IHRC calls for tighter safeguards to Irish immigration law and practice to meet human rights standards in light of the treatment of a visitor refused leave to land in Ireland
The Irish Human Rights Commission (IHRC), today, published its second enquiry report. The report, which examined the treatment of a visitor refused leave to land in the State, recommends that the Government introduce tighter safeguards to immigration law and practice including a review of the provisions of the Immigration, Protection and Residence Bill 2008 (2008 Bill).
The enquiry report identifies a number of specific areas of concern where Irish immigration law could be made more fully compliant with the human rights obligations of the State. The report makes recommendations on how the State might address those concerns. The IHRC considers that a review of immigration law and practice including the provisions of the 2008 Bill, currently at Committee stage in the Oireachtas, would not only bring Ireland into line with its international human rights commitments, but also assist the State in reducing the likelihood of having to address these issues through costly litigation.
In conducting the enquiry, the IHRC found that European and International Human Rights Standards have not been wholly respected by the State in the manner in which it dealt with a Pakistani visitor, in possession of a valid visitor visa, refused leave to land at Dublin Airport. In its report the IHRC expresses concern in relation to the State’s compliance with the European Convention on Human Rights (ECHR), the European Convention on the Prevention of Torture (CPT) and the International Covenant on Civil and Political Rights (ICCPR).
Summary of recommendations
Immigration law and practice including the Immigration, Protection and Residence Bill 2008 should be reviewed against the recommendations in the enquiry report;
Clearer grounds for and independent oversight of decisions should be introduced;
Safeguards against arbitrary detention should be improved;
Procedural rights should ensure immigration detainees are always treated with humanity and respect;
Relevant data on visa decisions and immigration detentions should be collected and stored in accordance with relevant human rights and data protection standards;
Effective remedies should be ensured where the human rights of individuals are not respected.
The IHRC was requested by a Pakistani national to conduct an enquiry in relation to an injustice he perceived arising from his arrest, imprisonment and forcible removal from the State. This was as a result of a decision by an Immigration Officer to refuse him leave to land in January 2003. The Immigration Officer, in making this decision, had no access to the information provided by the complainant in applying for the visitor visa in his home country and so based his decision only on a brief interview in Dublin Airport.
Before being forcibly removed from the State, the complainant had his passport marked by immigration officials which appears to have led to his detention in three other countries including in his home country of Pakistan. His family in Pakistan suffered anxiety with no information on his situation. The round trip consequent on his refusal of leave to land was a total of five days. Since then, he has felt unable to travel abroad.
The relevant human rights standards considered by the IHRC in the enquiry were:
- Right to freedom from arbitrary detention
- Right to be free from inhuman or degrading treatment or punishment
- Right to private life and to be treated with humanity and respect
- Right to equality before the law and non-discrimination in the enjoyment of rights
- Right to an effective remedy.
Welcoming the publication of the enquiry report, Des Hogan, Deputy Chief Executive of the IHRC stated: "This enquiry was conducted as part of the IHRC’s statutory functions, and looked into both Immigration law and the implementation of that law by State officials. It comes at a time when the Immigration, Protection and Residence Bill 2008 is again before the Oireachtas. The report’s findings deserve careful scrutiny, particularly concerning those practices which the IHRC considers to be not fully in compliance with international standards but which are included in the current draft legislation. We hope that State officials will find its analysis to be persuasive and that the findings of this enquiry will assist in ensuring best practice in this State, when measured against international standards."
Mr Hogan went on to say: "The human rights instruments referred to in this report concern human rights principles such as the right to liberty and the right to be treated with dignity and respect. The purpose of such an enquiry, which concerns an engagement between the IHRC and State bodies, involves a common endeavour to secure human rights protection in the State. An enquiry is not intended to be an adversarial process and the current enquiry process is testimony to that fact where full cooperation was received from the State bodies concerned. In a case such as the present, an enquiry is designed to identify whether there are any deficiencies in the law and/or practice relating to human rights and, if so, to suggest ways in which those deficiencies may be remedied. I hope this report fulfils these purposes."
Enquiry’s Key Conclusions and Recommendations
The IHRC’s Enquiry came to a number of significant conclusions and recommendations for change that require that current immigration law and practice in the State, including the proposed Immigration, Residence and Protection Bill 2008, be reviewed against the international human rights standards as set out in the report.
Clearer grounds for decisions and independent oversight
In its enquiry report, the IHRC recommends that appropriate protocols be developed so that Immigration Officers have information before them regarding the original application for a visitor visa in individual cases. It recommends that vague criteria on which Immigration Officers base their decisions to refuse persons leave to land in the State be removed from the statute books. On a more practical level, the enquiry report recommends that where leave to land is refused, the practice of "marking" passports should cease. This practice has an unclear legal basis and may result in negative consequences for the person being forcibly returned to his or her country through third States and for future travel abroad.
