Supreme Court judge critical of ‘inefficient’ asylum process

A Supreme Court judge has said the system of processing asylum applications serves neither the State nor asylum seekers and is "costly", "inefficient" and "counter-productive in its effect".

While the system has meant “significant” costs for the State, the human cost is “not so easily conveyed”, Mr Justice John MacMenamin said.

The bifurcated system of separate applications for asylum and subsidiary protection lead to “vast” litigation here along with references to the European courts, he said. It was “hard to understand” the logic of having lower thresholds for judicial review of subsidiary protection decisions than for asylum applications.

This system meant many cases, including involving a Malawian family in Ireland since 2008, took years during which asylum applicants lived in a "state of suspense" with "no certainty" about their future and often living in "inadequate and substandard accommodation".

He awaited evidence an effective and speedy decision making process will necessarily create what some term a ‘magnet’ effect attracting “economic migrants” and was not persuaded an inefficient system can have a deterrent effect on what are termed “unmeritorious” asylum applicants. “Rather, I suspect, the contrary is true.”

While there are undoubted abuses of the system, many people, whatever the merits of their cases, frequently had young families with children who became established here and “often knew no other home”. The case before the court was an example with one of their children born here in 2008 and the other living here since aged one.

‘Off the radar’

An immigration system must also be capable of enforcement but, while the High Court upheld deportation orders for this family in 2012, they went "off the radar" in the asylum process but continued to be registered with the Department of Social Protection as being employed here for much of the time before re-engaging with the immigration process in 2015. It was not suggested the State took action to trace them but to do so would not have been difficult, he added.

He hoped the International Protection Bill, anticipated to be fully operational by the end of 2016, will result in an “effective”, “coherent, timely and humane” system.

The judge was among a seven judge Supreme Court which unanimously refused an application by the State aimed at revising a legal test on foot of which the Malawian couple and their children had secured an injunction, pending appeal, restraining deportation.

The Court of Appeal had granted them an injunction restraining their deportation pending their appeal against a High Court decision dismissing their challenge over being refused subsidiary protection and upholding deportation orders.

In his Supreme Court judgment, Mr Justice Frank Clarke said it was being invited, "once again", to revisit the criteria for an order which essentially restrains deportations pending final resolution of immigration law proceedings.

He dismissed claims by the State the Court of Appeal had erred in finding the test set out in a 2012 Supreme Court “Okunade” judgment was applicable to the family’s application for an injunction.

That test involves deciding whether there is an arguable case and considering various factors, including consequences for an applicant if an injunction is refused and the public interest in an orderly asylum system, before deciding an injunction application.

The family were refused refugee status in decisions made from 2008 and were also later refused subsidiary protection and leave to remain. Then took High Court proceedings aimed at quashing the refusal of subsidiary protection but lost in the High Court in 2012. They went “off the radar” in the asylum process but in 2015 resumed contact with the immigration authorities seeking consent to a stay on deportation pending appeal against the High Court decision.

When that stay was refused, they secured an injunction from the Court of Appeal.