Give me your tired, poor, huddled masses

In May 2018, more than 3,500 people became Irish citizens when the first citizenship ceremony of the year took place in Killarney. Since citizenship ceremonies were first introduced in 2011, more than 119,000 people from 181 countries have become Irish citizens.

The citizenship ceremony took place against the backdrop of international political and media discourse focused on the current European migration ‘crisis’, Brexit anti-immigrant sentiments and, more recently, the widespread criticism regarding the controversial ‘Muslim ban’ and border policies of the Trump administration.

It provides a timely opportunity to reflect on Ireland’s own domestic migration related procedures.

The Irish system

To be eligible to apply for Irish citizenship, applicants must fulfil statutory eligibility criteria set out in the Irish Nationality and Citizenship Act 1956 (as amended).

Fulfilment of eligibility criteria does not entitle an applicant to a positive decision; applications for citizenship are granted at the absolute discretion of the Minister for Justice.

There is no appeal process if an application is refused, even if an error is made assessing compliance with the eligibility criteria.

For the vast majority of applicants, a five-year reckonable residence period must be completed prior to applying.

On the face of it, this may appear to be a relatively short period of time and is a reasonable requirement. However, for non-EEA citizen applicants, this entails navigating a complex immigration system and ensuring that lawful residence permission is maintained at all times.

The reality of requirements

This can prove challenging, given the reality of requirements imposed on foreign nationals to seek periodic renewals of residence, sometimes as frequently as every six months.

There is no obligation imposed on the Minister for Justice to issue a decision on the renewal application prior to the expiry of the existing residence permission or to provide a temporary residence status pending any decision.

Maintaining lawful residence permission may also prove difficult where, as observed by the Supreme Court earlier this year in the cases of Luximon and Balchand ([2018] IESC 24), an individual’s legal status in Ireland is not altered as a result of some unlawful act on their part, but rather by an alteration in Government policy.

Despite the relatively large body of legislation related to immigration and residence found in the Immigration Acts 1999-2004, most immigration and citizenship decisions are granted on a discretionary basis and, while there are some exceptions – for example, visa or employment permit applications – there is generally no statutory right of appeal.

There is also no established internal administrative review procedure, even where the decision may result in an adverse finding against the applicant’s character, the separation of families, forced removal from the country or, indeed, the deprivation of liberty.

Statutory restrictions

While judicial review is available, statutory restrictions are imposed and often proceedings must be issued within a relatively short 28-day period.

This is especially onerous for applicants, as well as their legal representatives, particularly having regard to the recently published HC78 practice direction related to the asylum, immigration and citizenship list, including requirements regarding written submissions accompanying ex parte applications, the obligation to exhibit a full copy of every file related to each and every prior immigration or protection decision related to the applicant, even if they do not relate in any way to the impugned decision, and adverse cost implications.

Immigration reform

Since 2001, successive Irish governments have conceded that the existing legislative basis for the Irish immigration system is in need of comprehensive replacement. The International Organisation for Migration was commissioned to conduct an international comparative study of law and practice.

The objective of the process was to ensure that our immigration system is developed to the highest international standards. In the programme for government Blueprint for Ireland’s Future 2007-2012, the Government noted the imperative of a fair and strategic immigration policy to the sustaining of a strong economy and, as a step towards this, undertook to ensure legislative reform, including the introduction of a visibly independent appeals process.

There has recently been reform of the international protection system, resulting in the introduction of the single protection procedure and the establishment of the International Protection Appeals Tribunal (IPAT) under the International Protection Act 2015.

Progress

However, within the wider immigration system, similar progress has yet to be made. Recent changes have been piecemeal, and largely reactionary responses to deal with specific issues arising in the Irish or European courts, or to address particular issues such as human trafficking.

Several draft bills aimed at comprehensively reforming the current system published by various governments – most recently the Immigration, Residence and Protection Bill 2010 – have failed to be enacted.

Appeals

The IPAT replaced the former Refugee Appeals Tribunal and is described as a statutorily independent body exercising quasi-judicial functions. At the time of its establishment, some concerns were expressed by the Irish Refugee Council regarding a possible lack of independence and impartiality arising from the role that the Minister for Justice plays in the appointment of tribunal members.

However, in practice, the greater challenge has been to ensure that the IPAT is adequately resourced to address the backlog of applications in a fair and efficient manner, an issue highlighted by the chairperson of the IPAT on publication of the annual reports in 2016 and 2017.

It is empowered to determine the appeals of those persons whose application for international protection status has not been recommended by the International Protection Office and decisions made under the Dublin System Regulations.

Jurisdiction of the IPAT

The jurisdiction of the IPAT is, however, limited. For international protection applicants, there is no possibility to appeal a decision to refuse permission to remain when human rights concerns arise but fall outside the scope of refugee status and subsidiary protection.

