29 January 2004 Edition
Landmark court decisions protect asylum seekers and migrants
BY ROISIN DE ROSA
You may not have noticed, but quietly the Garda National Immigration Bureau (GNIB) has been going about raiding workplaces looking for people who are, or might be 'illegals', rounding them up and in numerous cases imprisoning them.
It might be asylum seekers who are not allowed to work, it might be migrant workers who haven't work permits, or have left the place of work for which the permit was given. It might be people who the GNIB fear they might lose contact with once the deportation order 'comes through', or it might be just some people who don't happen to have their documentation on them at the time.
For example, 'Oki' has refugee status here, a passport, a bank book, a green card, driving licence and so on. He was stopped last spring with all his documentation on him. The GNIB 'considered' all this documentation fraudulent, and they locked him up in Cloverhill Jail. A court established that, after all, his ID was not fraudulent and released him. He had been imprisoned entirely illegally.
Justice Finlay Geoghegan, in a landmark decision last Thursday, put a stop to all this. The Gardaí can no longer demand that people produce their identification on the street or in the workplaces. Justice Geoghegan found that Section 2 of the 1999 Immigration Act, which aims to give the 1946 Aliens Order statutory effect, is unconstitutional. The Aliens Order cannot be treated as law unless it is made by the Oireachtas, signed by the President and promulgated into law.
The justice also declared unconstitutional the provisions of the Aliens Order, which allows the GNIB to require a person to produce registration certificates, passports and other documents on arrival here. It is a judgement of considerable importance. The very next day, an Albanian Kosovan, who had been held in Cloverhill since before Christmas on a charge of failing to produce registration documentation, was given unconditional release by the judge.
The GNIB, as reported in the Irish Times, complained that the judgement 'made them more or less redundant'. Legal sources suggest a number of similar applications, by those detained for not having identification, will be brought in the coming days.
"Closing a loophole"
The very next day, Justice Minister Michael McDowell, as he came to the Castle to chair the EU Justice and Home Affairs Council meeting discussions on an EU asylum seeker process, announced that he would be presenting new legislation to 'close the loophole' in the legislation this week.
But as Daithí Doolan, who is looking to take a council seat in Michael McDowell's constituency of Ringsend, points out: "Even the dimmest of wits must see that legislation which will successfully 'close this loophole', as the Minister calls it, must force migrant workers, refugees, or asylum seekers — in fact people with black faces — to carry 'pass books' — identification proving their right to be here. Is that not exactly the pass law system of apartheid? And is that what we want here?"
Childrens' Right to be Consulted
Justice Geoghegan delivered another judgement last week of equal significance. Angela Nwole, whose tragic five-year saga through the courts, and jail, to remain here with her five children, is claiming her right and that of her daughters to remain here on humanitarian grounds. She says that, if deported back to Nigeria, her daughters will be obliged to undergo circumcision, which is bodily mutilation and an abuse of their human rights.
The judge ruled, after a year, that a child of a certain age, in this case over 14, has the right to have their opinion considered and taken into account.
This judgement raises not only the rights of the child in this country, but the whole issue of 'safe' or 'white' countries, as Minister McDowell ironically calls them. Are countries such as Nigeria to be held as 'white' countries, with which the Dublin Government, under the previous Minister for Justice, John O'Donoghue, negotiated a deportation deal allowing Nigerian asylum seekers to be returned?
EU Accord by May
The issue of 'safe countries' is one exercising EU Ministers as they attempt, under McDowell's guidance whilst Ireland holds the EU Presidency, to negotiate an accord on common asylum procedures. Such agreement is required under the Amsterdam Treaty by 1 May.
Many share the concerns about what the accord will look like. The UN High Commissioner for Refugees, Ruud Lubbers, warned last week that the accord under consideration "may involve significant departures from accepted international refugee and human rights law and the principles established over 50 years".
With Ireland's McDowell at the helm, whose view that 95% of asylum seekers are 'illegal' is on record, and that introducing pass book legislation is only tightening up 'a loophole', it is likely that Lubbers' fears will be more than justified on Mayday, International Labour Day.
What chance that Ireland will bring a progressive and humanitarian influence through our six months' tenure of the EU Presidency? Small it seems, very small indeed.