Is State abusing procedures for asylum-seekers?

Something very disturbing is happening to the way in which applications for refugee status are being processed in this State

Something very disturbing is happening to the way in which applications for refugee status are being processed in this State. According to Department of Justice figures, highlighted by the Refugee Protection Policy Group (RPPG), 4 per cent of asylum applications were determined to be "manifestly unfounded" in 1999. The overall figures for the first five months of this year show that figure to have leapt to an astonishing 35 percent. Even more troubling, in April and May of this year 55 per cent of claims were found to be "manifestly unfounded".

The United Nations High Commission for Refugees has recommended that a case should only be deemed manifestly unfounded if it is "clearly fraudulent" or not related to the criteria for refugee status laid down in the 1951 Geneva Convention nor to any other criteria justifying the granting of asylum. In other words, it should apply to a very narrow category of claims.

The most serious aspect of all this is that once a claim for refugee status is found to be "manifestly unfounded", it is subject to accelerated procedures or fast-tracking.

This means that the applicant is denied a further oral interview and an appeal will be based only on a review of the documentation of the case. To access even this limited review, an asylum-seeker must lodge a written appeal within seven days.


Can we really believe that these figures represent a genuine rise in clearly fraudulent claims? A minister addicted to the word "bogus" would certainly be happy if that were so.

The truth is more likely to lie in the fact that a report on comparative refugee law, commissioned by the Department of Justice, found that the Irish criteria for deciding whether a claim is manifestly unfounded are the most wide-ranging within the EU.

The criteria in some instances are as vague as the Refugee Commissioner being "satisfied" that the applicant's reason for not returning to his or her country does not relate to a fear of persecution. This contradicts the international standard that those who claim persecution are entitled to a substantive review, and should not be the subject of accelerated procedures.

The astonishing rise in claims being found to be manifestly unfounded also coincides, unsurprisingly, with an embarrassing backlog which the Government is anxious to clear. It is wrong that manifestly unfounded procedures should be used as an administrative mechanism to clear a backlog.

Compare this to Denmark where manifestly unfounded procedures are part of a well-resourced system with built-in safeguards for the asylum-seeker. If a claim is found to be manifestly unfounded the person is entitled to a second oral hearing with a new interpreter before an independent body.

In 1999 in Denmark only 8 percent of claims were found to be manifestly unfounded. Of those cases which went to appeal, 14 per cent were eventually granted refugee status or equivalent protection.

Deciding whether an asylum-seeker's story is credible is extremely complex and accelerated procedures are not a suitable means of establishing the truth of claims. It is well documented that those suffering from the traumatic after-effects of torture and persecution do not trust authority easily.

Take the case of a woman who has been raped as part of ethnic persecution. She will not look her interviewer in the eye and spill out her story. She may well appear evasive, particularly if she comes from a culture where such a crime committed against her is seen as shaming her family. Such a person is most in need of a fair appeals system and at the moment she is unlikely to get it.

Liz O'Donnell's indictment of the refugee situation as a shambles begins to look more true by the moment. Not only do we have this abuse of the manifestly unfounded procedure, with the net result of denying some asylum-seekers access to a proper review, we also have the referral by the President to the Supreme Court of Sections five and 10 of the Illegal Immigration (Trafficking ) Bill.

This Bill, which purportedly set out to deal with the trafficking of human beings, suddenly sprouted amendments which deal with very questionable additional limitations of asylum-seekers' rights.

Section five of the Illegal Immigrants Bill declares that the only option available to an asylum-seeker facing deportation is to seek a judicial review. It also sets a limit of 14 days in which an asylum-seeker can look for a judicial review, in contrast to Irish citizens who have six months.

Section Ten greatly increases the powers of arrest and detention available to the Garda following the serving of a deportation order. Major concern has been expressed by non-governmental organisations and the Opposition that these powers are draconian.

The kindest thing which could be said about Government legislation in the last few years is that it has been reactive and crisis-driven. Perhaps the Government is gambling on the fact that the complexities of asylum procedures will cause most people's eyes to glaze over and their jaws to slacken. Perhaps the Department of Justice occasionally feels a little like that itself.

The advent of the Refugee Protection Policy Group, which will publish academic position papers, is a very welcome development and hopefully the Department of Justice will see it as such. The main thrust of the RPPG is to provide a pool of voluntary expertise in the legal area.

The group, which meets regularly in Trinity College, is made up of academics, barristers, solicitors and others with longstanding experience in the field of asylum-seekers. Some have experience of comparative legal frameworks in North America, Scandinavia and other countries.

While the Department of Justice has made tentative moves towards involving NGOs, the culture in that Department traditionally has been defensive and security-oriented. To be fair, the culture of NGOs, who often see themselves as the knights on the white chargers, has sometimes not helped either.

Many countries have much longer experience both of refugees and of constructive liaisons between NGOs and the state. Where the NGOs elsewhere receive generous state funding, there is much less of a them and us situation. For example, in Denmark it is not unusual for someone who worked in the Danish Refugee Council to later work in Immigration Services or with the UNHCR.

The RPPG fits neatly into the emphasis on involving civil society in refugee policymaking which emerged at the EU summit at Tampere in October. The RPPG sees no merit in attacking the Government. Instead, it sees itself as a resource, bridging the gap between those who are in touch with pragmatic problems, such as what happens when an interpreter is not provided, and the more academic research needs of those in the Department who are charged with formulating legislation.

It remains to be seen whether policymakers will exploit the expertise of this group or whether injustices, such as denying asylum-seekers a proper review procedure, will continue to happen.