After a week of political grandstanding between the Irish and British governments over the movement of asylum seekers between their two countries, Ministers met in Dublin on Tuesday to plan their next move.
A statement last week by Minister for Justice Helen McEntee that more than 80 per cent of asylum seekers are entering the Republic over the land border with Northern Ireland was followed by comments from Tánaiste Micheál Martin, who said the British government’s highly controversial Rwanda policy was sending fearful migrants into Ireland.
These words were seized upon by British prime minister Rishi Sunak who tried to hold the situation up as an example of how his policy was working.
On Monday, Sunak doubled down and said: “We’re not going to accept returns from the EU via Ireland when the EU doesn’t accept returns back to France where illegal migrants are coming from.”
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After all the political football, the focus landed firmly back on Ms McEntee as she met Cabinet colleagues on Tuesday to set out what the Irish response would be.
It is worth pointing out that an operational arrangement on returns has been in place between Ireland and the UK since November 2020. This formed part of the protection and operation of the Common Travel Area. However, there have been no legal obligations on returns since Brexit, and that works both ways.
Covid-19 put a halt to any asylum returns under the arrangement, regardless.
The Government had added a new section to the International Protection Act 2015 which would allow the Minister for Justice to designate, by order, a third country as a safe third country.
Complications arrived in the form of a High Court judgment in March of this year which found the Government’s approach was legally flawed as it failed to require the Minister to be satisfied that a person would not be subjected to serious harm when returned to that third country. A gap between EU legislation and Irish legislation was at issue.
“The High Court effectively ruled that we had not properly transposed an EU asylum directive, which we actually had not opted into. The Minister will appeal this,” a Government source said on Tuesday.
The judgment effectively halted plans to begin returning inadmissible asylum applications to the UK.
The Cabinet agreed on Tuesday to new measures to address these issues.
The first is through new legislative measures which will allow for the resumption of returns of inadmissible international protection applicants to the UK.
A Government source said the new measures would add an “extra layer” of consideration for the Minister when going through the process to designate the UK as a safe third country.
At present, the Minister has to be satisfied that, in the relevant country to be deemed safe, life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion. She must also be satisfied that there is no danger that a returned person would face torture or cruel, inhuman or degrading treatment.
Under a new extra layer, or extra test, the Minister will also consider the potential for serious harm which could, for example, be posed by a war or civil war.
The big question is this: when the amendment to the legislation is passed and safe third country status is conferred upon the UK, and if the British government continues to assert publicly that they are not accepting the return of asylum seekers from Ireland, will the Government proceed with the plans?
Coalition sources say the answer is yes but others point to the need for a joint agreement between the two countries if the issue is to be resolved at all. The Border is porous and the immigration issue works both ways is the school of thought.
In the meantime, the Government believes that the biggest lever at its disposal is its plan to ramp up processing times for the country providing the highest number of arrivals, which at present is Nigeria. They believe this will see large numbers returned to Nigeria, and this could be the more potent and effective fix.
On Tuesday, Taoiseach Simon Harris appealed for a “sense of calm” from all sides.
But as the last week has clearly shown, looming elections and domestic pressures can create a political tinderbox on both sides of the water.
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