Council of State to test validity of asylum Bill

While there has been much talk about the new law governing the Irish asylum process being rushed through the Oireachtas during November and December, the concern of the President, Michael D Higgins, in calling a meeting of the Council of State today is solely in relation to the Bill's constitutional validity.

When the Council of State convenes to consider the International Protection Bill 2015, it will be asked to advise the President in particular as to whether aspects of the Bill are in conflict with the Constitution’s definition of the family.

The new Bill will provide for less discretion on the part of ministers for justice in deciding whether extended family members can come to Ireland to live with people who have been granted asylum.

For example, under the proposed new regime, a child who is granted asylum but whose parents are dead might not be allowed to have an uncle come to live here under the family reunification provisions, although such a person might be allowed to come here under the current regime.

Likewise, the new regime will be more restrictive in relation to stepchildren.

Mr Higgins’s office has said it is concerned that sections 56 and 57 of the Bill, which are concerned with family reunification, might be in conflict with the Constitution, and in particular article 42A, the provision that was introduced following the 2012 referendum on the rights of the child.

It so happens that the provisions which are now being examined are ones that have been causing concern among refugee support groups, which believe that the proposed new law will restrict family reunification.

Groups such as the Cork-based Nasc organisation say the new provisions mean that for every person granted asylum in Ireland, a lower number of people will, in time, get the right to come and live here because of their family connection with that person.

Streamlined application

The new Bill introduces a more streamlined application process for refugees, which will probably result in applicants spending less time in direct provision.

Such a development is something that has been sought for some time by all concerned with the asylum process.

The calling of a meeting of the Council of State is a serious matter. It is only the second time Mr Higgins has called such a meeting, the earlier one being in 2013 in relation to the Protection of Life During Pregnancy Bill.

If he decides, having considered the view of the Council of State, to send the Bill to the Supreme Court, and that court then rules that it is in keeping with the Constitution, the constitutionality of the Bill cannot be challenged again.

If he signs the Bill into law, however, its constitutionality can then be challenged at a later date.

Mr Higgins, in deciding whether to sign a Bill into law, reads not just the Bill but the associated debates in the Seanad and Oireachtas, and also any related submissions he may receive from the public.

Nasc has pointed out that the Irish-language word for family used in the Constitution is “teaghlach”, which translates as household, and that this is a reflection of the fact that one of the framers of the Constitution, Éamon de Valera, was raised by extended relatives rather than a nuclear family.

The Council of State includes three categories of members: ex-officio members, such as the Taoiseach, the Tánaiste, the Chief Justice and the Attorney General; former officer holders, such as former presidents, taoisigh and chief justices; and appointed members, of whom there are seven.