EU refugee treaty takes effect, but Ireland still has no law on asylum

What an irony that the harmonisation of EU asylum laws, which comes into force next Monday, should bear the name, the Dublin Convention. After all, this State is unique in having no law covering asylum-seekers, and in having based decisions on whether to grant refugee status on a single letter written by a Department of Justice official in 1985.

Even our aliens legislation is hopelessly out of date. This was drawn up in the 1930s, when the main imperative was to keep Nazi spies out of the country.

A system developed to deal sleepily with a trickle of maybe 50 asylum-seekers a year is creaking audibly now that this number has increased to 100 a week. Yet the response from the authorities, by turns tardy and panicky, risks tarnishing Ireland's good reputation in the area of human rights.

The Dublin Convention comes into force in the 12 states which were EU members when it was agreed at the Dublin EU summit in 1990; Ireland is the last memberstate to ratify the agreement.

Widely seen as another step along the road to "Fortress Europe", the convention aims to harmonise asylum procedures between the member-states. Each application for asylum will be examined by a single state, generally that in which the applicant first sets foot.

No longer will asylum-seekers be able to try their luck in several jurisdictions, which can take years. If their single application for refugee status is unsuccessful, they can be deported to whence they came.

These arrangements make it highly unlikely that Ireland will have to examine a large number of applications. This is because most people coming here from outside the EU have to pass through another EU state first.

However, the weak link here is between the UK and Ireland where, until this summer, no immigration controls have ever been applied.

For this reason, the then Minister for Justice, Ms Owen, moved to close this loophole in June, on her last day in government.

Ms Owen's directive gives immigration officers the power to control people arriving from the UK so as to determine whether they should be given "leave to land".

No one is questioning the right of the authorities to determine who should be let into the State. And most people recognise there is a problem with illegal immigration which has to be dealt with.

However, the content of the new procedures, and the way in which they were introduced, is almost certain to land Ireland in trouble with international human rights groups.

First, they were introduced without the normal prior consultation with the UN High Commissioner for Refugees. A Department of Justice official wrote to the UNHCR in London on the day the amendment to the Aliens Order was introduced.

Second, the power of immigration officers to refuse leave to "land" - even though the person would already be on Irish soil - is a new distinction.

The 1985 letter, which has governed procedures up to now, states that an individual "will not be refused entry or removed until he has been given an opportunity to present his case fully, his application has been properly examined, and a decision reached on it".

Since the new procedures were introduced, almost 500 people have been sent back. Twenty of these sought asylum, but they were refused permission even to apply.

These 20 people are the clearest, though not the only, victims of the new rules.

The key human rights concept here, as laid down in the UN Convention on Refugees and the Refugee Act, is that of "refoulement". This means, in the words of the Act, that a person will not be expelled to any state where "the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion".

It cannot automatically be assumed that a person who is sent back to another EU state is safe. An Iraqi, for example, could be at risk of being killed in states where Government agents are at large.

Some states are happy to deport people to countries with poor human rights records. An English judge recently decided against sending a Moroccan asylum-seeker to France for that reason.

Another anomaly in Ms Owen's order, which purports to supersede the 1985 letter, is that it applies to people arriving from Britain and Northern Ireland only. Does this mean that the more liberal 1985 arrangements still apply to arrivals on the ferry from France?

It is also worth noting that in 1991, the High Court held that the 1985 letter was binding on the Minister for Justice.

The presence of immigration checks on buses and trains from the North must surely represent another nail in the coffin of Articles 2 and 3 of the Constitution. If the State consists of the entire island of Ireland, how then can the authorities prevent people travelling to and from the North?

Ms Owen's handiwork made no provision for appeals or access to translators, and took no account of cases where family members were already in Ireland. From next month, the Dublin Convention will rectify some of these shortcomings, by providing an independent appeal process.

Meanwhile, the Refugee Act, passed with all-party support by the Oireachtas in June 1996, continues to gather dust.

This widely-praised piece of legislation would have handed the processing of asylum applications over to an independent commissioner. Provided suitable resources were provided, it could have dealt quickly and fairly with the backlog of 3,000 cases which has built up.

By permitting Ireland to send would-be refugees back to the UK, the Dublin Convention effectively allows us to export another one of our problems. But this should not allow our politicians off the hook for their shameful failure to legislate in this area.