Transcript Slide 1

Protection aspects of the
Scheme for an Immigration,
Residence and Protection Bill
Ciara Smyth, Law Faculty, NUI Galway
Law Society Conference: New Rules for the
New Irish
January 27 2007
Overview
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Introductory remarks
General protection issues
Separated children
Procedural issues
Institutional issues
Recommendations
Introductory remarks
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Good moment to revise current legislation:
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Numbers stabilised (‘pull-factor’ of citizenship
dealt with; new EU MS will reduce load)
Qualification Directive transposed
A number of years’ experience under belt
Important to balance legitimate control
concerns with protection obligations
Focus of this presentation on protection and
stance taken deliberately critical
General protection issues
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Grounds for SP limited to Qualification Directive
grounds:
 Death penalty
 Torture or i/d t/p
 Some indiscriminate violence
Note also broad exclusion provisions
Protected status does not cover all persons who are
non-returnable under HR law:
 Excluded victims of torture or i/d t/p
 Persons at risk of violations of other HR with
extraterritorial effect
Also fails to cater for persons legally removable but
with valid protection need
General protection issues (2)
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The non-refoulement provisions only ‘catch’ some
HR non-returnables:
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Torture (but not i/d t/p)
Those at risk of serious assault (does not exhaust category
of HR violations with extra-territorial effect)
Even above unlikely to be caught because of nonrefoulement procedure:
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U/ scheme, removal of an unsuccessful applicant for
protection is not a refoulement
Any contention that it is a refoulement requires the
applicant to submit further application for protection
(requires Minister’s consent)
Completely circular: already demonstrated that person not
eligible (or excluded from) protection
Further application likely to be dealt with as MU
Non-refoulement
u/ int’l law:
-Refugee
-Torture or i/d t/p
-Other HR with extraterritorial effect
Non-refoulement
u/ new scheme:
-Refugee
-SP
-Torture
-Serious assault
Protected
status:
-Refugee
-SP
General protection issues (3)
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What to do with HR non-returnables?
And those legally returnable but with valid protection
need?
Minister can grant another type of residence permit
if considers that “exceptionally serious reasons”
But note non-protection type considerations:
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Minister only required to consider reasons relating to
departure (not non-return)
Minister must consider whether bestows “unfair advantage”
over similarly situated persons outside State??
Note also title of relevant Head: “Criteria for nonprotection aspects of protection application”
Separated children
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Definition and terminology problematic
Age assessment unsatisfactory
Precise role of ‘responsible adult’? Why not
guardian?
Confused guidance re when HSE should make
protection application (best interests or protection
need?)
Lack of alternative to making protection application
Lack of exemption from MU, STC, SCO
Lack of any child-specific considerations re burden
of proof and credibility
Procedural issues
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Single procedure welcomed
But not all procedural matters set out in scheme:
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Precise content of 1st instance procedure “to be prescribed”
Admissibility procedure re STC subject to Ministerial orders
On other hand, some matters in scheme not suitable
for primary legislation e.g. direction re credibility
Some grounds for negative credibility assessment
not related to “core” of claim
Withdrawals: harsh treatment of implied withdrawals
Burden of proof: normally shared; scheme places
squarely on applicant
Institutional issues
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Disbandment of ORAC and RAT; transfer of
responsibilities to INIS and PRT
Coupled with broader responsibilities (SP)
Raises issue of training
New PRT welcome in light of difficulties of
precedessor:
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Lack of consistency in decision-making b/t Tribunal
Members
Lack of transparency in decisions (non-publication of
decisions)
Some improvement on these 2 key issues but does
scheme go far enough?
Recommendations for drafting the bill
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Ensure that bill’s conception of protection and nonrefoulement are compatible with int’l law
Child-rights proof entire bill as is required by CRC
Ensure all key procedural matters in primary
legislation
Restate burden of proof and keep credibility
assessments to core of claim
Require all prospective Tribunal Members to
undergo competitive selection
Reconsider issue of publication of PRT decisions