The IHRC calls for the introduction of a system of review and independent oversight of these decisions where the independent body has the authority to investigate complaints or to undertake own-motion investigations into all immigration-related practices. The IHRC considers that a system of independent oversight could address the potentially serious implications for the State in relation to defending the integrity of the Garda Nationality Immigration Bureau Information Security system and the proper administration of that system. (Separately, internal review and independent oversight of Immigration Officer decisions would also assist State authorities in identifying asylum-seekers presenting at the border and thus allow them access to the refugee determination procedure.)
Improve safeguards against arbitrary detention
In relation to the right to freedom from arbitrary detention, the IHRC expresses some doubt as to whether the existing law is sufficiently precise and accessible, taken together with the absence of a remedy for arbitrary detention, to meet the requirements of the ECHR and ICCPR in all cases. In this regard, the enquiry report questions whether the traditional habeas corpus or judicial review safeguards are sufficient to meet international standards.
Safeguards against arbitrary detention would include, inter alia, that the criteria upon which decisions to detain are based are sufficiently precise and accessible; that the reasons for decisions are provided in an appropriate language and that all immigration detentions be automatically reviewed within three days by a Court and periodically thereafter.
Treatment of detainees with humanity and respect
The enquiry report considered the right of detainees to be treated with humanity and respect. The fact that the complainant was detained in a prison, in poor conditions of hygiene and privacy and in the absence of a number of basic procedural rights in relation to the detention is a matter of ongoing concern in relation to State practice in general.
The enquiry report recommends that persons refused leave to land in the State should not be detained in prisons. It further recommends that the minimum requirement to treat all persons in detention with humanity and respect under Article 10 of the ICCPR, and under the CPT should be guaranteed in law;
Gathering data on visa decisions and immigration detentions
While the enquiry report found that no direct or indirect national or racial discrimination occurred in the case under review, it recommends that the State’s procedures for collecting and disaggregating data concerning a) all visa decisions (e.g. by category type and nationality) and b) all immigration detentions (e.g. by place of detention, duration of detention and nationality of detainee) be significantly improved. This should occur after incorporating relevant human rights protections in relation to domestic, EU and international data protection law standards, to ensure that each applicant’s right to privacy is fully respected.
Effective remedy
The enquiry report also considered that the lack of safeguards and oversight for immigration procedures meant that current law and practice may not afford persons with an effective remedy as required under international standards. It recommended that compensation and reparation be available in cases where the human rights of immigration detainees have been breached.
Integrity of the State’s borders
While the IHRC acknowledges that the State has a genuine, important and legitimate interest in controlling the integrity of the State’s borders this must be balanced against the basic human rights of each individual that presents themselves at the State’s ports. Those rights are highlighted in the report.
Finally the report expresses the hope that the State, taking into account the conclusions in the report would act speedily and make an appropriate response to the complainant recognising his dignity and worth as a human being.
ENDS/
IHRC spokesperson available for comment: Des Hogan, Director of Enquiries, Legal Services & Administration & Deputy Chief Executive
IHRC contact person:
Fidelma Joyce
Senior Human Rights Awareness Officer
Tel: 01 8589601
Mob: 087 783 4939
Notes to editor:
The current enquiry is the second enquiry conducted by the Commission; its first enquiry was entitled "The Self-Employed and the Old Age Contributory Pension" and was published in April 2007. The power of the IHRC to conduct enquiries derives from sections 8(f) and 9 of the Human Rights Commission Act 2000. Under its legislation, the Commission has the power to compel the production of information, documentation or things in the course of its enquiries and it can require persons to attend before the Commission for that purpose.
Enquiries conducted by the IHRC may be at the request of an individual concerning a relevant human rights matter. The purpose of IHRC enquiries is directed to reviewing the adequacy and effectiveness of law and practice in the State relating to the protection of human rights; i.e. to evaluate how the law is operating in practice not only for an individual, but also in general. IHRC enquiries are also directed at promoting understanding and awareness of the importance of human rights in the State. In applying the human rights standards defined in its legislation to a particular fact situation, enquiries will also make recommendations to Government on the measures the State needs to take to strengthen, protect and uphold human rights in the State and hence ensure compliance with its national and international obligations. Ultimately IHRC enquiries are there to assist the State in remedying faulty practices and can thus help State bodies in avoiding costly litigation.
In relation to Immigration Officer decisions at the State’s ports, the enquiry recommended that in the absence of protocols for Immigration Officers to have relevant information before them regarding the original application for a visitor visa in individual cases, persons should be explicitly advised in advance regarding the documentation they should carry with them when presenting at the State’s ports seeking to visit the country. This would avoid the possible absence of such documentation leading to an inappropriate refusal of leave to land.
The protocols referred to include the development of the new automated visa application tracking system (AVATs) by the Department of Foreign Affairs and the Department of Justice which will record background information underlying visa applications and which will be accessible to Immigration officers at ports of entry to the State. The enquiry report recommends that this system be made fully operational as soon as possible, incorporating relevant human rights protections in relation to domestic, EU and international data protection law standards, to ensure that each applicant’s right to privacy is fully respected.