Deportations
Mandela or Oliver Tambo, would they get to stay?
A refugee means 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 nationality and is unable or, owing to such fear, is unwilling to
avail himself of herself of the protection of that country; or not having a
nationality and being outside the country of his or her habitual residence,
is unable or, owing to such fear, is unwilling to return to it.
- 1996
Refugee Act.
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Last Wednesday, (July 7th) the President signed the Immigration Bill, 1999,
into law. The bill has been dubbed the ``Deportation bill'', which of course
is exactly what it was intended to be.
The bill allows the Minister of Justice, Equality and Law Reform to deport
non-nationals from the state. These powers have been denied the minister
since the Supreme Court ruling on the Laurentiu Case, where a successfull
challenge was brought to the Aliens Act of 1935, under which the minister
had to date succeeded in deporting people.
The Immigration Act has been strongly criticised on the grounds of the ad
hoc nature of its provisions, as much as the manner in which it has been
introduced. The bill was bounced through the Oireachtas with unseemly
haste, despite that fact that the Refugee Act of 1966 has still not been
implemented apart from 6 of its 30 titles (those concerning Interpretation,
definition of `refugee', Prohibition of refoulement, the Dublin Convention,
Regulations and the title dealing with `Programme Refugees).
Unseemly haste
The Immigration Bill was introduced within days of the Laurentieu case to
allow the Minister power to deport. The Oireachtas committee for Justice,
Equality and Women's Rights, which under the coalition government has been
subsumed under the aegis of the Department of Justice, met just three times
to consider the views of those who had made submissions, or the 82
amendments proposed to the Bill, many of which were guillotined to ensure
passage of the legislation before the summer recess.
The Act makes no provision for an independent appeals procedure, although
this is required by Article 13 of the International Covenant on Civil and
Political Rights. Instead, applications for refugee status are heard in a
quasi legal `interview' by appointees of the Department of Justice, without
due process of law. Interviews are not recorded, there is no transcript.
There are no clear rules of evidence, or statutory rights to an interpreter
or provision for adequate legal aid.
Meanwhile, there are some 6,000 people in the state awaiting the resolution
of their claim to asylum. Most asylum seekers, when they first land in this
country, are initially refused permission to land, but this refusal is
suspended whilst their claim for asylum is being processed. They are in
legal limbo during this time, as Ivana Bacik, Reid Profesor of Criminal Law
and Criminology at Trinity College, has pointed out. They do not have the
protection of their rights, as afforded to everyone else under the
constitution.
The Act thus creates a sub group of `citizens', who happen to be living in
this country, if only temporarily, but who do not have full constitutional
rights. Many of this `sub-group' are of course coloured. They do not enjoy
the constitutional rights of `nationals'.
Rights such as freedom from arbitrary arrest, freedom of assembly, to
associate, to free speech, to own property etc, are not specified, but are
not afforded to this limbo group. Some rights are specifically denied to
them, as for example the right to work, or to conduct their own business,
the right to support themselves Because they are not specifically allowed
to be available for work, they may not receive education as others in the
state may.
The fact that Minister O'Donogue last week, on the very day when the bill
passed into law, announced that parents of children born in the state, who
therefore have Irish nationality, will, in most cases, be allowed the right
to work, does not, by any manner or means, correct this situation. Even
before the minister's announcement, parents of such children were allowed
to work, despite the fact that their status in this state remains an
undefined grey area, before, as well as after their child reaches the age
of majority.
The fact that several asylum seekers have been arrested, detained, and
taken for deportation, without access to retrieve their possessions or
personal belongings, only serves to underline the absence of a right to
property, as well as the potential for abuse of police powers.
The Act thus legislates racialism onto the statute books, in that it leaves
a group of people who live here without full rights.
Furthermore, under Section 3 of the Act, although there is a right to
appeal the minister's refusal of refugee status, people can be deported
whilst their appeal is still pending. There is no requirement on the
minister which binds him to uphold humanitarian considerations, or even the
principle of non-refoulement, under which someone may not be sent back to a
country where there is the danger they may be persecuted. Under this Act,
there is only an obligation on the Minister to `have regard to' these
matters.
The government was in a hurry to pass the bill, to plug a legal loophole,
so that deportations could resume. And undoubtedly over the coming months,
deportations will resume.
Now the flood gates are open. (see box on the experience in some other
countries of deportation).
Some refugees have been waiting nearly a year for the decision on their
appeal. The legislation does not say anything much at all about the
conditions which will form the basis of a judgement as to whether a refugee
should be given asylum.
Relevant considerations for asylum
The Act merely says that the minister, in determining whether to make a
deportation order, shall have `regard to' such questions as the age of the
person, how long they are in the state, the family and domestic
circumstances of the person, the nature of the person's connection with the
state, though the Act does not go on to specify what the minister is to
make of these personal details.
Further, by way of insult to injury, the minister is to look at the
employment record and employment prospects of the person, though refugees
have been denied the right to work, despite some alleged differences of
opinion in the cabinet on the matter.
