Is Ireland complying with its international human rights obligations regarding the treatment of asylum seekers? Unfortunately, commentators' responses to this fundamental legal question are as often as not based on their general attitudes towards immigration, rather than on a rigorous analysis of states' obligations under international human rights law.
It is easy to confuse the debates regarding voluntary and involuntary migration. For example, Irish refugee policy is often discussed in the context of our own history of economic emigration. This can have a detrimental effect on the Irish asylum debate, by shifting the focus away from narrower, but more relevant, legal issues confronting forced migrants.
The main casualty of the legally muddled and politically polarised debate on Irish asylum policy has been the abandoned 1996 Refugee Act. This is unfortunate, since much of that act demonstrates that when international legal standards are complied with, there need be no conflict between those seeking tighter border controls and those wishing to establish a fair, efficient and humane process to determine asylum claims.
The vacuum which has resulted has led to two worrying trends: a dilution of the right of asylum seekers to fair determination procedures, and a tendency on the part of Irish officials to assume that abiding by current European Union practice is, by definition, to comply with our international human rights obligations.
First, take the determination procedures and the many disturbing discrepancies between European states.
For instance, protection was provided to 65 per cent of Iraqi Kurds who applied for asylum in Switzerland last year, but to less than 2 per cent of those Iraqi Kurds who sought refuge in Greece.
So technical issues of administrative law pose a threat to asylum seekers, such as the more than 1,500 Iraqi Kurds whose claims were rejected by Greece. The gradual erosion of safeguards in asylum procedures throughout Europe poses a risk that asylum seekers may end up back in a territory where they will face persecution. When the Department of Justice abandoned the 1996 Refugee Act and introduced an interim set of procedures, they asserted that it was in conformity with international law and the protections of the Refugee Act. Yet, for the significant proportion of asylum seekers who are deemed to have a claim that is "manifestly unfounded", the interim procedures clearly deviate from international human rights standards, as claimants no longer enjoy the right to an appeal by an independent review body or officer.
Under Ireland's international legal commitments this safeguard is not a discretionary procedure. The European Committee for the Prevention of Torture has explicitly affirmed that "in view of the potential gravity of the interests at stake, the Committee considers that a decision involving the removal of a person from a State's territory should be appealable therefore to another body of an independent nature prior to its implementation." Under Ireland's new accelerated procedures, the only review that is enjoyed by claimants is a paper review by a more senior officer within the Department of Justice. Second, as we await revised refugee legislation, it is important that European asylum practices are not confused with the minimal standards consistent with international human rights obligations. The Department of Justice claims that the practice of returns to countries considered to be "safe", through which asylum seekers had travelled en route to Ireland, is an established part of customary international law.
This is a novel interpretation, contradicting Resolutions adopted by EU Member States, the interpretation of refugee law by the United Nations High Commissioner for Refugees, and international scholars alike. As any student of international law would point out, customary international law is extremely difficult to establish, and the simple fact that some governments in the international community implement some form of third-country policy does not custom make.
It would be a great tragedy to sacrifice Ireland's strong reputation in the international human rights arena by adopting legal practices similar to those in effect on other EU member states, which have already been discredited.