For persons granted protection status, there is also no right to appeal a decision of the minister to refuse family reunification. Various civil society organisations have recommended that the jurisdiction of the IPAT should be broadened in this regard.

For non-protection related applications, the vast array of immigration decisions remain subject, almost entirely, to ministerial discretion only.

The Immigrant Council of Ireland was critical of this reality in submissions to the Human Rights Council at the 25^th session of the Universal Periodic Review, noting the Migration Integration Policy Index findings that Ireland has one of the most discretionary immigration systems in the developed world.

Independent appeals

Currently, in the absence of an independent – or indeed any – appeals mechanism, the only bulwark against the excesses of relying on discretion comes in the form of High Court judicial review.

This is unquestionably a necessary and crucial route for those seeking to achieve administrative justice. Yet, when deployed as a port of first call in reviewing immigration decisions, a number of deficiencies become apparent.

The High Court is not capable of reviewing the merits of the case or dealing with questions of fact.

When compared to an appeals tribunal that is capable of altering the initial administrative decision, this is a significant failing. Prof Robert Thomas of Manchester University has observed that “judicial review is an inappropriate means of challenging such decisions [regarding immigration rules], because the issues are largely factual, requiring the presentation and assessment of evidence.

Judicial review almost always excludes such an exercise, whereas it is the meat and drink of tribunal appeals.”

Additionally, for both applicants and the State, judicial review may be an extremely lengthy and expensive process, arguably not the effective remedy envisioned by article 13 of the ECHR, especially where detention or the separation of families is at stake, and where the passage of time has significant negative implications for applicants.

Comparative perspective

The absence of appeals mechanisms in the Irish immigration system contrasts significantly with other jurisdictions, notably our common law neighbours in Britain. There, the existing immigration appeals mechanism found its inception in the Immigration and Asylum Act 1999 in the form of the Immigration Services Tribunal. The functions and administration of this tribunal were subsequently transferred to the Courts and Tribunal Service in 2010 and became the First-Tier Tribunal (Immigration and Asylum Chamber). In contrast to the limited jurisdiction of the IPAT in Ireland, the British tribunal has the power to hear appeals against the decision of the Home Office to refuse international protection claims, as well as decisions to refuse human rights claims, entry clearance, residence, and deportation and immigration bail.

This is not to suggest that Britain is an example of a perfect immigration system. Indeed, the right of appeal to the First Tier Tribunal has been greatly eroded since the passing of the Immigration Act 2014, which abolished rights of appeal against many decisions.

The net result of this legislative change was that, of the 3.5 million immigration decisions taken per year, a mere 12% have a right of appeal to an independent tribunal. This move to restrict appeals, motivated by a stated desire to identify wrong decisions quickly and thereby reduce the volume of appeals, was met with vehement criticism, with the view proffered that it undermined the fairness of the process.

Notably, in cases falling outside of those categories, internal administrative review still remains available. This contrasts favourably with our domestic system.

Interesting comparison

The retrograde legislative change in Britain does, nonetheless, provide an interesting comparison between the success rates of an appeal before an independent tribunal and those decisions altered through an administrative review.

Since the changes, the Independent Chief Inspector of Borders and Immigration has published two reports on the Home Office’s administrative review process, which have been analysed by the Administrative Justice Institute. This reveals that 49% of appeals through the tribunal system were successful, of which 60%, the Home Office concluded, arose out of case-working errors.

This is a remarkably high percentage and, in itself, makes a strong case for the necessity of an independent appeals mechanism. This assertion is only strengthened when it is considered that the success rates of those applicants who requested an in-country administrative review by the Home Office were recorded at 8%.

The Administrative Justice Institute, in documenting various failures in the administrative review process, concluded that “there is substantial and unexplained difference in outcomes between reviews and appeals”.

Excessive reliance

The Irish immigration system is characterised by an excessive reliance on ministerial discretion and an absence of independent appeal or administrative review procedures. The establishment of the IPAT is a positive development, and while that tribunal is experiencing its own resource issues, this is an insufficient excuse for denying a right of appeal in the majority of immigration decisions.

From a comparative perspective, the British example shows the positive impact an independent appeals tribunal can provide. An independent appeals tribunal, accompanied by comprehensive rights of appeal from immigration decisions, is a necessary and important element of a fair and transparent immigration system.

Ongoing reliance

Failure to enact legislative reform and to introduce appeals mechanisms is only likely to result in ongoing reliance on our courts to address rights violations. Arguably, this is not cost-effective for any of the parties, and fails to ensure timely redress for applicants who require a proper assessment of the facts and merits of their cases.

The commitment by government to comprehensively replace the current immigration system has not yet been met. Policymakers need to take a step back from the politics of the moment to take the time to deliberate and develop a comprehensive, coherent national policy in respect of immigration and integration issues.