Decisions on refugee rights should not all fall to judges

In a recent piece, this paper reported the comments of Mr Justice Gerard Hogan at the European Database of Asylum Law Conference, to which I also contributed (January 20th, 2014). The short report does not do justice to the extent or subtlety of Judge Hogan's comments. It should prompt reflection on the vital role of the judiciary in safeguarding migrant and refugee rights. If anything, in Ireland we ask too much of judges, leaving them to deal with issues that should be resolved politically, through legislation and good administration.

Assessing asylum claims properly matters a great deal – lives hang in the balance. Both the asylum seekers’ story and the country of origin conditions must be assessed. Ireland is not alone in this, and there is a wealth of guidance on how to do reliable status determination.

Certainly, the complexities involved do not justify procedures that drag on for years. A recent report shows overwhelming evidence that assessing credibility in asylum processing goes awry, leading to strong claims being rejected necessitating appeals and legal challenges. Granting swift positive decisions to those in need of international protection is in everyone’s interests, not least those of refugees.

There are two broad categories of persons to whom Ireland is obliged to afford protection. The first are Convention refugees: those who fall under the 1951 Convention on the Status of Refugees, having a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion.’ Ireland has had a process for examining such claims since the late 1990s. It seems one of the main problems with it, certainly in the past, is that many strong claims are turned down by officials at first instance, leading to appeals and judicial reviews. The overall recognition rate of refugee claims may be a crude indicator, but the 2013 figures do indicate more grants at first instance, a welcome development.


The second category to whom protection must be granted is those who face ‘serious harm’ if returned, for instance torture, or inhuman or degrading treatment. Under EU law, Ireland has agreed to afford these people ‘subsidiary protection’.

Unlike all other EU member states, Ireland treats these claims separately from the refugee procedure. Asylum seekers who do not fit under the refugee definition (say those fleeing war, but not persecution on political grounds) must go through the Convention refugee procedure first and only then apply for subsidiary protection. The legality of this odd procedural requirement is subject to ongoing litigation. Irrespective of its legality, its efficiency is questionable. Again, delays will result from the deliberate policy choices Ireland has made, rather than any inherent complexity in assessing claims. Refugee status determination takes time, but need not take years.

For many years, serious concerns have been expressed at the working of the Refugee Appeals Tribunal. It now has a new chairman, and some of its internal workings have been clarified. Its decisions are routinely challenged before the High Court, and it appears about half the time, either these cases are settled or the applicant's challenge succeeds.

Again, is this inevitable? In New Zealand for instance, judicial reviews of the analogous tribunal are rare, in single figures annually. The institutional emphasis there is on getting it right the first time. The delays exact huge costs. In particular, unlike all other EU member states, Ireland does not allow asylum seekers to work no matter how long the determination procedures drag on.

Forming ties
Difficult questions arise about how to treat rejected asylum seekers. If (and this is a huge 'if' in practice), their claims to refugee status, subsidiary protection and any other humanitarian concerns have been properly examined, then the question of the legality of deportation may arise. The issue of delay recurs here: If procedures drag on, people inevitably form ties with their place of residence, sometimes by having families. If Ireland has run a system that has in effect taken years to decide whether they will be allowed to stay, it is hard to justify visiting the harshest consequences of this delay on young children.

Again, all too often, it is left to the courts to decide on the legality of deporting families with young children who have grown up in Ireland, often knowing no other homeland. Judges must apply constitutional, human rights, and sometimes EU law in these cases.

However, should we really place families in the position where they have to make an application to the High Court to establish their right to stay? We could decide to have a bright line rule, either in executive guidance, or statute, protecting families from removal in such cases. There are many options, less costly, and less traumatic for the families involved, than making the High Court the forum for all these issues.

Vindicating the rights of refugees and migrants requires some difficult decisions, but they should not all fall to the judiciary. All arms of State, indeed all citizens, need to consider their duties to outsiders, and not just those who have lived among us for years. The most troubling conference contribution was that from the UNHCR European representative, a plea to recognise the mistreatment of Syrian refugees (undoubtedly refugees in every sense), some of whom have found themselves in unlawful detention or squalid reception centres in EU member states while trying to seek safety. Our moral (and in some cases our legal) duties extend beyond our shores. Their cases may never come to an Irish court. Who will act?

Dr Cathryn Costello is Andrew W Mellon university lecturer in international human rights and refugee law at the Refugee Studies Centre, University of Oxford