ANALYSIS:Lawmakers must consider a range of views on the new Immigration Bill, writes Carol Coulter.
THE IRISH Human Rights Commission is an independent statutory body responsible for overseeing Ireland's human rights commitments. One of its most important tasks is to review pending legislation to ensure it complies with the Irish Constitution and international human rights conventions. Since the incorporation of the European Convention on Human Rights into Irish law, there is a particular focus on the jurisprudence of the European Court of Human Rights.
Its comments on the Immigration, Residence and Protection Bill are therefore valuable.
These comments draw attention to areas of the Bill which, in the opinion of the commission, fall short of international human rights standards. It points to cases where similar provisions in other jurisdictions were criticised by international bodies, particularly the European Court of Human Rights.
This court, it points out, has clearly stated that immigration law and policy must be exercised in a manner consistent with ECHR obligations, emphasising the importance of striking a balance between the rights of those involved and the interest of the State in controlling the entry of non-nationals. Ministerial discretion cannot be expressed in terms of unfettered power, it states.
It points out that the Committee of Ministers of the Council of Europe recommended training of border officials to ensure unimpeded access to the asylum process and the prevention of "refoulement" - the return of people to countries where they may be in danger.
The European Court of Human Rights has also already offered guidance on the issue of subsidiary protection, available to those who do not meet the criteria set by the Geneva Convention. The commission points out that the definition of danger can include generalised violence.
The Bill allows for people to be sent back to countries or parts of countries designated as "safe". The ECHR has found that the person must be able to travel to the "safe area" and live there.
The detention of those seeking protection, provided for in the Bill, can only be in the most exceptional circumstances, and it points out that the Committee for the Prevention of Torture has found Garda stations and prisons to be unsuitable places for detention.
Ireland's international obligations are not confined to those relating to immigrants and refugees, and the commission says that the Bill should lay down standards for the treatment of children in this process .
The IHRC draws attention to the guidelines that exist internationally on the asssessment of the credibility of protection applicants. These are based, not on their personal credibility, but on the credibility of their claim for protection. It recommends that these guidelines be adopted by those hearing applications or appeals.
It points out also that international best practice requries the publication of all decisions of appeals bodies, so that consistency is developed.
Referring to the removal of a person from the State, the commission points out that this could amount to a serious interference with a number of constitutional and ECHR rights, including the right to life, the right to bodily integrity, the right to be free from torture and the right to private and family life. Under the Bill a person can be summarily deported if it "appears" to a member of the Garda Siochana or an immigration officer that he or she is unlawfully in the state.
Without being given notice, he or she could not enforce their constitutional or ECHR rights, it states.
When the scheme of the first version of this Bill was published, the IHRC made similar observations on ministerial discretion, detention, safe countries of origin, unaccompanied minors and access to decisions of the Refugee Appeals Tribunal. These were not reflected in the second version of the Bill.
If no note is taken of the international jurisprudence in the area, the Bill, as presently drafted, lays Ireland open to future litigation in both the Irish and European courts.