The Act further goes on to mention that the minister in his deliberations
should also have regard to the character and conduct of the person both
within and outside of the state, including criminal convictions, yet it is
a well known feature of an oppressive state that it will attempt to
criminalise political opponents. What's new?
The Act finally exhorts the minister to have regard to ``humanitarian
consideration, representations made by or on behalf of the applicant, the
common good, and consideration of national security and public policy,
insofar as they appear, or are known to the minister''.
Section 4 of the Act empowers the minister to serve exclusion orders `in
the interests of national security or public policy', a matter which is
left entirely to his discretion.
This piece of legislation has been condemned by many groups working with
refugees, including the Council, the ICCL, the Refugee Co-ordinator in
Amnesty International, Comhlámh and ARASI, as exemplifying enormous
confusion and misunderstanding, by its failure to distinguish between
immigration and asylum. The Act lumps these categories together and
considers their deportation, which, in the light of Minister Donoghue's
view that ``90% of refugees are bogus'' is a fairly consistent approach.
Nonetheless ignorant as well as bad law.
The bill establishes a review board of the work of the tribunal and the
minister, to report its findings to the Dáil every two years, starting in
the year 2001. It is faint hope to those who face immediate deportation.
Legislation to set up a Human Rights Commission, as a part of the
obligations undertaken through the Good Friday Agreeement, was published
last week, but will be of little assistance to those who face deportation
this summer, whilst the Dáil and a lot of other people are on holiday.
The procedures for applying for Asylum
Most refugees on arrival in Ireland have illegal status until they have
applied for asylum. They must immediately fill in a short questionnaire,
provided by immigration control or the Garda Síochána. They are then given
another form of some 84 questions which must be completed within three to
five days. There is no guarantee at all that the refugee will have access
to an interpreter or to legal aid in complying with either requirement.
Yet the long questionnaire is crucial to all future deliberations on their
application. Future interviews, which are held entirely within the
framework of quasi judicial proceedings, initially before a civil servant,
subsequently before a barrister, principally revolve around establishing
that the applicant is telling the truth. It is at best a hard question to
determine, not made easier by speaking through an interpreter, where
linguistic nuances, on either side, are missed, where cultural background,
or knowledge of the conditions existing in another country are not by any
means held in common between adjudicator and applicant.
Above all, flight from a country where you face persecution often ensures
that a refugee may well dispose of all evidence of who they are and where
they come from, yet this is precisely the evidence that a tribunal requires
once a refugee applies for asylum and personal details need to be
established.
The tribunal may be quite unaware of conditions in refugees' native lands,
or even attitudes to women who have been raped, or such cases as those of
Romanys from Romania, who were earlier in this century held in slavery.
The fact that Romanys are not held in slavery now in Romania does not
necessarily mean that the treatment of this group is anything other than
one of persecution.
It cannot be left to the average barrister or civil servant to recognise
the factors which at present lead to persecution of the Romanys in today's
Kosovo, or even an understanding of why the gypsies were amongst the first
imprisoned in the concentration camps of Hitler's democratically elected
regime of 1932.
The asylum seekers have the benefit of a linguistic interpreter, under the
act, ``if and where necessary or possible''. A thin guarantee indeed.
Police Powers
A spokesperson for the ICCL expressed grave concern over `rights of
detention' outlined in the Act. It is, under the Act, an offence to resist
deportation; someone charged or indicted, though not tried still less
convicted, can be deported on that ground alone; a deportee, who may be
suspected by a guard to have failed to comply with the provisions of their
deportation order, can be arrested without warrant and detained in a
prescribed place.
Where a person appeals a deportation order to the court, he or she may be
detained by the court, and furthermore the limitation of detention to a
period not exceeding eight weeks, does not apply to the case where court
proceedings challenging the validity of the deportation order are
instituted.
Where will these people be detained? Why are they to be denied the right
of all citizens to the presumption of innocence before proof of guilt, and
conviction?
The new law enshrines in statute a subclass of citizens, of people who are
in the state but are not given the benefit of the constitutional rights of
its citizens. It is a disturbing feature of the Act, particularly in the
context that most refugees seeking asylum into this state are black. In
this regard the Immigration Act is legislating racialism onto the statute
books in denying the rights of the citizen to refugees.
Where has the Ireland gone which, under good government, would take all
possible measures to suppress incipient racism; racism which is so
contagious, so easy a `solution' to social disadvantage, and which is so
prevalent near to home in countries only just across the sea, not to
mention our own?
Where has the Ireland gone which would give santuary to those many who have
been unjustly persecuted in their own lands? It has disappeared from view,
into the deepest recesses of the Departments of Justice and Foreign
Affairs: into a quagmire of injustice and ad hockery.
NEXT WEEK
There is another bill queuing for time before the Oireachtas, which is the
``Illegal Immigrants (trafficking) Bill, 1999. It is the other prong of
what many fear to be the Department of Justice's approach to the whole
question of refugees, stop them coming here in the first place. Next week,
Róisín De Rosa examines this bill and highlights some of the worst human
rights abuses that have resulted from the policy across Europe of forced
deportation of refugees.
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