THE REFUGEE Appeals Tribunal (RAT) needs to be replaced by an independent appeals system for both refugee and immigration cases, run on judicial lines, according to former Supreme Court judge and President of the Law Reform Commission, Ms Justice Catherine McGuinness.
Ms Justice McGuinness was speaking at a seminar organised by the Irish Refugee Council and the Immigrant Council of Ireland, which was also addressed by the president of the British appeal tribunal, the Immigration and Asylum Chamber of the Upper Tribunal, Mr Justice Blake.
“One of the problems here is secrecy. The decisions of the Refugee Appeals Tribunal are only made available in a very limited way. The giving of reasons is very important in the common law system,” Ms Justice McGuinness said.
“[The secrecy] means it is very difficult for lawyers to advise their clients, and there is no coherent jurisprudence of the right of appeal. Very different decisions have come from different members of the RAT and some members have resigned from it for principled reasons.”
Judicial review was a very limited remedy, she said, as our jurisprudence meant if an expert body made a decision there must be a strong presumption that it was made correctly. The high number of asylum judicial reviews had created a lot of problems in the courts and had not served the people involved very well.
She said her experience of cases coming to the Supreme Court was that cases were settled the morning they were due to be heard, and the terms of the settlement were not revealed.
“This was not only a waste of the court’s time but also there was no reasoning, no establishment of rules or precedent, so it reduced the establishment of refugee and immigration law,” she said.
Mr Justice Blake said that all 700 decision-makers in the British asylum and immigration system were now judges and bound by the judicial oath to “do right by all manner of people . . . without fear or favour, affection or ill will”. He said Article 8 of the European Convention on Human Rights, the right to family life, was critical in maintaining the balance between the public interest in controlling immigration and the rights of those in the State for many years.
The UN Convention on the Rights of the Child was also of central importance and this required the rights of the child to be “a primary consideration” in all administrative decisions. Supreme Court judge Baroness Hale had recently ruled the rights of a UK-born child were the starting point of analysis of a case involving family rights.
Speaking at a different event in Dublin at the weekend, English solicitor Gareth Peirce said the last nine years had been a non-stop pitched battle to save the right to a fair trial.
Ms Peirce was in Dublin to address a meeting of the Irish Centre of European Law.
She said the right to a fair trial concerned “dry procedural rights” and when they were interfered with either overtly or covertly there was usually no outcry.