Protection aspects of the Scheme for an Immigration, Residence and Protection Bill

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

2. Overview • Introductory remarks • General protection issues • Separated children • Procedural issues • Institutional issues • Recommendations

3. Introductory remarks • Good moment to revise current legislation: • 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

4. General protection issues • 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

5. General protection issues (2) • The non-refoulement provisions only ‘catch’ some HR non-returnables: • 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 non-refoulement procedure: • 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

6. Non-refoulement u/ int’l law: -Refugee -Torture or i/d t/p -Other HR with extra-territorial effect Non-refoulement u/ new scheme: -Refugee -SP -Torture -Serious assault Protected status: -Refugee -SP

7. General protection issues (3) • 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: • 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 non-protection aspects of protection application”

8. Separated children • 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

9. Procedural issues • Single procedure welcomed • But not all procedural matters set out in scheme: • 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

10. Institutional issues • 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: • 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?

11. Recommendations for drafting the bill • Ensure that bill’s conception of protection and non-refoulement 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