IHRC concerned that human rights of immigrants and protection applicants are not fully protected and upheld in the Immigration Residence and Protection Bill 2008 andrecommends revisions and additional safeguards.
The Irish Human Rights Commission (IHRC) has today published its observations on the Immigration, Residence and Protection Bill 2008. The IHRC is making these observations in line with its statutory role to review the adequacy and effectiveness of law and policy in Ireland in relation to Constitutional and international human rights standards.
The IHRC welcomes the initiative to consolidate immigration law into a single statutory code. However, the IHRC is concerned that there are a range of areas in the Immigration Residence and Protection Bill 2008 (2008 Bill) where the human rights of immigrants and protection applicants are not fully protected and upheld to the level required by the international human rights treaties which Ireland has ratified.
"We have assessed the Immigration Residence and Protection Bill 2008 in light of the international human rights obligations to which Ireland has voluntarily committed itself. We have concluded that in several important respects the Bill has shortcomings", stated Maurice Manning, President of the IHRC.
He continued
"In particular, based on our assessment of the 2008 Bill, the IHRC believes that additional safeguards are needed in a range of areas to strengthen and enhance the current provisions of the proposed legislation and to ensure that the human rights of immigrants and protection applications are fully protected and upheld."
The IHRC has made 59 recommendations to the Government in 24 areas. Areas of particular concern to the IHRC include;
1. Removal from the State
The Bill allows for removal from the State of anyone who is "unlawfully" present in the State. The Bill states that a person can be removed from the State where it "appears" to an immigration officer or Garda that the person is unlawful. The provisions in the Bill are a change from the current position in Irish law. In current legislation a person is given 15 days written notification of the Minister’s proposal to make a deportation order, and the Minister is required to have regard to 11 different factors as they pertain to the person proposed to be deported.
The IHRC recalls in its Observations that under the provisions of the ECHR and ICCPR, everyone present in the State, whether present lawfully or unlawfully, is entitled to the protection of their human rights including the right to family life and the right not to be subjected to torture and other ill-treatment. The IHRC is concerned at the removal of the safeguards which currently exist in Irish law. The IHRC considers that the safeguards in current Irish law are necessary to ensure that any removal from the State is proportionate and takes into consideration the human rights of the person to be removed. In particular, the IHRC considers that these safeguards are necessary to ensure that no one is subject to "refoulement". Refoulement is the return of a person, in any manner whatsoever, to a jurisdiction where their life or freedom is threatened, or there are substantial grounds to believe that they will face a real risk of suffering serious harm, or torture or inhuman or degrading treatment.
2. Trafficking
The IHRC welcomes the inclusion in the Bill of provisions relating to the victims of trafficking. In particular, the IHRC welcomes the inclusion of a 45 day "recovery and reflection" period. However, the IHRC is concerned that the provisions in the Bill concerning victims of trafficking fall short of what is required to meet international standards in relation to the protection of, and provision for, victims of trafficking.
The IHRC considers that this Bill provides an important opportunity for the Government to bring Irish legislation into line with the international instruments which Ireland has signed. In light of this, the IHRC has set out a series of relevant recommendations for inclusion in the Bill. In particular victims of trafficking should be provided with health care including psychological support, secure accommodation and material assistance, information in relation to their legal status through a translator, and legal advice.
The IHRC is also concerned that the provisions in the 2008 Bill allow the Minister to revoke permission to remain for six months where the victim does not co-operate with the prosecution of the trafficking offence by the Garda Síochána. The IHRC considers that in line with international standards a victim of trafficking should be granted leave to remain where it is considered necessary owing to their personal situation and humanitarian considerations.
3. Detention of persons who have applied for protection
The Bill allows for the detention of people who have applied for protection in the State, in prisons or Garda Stations. International bodies such as the Committee for the Prevention of Torture have stated that prisons or police stations are not suitable places for the detention of immigration detainees. The IHRC is concerned that the provisions for the imprisonment of protection applicants in a prison or Garda station may contravene Ireland’s international obligations.
The IHRC recommends that where, as a matter of last resort, people seeking protection are detained, they should only be detained in appropriate facilities that meet international human rights standards.
4. The Right to Marriage
The IHRC is concerned that the 2008 Bill proposes to restrict the right to marry for all protection applicants and non-permanent residents in Ireland unless they are granted an exemption by the Minister, whether they are marrying a foreign national or an Irish citizen. The Minister can refuse to grant an exemption on a broad number of grounds. The IHRC considers that such a serious interference with the right to marry for Irish citizens and foreign nationals may breach Article 12 of the ECHR and the Irish Constitution.
The IHRC has recommended that the provisions in relation to marriage should be seriously reconsidered. The IHRC notes that the Minister for Justice Equality and Law Reform has given an indication that this aspect of the Bill will be re-examined and welcomes this commitment.
In conclusion Maurice Manning stated that "the IHRC hopes that the Minister will give serious consideration to modifying the Bill on the basis of its recommendations, in order to ensure that Ireland’s human rights framework is as strong as possible for everyone in Ireland, including those who come within the immigration or protection system."