-in-ireland/applying_for_refugee_status_in_ireland Country Profile: Ireland, http://ec.europa.eu/justice_home/doc_centre/asylum/seekers/doc/ireland_final_en.pdf Emma Quinn & Gerard Hughes, European Migration Network, Illegally Resident Third Country Nationals in Ireland: State Approaches Towards Their Situation, August 2005, IRE-Report12-9[1].pdf Information Note on Irish Asylum Procedures and the Common European Asylum Policy, http://www.irishrefugeecouncil.ie/factsheets/asylumprocedure04.doc Ivana Bacik, Breaking the Language Barrier: Access to Justice in the New Ireland, www.jsijournal.ie/html/Volume%207%20No.%202/2007%5B2%5D_Bacik_Breaking%20the%20Language%20Barrier.pdf Overview of Irish Immigration and Asylum Legislation, http://www.ris.ie/legislation/ Refugee Act, 1996, http://acts.oireachtas.ie/zza17y1996.1.html The Asylum Process, http://www.orac.ie/Pages/TheProcess.htm Read More