`Safe third country' principle may yet undermine Ireland's rights obligations
For some, the Supreme Court ruling in the Anisimova case heralded the end of Ireland's asylum crisis. However, viewing that judgment as a carte blanche for mass deportations misinterprets the scope of the judgment, international legal obligations and, most importantly, the reasons for Ireland's perceived refugee crisis.
The significance of the judgment lies in its acceptance of the "safe third country" principle. Under international law, Ireland is obliged not to return an individual directly, or indirectly, to a territory where their life or liberty may be in danger.
States may, however, return asylum-seekers to another jurisdiction through which they have travelled if they have sought protection in that third state, or reasonably could be expected to do so.
At least 60 per cent of asylum seekers arriving in Ireland have transited through another EU State, and hence will be subject to the "safe third country" principle. The Anisimova judgment implied that the applicant could be returned to the UK, in the absence of a formal, independent appeals process: the more informal procedures followed by the Minister were deemed to have been adequate.
It did not remove the right of applicants to contest their removal to third countries on protection grounds. But it did implicitly deny applicants the safeguards afforded by an independent appeals process, opening the possibility that genuine refugees may be placed at risk.
However, the judgment did not affect asylum-seekers currently arriving in Ireland, as they will be covered under the implementing provisions of the Dublin Convention.
For the latter group, the risk remains that the "safe third country" principle will ultimately undermine Ireland's human rights obligations. The Dublin Convention permits host states to remove an asylum-seeker to another Dublin Convention signatory state without any investigation into the adequacy of that country's administrative procedures and the quality of the assessments that asylum-seekers may receive there.
Under the implementing regulations, the only grounds of appeal to be considered relate to technical issues of family, travel, residency and visas. There is no provision which explicitly permits review of the safety conditions in the receiving EU state.
This ignores the unambiguous position of the United Nations High Commissioner for Refugees with regards to obligations under the 1951 Convention, which require that asylum-seekers be offered the opportunity to rebut any presumption that they may have, or could have, found protection in a safe third country. For this right of rebuttal to be effective, there must be a right to an appeal prior to removal.
The Dublin Convention confers a de facto seal of legitimacy on the asylum laws and practices of each member state, regardless of their protection records. Yet studies reveal that asylum-seekers have been returned to their countries of origin through a series of "chain deportations" originating from EU member-states.
They also indicate that these states have returned asylumseekers to countries which have neither signed the 1951 Convention, nor comply with its principles in practice. Moreover, there is overwhelming evidence that asylum seekers are at greater risk in some EU countries than in others.
For example, in 1992, 97 per cent of Iranian asylum-seekers were eventually granted asylum status or leave to remain in the United Kingdom, compared with 13 per cent in Denmark, 55 per cent in France and 19 per cent in the Netherlands. For Sri Lankans, the figures were 97 per cent in the United Kingdom, 35 per cent in Denmark, 70 per cent in France, and 9 per cent in the Netherlands. To deny asylum-seekers the right to rebut the presumption of their safety in a "safe third country" defies international human rights obligations, let alone reason.
Media headlines speak of "floods" of refugees inundating Ireland, but this is not the true source of Ireland's perceived refugee crisis. Rather, administrative paralysis is to blame: last year the Department of Justice rendered a mere 66 asylum decisions. The current application backlog is now about 4,000 cases.
The high costs of these delays are suffered by all parties. The State must shoulder the social welfare costs of the prolonged stay of asylumseekers, a proportion of whom ultimately will not be entitled to protection under Irish or international law. Had those resources been used to process applications, fewer non-EU nationals would try to abuse the institution of asylum, in order to circumvent strict EU immigration controls.
The failure of authorities to make expeditious and fair determinations invites those with no valid claim to asylum to enter and remain in Ireland for a prolonged period of time. For genuine refugees, the recent trauma of flight is compounded by the fear of potential return to a country where they are at risk of persecution. This is exacerbated by the extended period during which they must wait for their determination, and their heightened vulnerability due to the absence of the full procedural safeguards promised, but yet to be delivered, by the 1996 Refugee Act.
As Government delays fuel misinformed intolerance towards the asylum community, it is genuine refugees and asylum-seekers that are left to shoulder the cost.
Rosemary Byrne is a lecturer in inter- national and human rights law at Trinity College Dublin