ANALYSIS:The UN's refugee commissioner warns parts of the Bill fall short of international best practice, writes Carol Coulter, Legal Affairs Editor.
THE OFFICE of the United Nations High Commissioner for Refugees (UNHCR) deals with states that receive refugees, and attempts to assist them in maintaining standards in how they are dealt with. It normally does so through diplomatic channels, rarely commenting on individual states' policies.But its mandate includes commenting on pending legislation.
The UNHCR has praised Ireland's regime for catering for refugees in the past. This is all the more reason, therefore, to pay great attention to its careful analysis of the Immigration, Residence and Protection Bill currently before the Oireachtas.
While it welcomes some aspects of the Bill, which brings ad hoc refugee and immigration legislation together into a coherent whole for the first time, it warns that aspects of it fall short of international best practice. The areas it is particularly concerned with include access to the State, the "non-refoulement principle", access to fair determination procedures, full enjoyment of refugee rights and the treatment of vulnerable people like children and torture victims.
The principle of non-refoulement, based on Article 33 of the 1951 Refugee Convention, is that a person should not be sent to a country where his or her life or freedom would be threatened because of his or her race, religion, nationality, membership of a social group or political opinion.
The UNHCR is concerned that sections of the Bill allow for a person who might be in need of protection to be summarily sent back without their claim being properly examined, in violation of this principle. It states that the Bill should be amended so that no one would be excluded from the State until there had been a prior assessment of their protection needs. It also recommends it should include a reference to a judge's obligation to assess whether a person's removal from the State would contravene its non-refoulement obligation.
Refoulement could also arise under the Bill's carrier liability provisions, where a carrier is liable for permitting a person to illegally access the State. The Bill should be amended to ensure this did not apply in respect of refugees or others with protection needs. The UNHCR also warns the Bill may contravene the European Convention on Human Rights in not prohibiting extradition to a place where a person might face torture or inhuman or degrading treatment.
Referring to fair procedures, it expresses concern about the establishment of the facts surrounding an application for protection; the appeals procedure, including access to information and interpretation, and equality of impartiality and transparency.
In relation to the establishment of facts, it stresses that the absence of documentation should not lead to a person being regarded as not credible. It points out that people fleeing persecution often carry just the bare essentials, and may not be able to bring documents. The principle of giving the benefit of the doubt to applicants should be written into the Bill.
It also makes a number of recommendations relating to the independence, impartiality and transparency of the proposed Protection Review Tribunal, which will replace the existing Refugee Appeals Tribunal, the subject of recent controversy.
The Bill as it stands allows for the deportation of people while a judicial review is ongoing. The UNHCR states such proceedings should suspend deportation. It is critical of the sections making unlawful entry into and presence in the State an offence, without an exception being allowed under the 1951 Convention.
Ten recommendations are made about separated children coming into the State, including the recommendation that their welfare is the central consideration in all proceedings.
It is to be hoped this document gets the same endorsement from the Department of Justice that the UNHCR's previous comments on Ireland's refugee protection did.