Vision of Refugee Act is undermined

Aine Ni Chonaill is many things, but you can't call her dishonest. Her politics is revolting, her denials of racism hop like a greasy frog from her anti-immigration-spouting mouth. But when she launched her Immigration Control Platform at Ennis this week, at least she spoke her mind.

Whereas John O'Donoghue TD, Minister for Justice, solicitor-turned-politician, whose claim to fame is his support for Zero Tolerance, has taken it on himself to introduce new regulations which are fundamentally at odds with the Dail's 1996 Refugee Act.

The net effect has been to worsen the legal situation for refugees in Ireland, to prolong the backlog of cases which so panics tabloid thinkers, and to ensure that, more than 40 years on, Ireland is still not operating in full the Geneva Convention - and has broken the spirit, if not the letter, of its alleged new European pluralism. Meanwhile, democracy has been treated cynically.

How could it happen? Leaving to one side the uneasy relationship with democracy still experienced in some quarters of Irish society, the facts are as follows. Using a relatively minor legal action as a mask, Mr O'Donoghue and his Department have redrafted basic regulations concerning asylumseekers and seem to have taken unto themselves powers originally assigned elsewhere.

Writing in December at the Minister's direction to Ms Hope Hanlan, UN High Commissioner for Refugees, a senior Department official advised of new administrative procedures to supplant those drafted at the time of the 1985 Schengen "open borders" agreement, one which Ireland did not sign, ostensibly because the UK did not.

Gone from the new regulations is all reference to the refugee's right to legal representation, gone are the fairly reasonable time limits of the 1996 Act, along with all mention of special procedures for favouring family members of those already granted asylum. Gone, too, is the proposed Independent Refugee Applications Commissioner, to be replaced by a person who sounds suspiciously like a civil servant. Why?

Instead, the refugee may bring along a "local representative" who must not speak during proceedings; the refugee must fit the inevitably frantic paperwork into a claustrophobic time frame; and must not breach a strange new concept called "public policy", which seems to substitute for that of "public order" but carries potentially dangerous legal implications.

Not specifically mentioned, but implied nonetheless, is the quasiconcept of a "safe third country", the idea that a refugee can be deported to a place of safety if she/he cannot be admitted in the receiving country. This term, which has no standing in international law, is now bandied round by bureaucrats as if it were a legal concept too, whereas there are in fact no mechanisms in place for ensuring that the "safe third country" will prove to be exactly that. Much of Ireland's attitude to deportation is built on this notion.

Before the Refugee Act passed through the Oireachtas with allparty support, Mr O'Donoghue had criticised the then minister, Nora Owen, for ignoring human suffering and the will of the Irish people by her alleged prevarication and procrastination.

"The status of refugees is an issue which should strike a chord with every man, woman and child here who has any grasp of Irish history," he orated like a latterday Daniel O'Connell, "our history books being littered with the names and deeds of those driven from our country out of fear of persecution."

But, two years later, the situation is worsening fast. The reality of the Department's delays and distortions is that the refugee issue has been allowed to become a media spectacle. Queues standing in the rain shock pluralists, but frighten those who fear their own little patch will be somehow tainted. Thus is negative public opinion built up to a point where tougher regulations may be tolerated. Had the Minister and his Department intended to alarm the public, they couldn't have invented a more effective strategy.

And public opinion is already turning. A survey showed that almost one-third now favour a tough response to what is being billed as a refugee crisis, even though Ireland's desirability rating makes it fourth last in the EU asylum application stakes. (1996 figures record 1,179 applications, with 119 granted.)

Ireland, like the UK, is willing to cash in on the co-operative policing measures arising in the wake of the Schengen agreement, but has persistently steered clear of any commitment to take up the human burdens caused by what Jacques Santer describes as "a sea of poverty" surrounding the European "isle of richness". With experts due to report on border controls to the EU Ministers meeting in Brussels on January 26th, the Irish public is already softened up for yet another assault on the European ideal.

But how could a minor legal action be permitted to cause such delays? The situation becomes curiouser and curiouser in the story of former Justice Minister and MEP Patrick Cooney's action in protest at the imposition of an age limit halfway through the process of filling the new post of Independent Refugee Applications Commissioner. No age limit had been advertised, and the job was a three-year contract without pension implications.

Mr Cooney was not called for interview, but those who were called received a letter as they chewed their nails outside the interview room last May. In a rather clumsy act of legal ass-covering, the letter explained this competition was now being managed under a different sub-section than had been advertised. Although sources indicate a candidate was recommended for the post, matters could not be taken further because of Mr Cooney's injunction.

Had the Department of Justice settled the action, or called for a speedy court hearing, the matter would now be dead and gone, and an independent Applications Commissioner would be in place.

As one of the first major independent agencies set up by the Department in recent years, the new commission could have paved the way for other recommended initiatives such as an independent Prisons Board.

Scenes of queues would probably not have made headlines over recent months, and a less alarming, less confrontational debate about refugees and racism might well be taking place.

But there is no evidence to indicate that the Department has tried to expedite matters. At the time of writing, the State still has not filed its defence in the Cooney case, and the legal contest looks set to drag on. The central vision of the Refugees Act has been effectively scuppered, and the injunction used as a device to stop, or at least delay, the establishment of a separate, independent office. Like many issues involving pluralism and tolerance, the case of the revolving Refugee Act is a perfect example of Irish blather around the subjects of tolerance and openness. Foreigners are grand as long as Bob Geldof or Mary Robinson is out there batting on our behalf, but a deeply-entrenched closure in many State institutions, particularly in the Department of Justice, makes it likely their efforts are used to compensate for our inactivity, and for our failure to acknowledge fairly the implications of being European, let alone being human.

The isolationism which is a feature of our history, and the triumphalist way it was once taught, now climaxes in the selfcongratulatory purrs that accompany the multi-literate Celtic Tiger, whose well-padded haunches are groomed by the achievements of various Nobel prizewinners and rock bands, but whose actions confirm yet again the parish-pump, exclusivist mindset which lies at the heart of so many Irish breasts. No matter what we claim.

No, we can't permanently admit everyone who comes to Ireland. But we now risk implementing a deadly version of the late John Hinde's Ireland of the Welcomes, a place which prefers anonymous, short-stop tourists and multinationals to the fathers and mothers, brothers and sisters who may need to share our daily bread.

To those who have little, fearing that someone will take away your portion is understandable. But Aine Ni Chonaill's merchants of Ennis insisting on their pound of flesh pale in comparison with the steely attitudes in the Justice headquarters on Stephen's Green. Unless other politicians can somehow stop this process, these new regulations may eventually be given the authority of amending legislation, and the democratically-expressed demand for an independent commissioner will be gone for good. In the meantime, the possible feast of elitism, prejudice and power this represents signals a contempt for democracy which insults us all.