IRELAND 67 1. Statistical Data According to unofficial sources, some hundreds of Palestinians are living in either Dublin or Belfast today, however, no comprehensive data on the number of Palestinians in Ireland are available. 68 In general, persons who claim to be Palestinians are registered as Palestinians by the Irish authorities, while their previous country of residence is registered separately. Approximately 40 Palestinians have been granted refugee status in Ireland since the adoption of the Refugee Act of 1996 as amended (Refugee Act) 69. 70 2. Status of Palestinians upon Entry into Ireland As in the case of other asylum-seekers, Palestinians who are in Ireland may submit an application for asylum to the Office of the Refugee Applications Commissioner in Dublin. They are provided with identity cards that include their photograph, name, nationality and Department of Justice, Equality and Law Reform reference number. They are then channeled to various locations throughout Ireland, where they are assigned to a particular hostel. If they choose to live outside the hostel, they may do so at their own expense, and without the allowance that would otherwise be provided. 3. Refugee Determination Process: Refugee Status and Complementary Forms of Protection In general, applications for asylum are considered by the Office of the Refugee Applications Commissioner at first instance and, if they are refused, on appeal by the Refugee Appeals Tribunal, on the basis of the Refugee Act. According to Section 2 of the Refugee Act, a refugee means: A person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it, but 191
4. does not include a person who is receiving from organs or agencies of the United Nations (other than the High Commissioner) protection or assistance;. does not include a person who is recognised by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country... 71. Asylum-seekers who are not recognised as refugees may be granted leave to remain at the discretion of the Minister for Justice, Equality and Law Reform who takes into account criteria listed in Section 3 of the Immigration Act, including humanitarian considerations. 3.1 Article 1D in Refugee Status Determination Section 2(a) of the Refugee Act contains an explicit exclusion provision based on Article 1D, first paragraph. The full text of the 191 Refugee Convention, including Article 1D, first and second paragraphs, is, however, set out in the Third Schedule of the Refugee Act. At the same time, it is explained in Section 1 of the Refugee Act that the text of the Convention is included in the Schedule for convenience of reference. Given this situation, the question arises as to whether Article 1D has been incorporated into Irish law in toto. A particular member of the Refugee Appeals Tribunal has heard the majority of cases involving Palestinian applicants. In the decisions where judicial review proceedings have been instituted, this member has stated that the Refugee Act has incorporated fully the provisions of the 191 Refugee Convention into Irish Law. 72 Judicial review proceedings were instituted in a number of cases, and were subsequently settled (see below, Np. 67 JR). The central legal question in these cases was whether Article 1D has been incorporated into Irish law in toto. If the Court had ruled on this question of principle, the Court s decision would have been precedent-setting. However, the cases were settled and the grounds of leave granted by the High Court in the case below have therefore limited judicial value. 192
Jurisprudence Sample Cases S. vs. the Refugee Appeals Tribunal and the Minister for Justice Equality and Law Reform2003 (Np. 67 JR): This case involved a Palestinian who came to Ireland in 1999 to seek asylum on grounds of political opinion and membership of a particular social group. The member of the Refugee Appeals Tribunal referred to above had ruled earlier in this case that the 191 Refugee Convention, including Article 1D, is fully incorporated into Irish law by the Refugee Act. When assessing the appeal under Article 1D, the Appeals Tribunal noted that the applicant no longer enjoys the protection or assistance of UNRWA. The Tribunal then examined whether the appellant was unwilling to return to UNRWA s area of operations because of threats to physical safety or for other serious protection-related reasons. 73 It concluded that the applicant had not established serious protection-related grounds which prevented his return to UNRWA s area of operation. The Tribunal then proceeded to examine whether the criteria set out in Section 2 of the Refugee Act (i.e., the criteria set out in Article 1A(2) of the 191 Refugee Convention) would apply to the case and concluded that the applicant did not satisfy these criteria. 74 The decision is rather unclear, and it is difficult to understand how the Tribunal applied Article 1D, in particular because the Tribunal also applied the criteria set out in Article 1A(2) of the 191 Refugee Convention. It appears, however, that the Tribunal held that the applicant fell within the second paragraph of Article 1D (i.e., he no longer enjoyed the protection or assistance of UNRWA) and then assessed whether the applicant could be returned to UNRWA s area of operations. The claimant argued in his appeal to the High Court that Article 1D has not been incorporated in toto into Irish law, because incorporation of an international convention into Irish law requires an Act of the Parliament. He argued that the only provision to have been given the force of law is the provision contained in Section 2 of the Refugee Act. Article 1D, second paragraph, is not part of this provision. It was therefore wrong to conclude that Article 1D of the 191 Refugee Convention has been incorporated in toto into Irish law. Based on the above, the claimant concluded that the member of the Refugee Appeals Tribunal had committed an error of law, and that the correct approach would have been to establish, on factual basis, whether the claimant was a person receiving from organs or agencies of the United Nations protection or assistance (Section 2(a) of the Refugee Act). If this was the case, he could not be a refugee under the provisions of Section 2 of the Refugee Act. If, based on the facts, he was not receiving such protection or assistance, the member of the Refugee Tribunal should have proceeded to examine whether he satisfied any of the conditions for refugee status under the terms of Section 2 of the Refugee Act. 193
On 13 February 2004, the Irish High Court (Justice Herbert J.) accepted the appeal and granted leave to apply on the grounds that: (1) The Tribunal Member erred in law in applying the provisions of Article 1(d) of the Geneva Convention to the applicant s claim and in that regard failing to properly apply the provisions of Section 2 of the Refugee Act 1996 as amended to the applicant s claim. (2) The Tribunal Member s decision to refuse the applicant s claim for asylum was vitiated by unreasonableness and/or irrationality in all the circumstances. The substantive appeal was settled in November 2004. The decision of the Refugee Appeals Tribunal was quashed and the appellant was afforded a new hearing before a different tribunal member. Five other cases tracking the case were settled on a similar basis. Given the fact that a settlement was reached, the grounds of leave granted by the High Court have limited jurisprudential value. The applicant, S, was subsequently granted refugee status. 4. Refugee Determination Process: Outcome As in the case of other asylum-seekers, Palestinians who are recognized as refugees on the basis of Section 2 of the Refugee Act are granted rights almost identical to the rights of an Irish citizen, including the right to remain and to work. Refugee status may be revoked under certain circumstances. In practice, however, this is rarely applied. Asylum-seekers who are granted leave to remain are normally conferred with the same rights as refugees under Section 3 of the Refugee Act.. Return Deportation Following a final negative decision, a rejected asylum-seeker is informed that a deportation order may be issued and given 1 working days to set out reasons why she/he should be permitted to remain in Ireland. In determining whether to grant temporary leave to remain, the Minister for Justice, Equality and Law Reform takes into account a number of criteria, including humanitarian considerations (Section 3 of the Immigration Act 1999). The Minster may, moreover, use his discretion to permit a person to remain under Section 17(6) of the Refugee Act. Persons granted temporary leave to remain are given temporary residence permits which may be renewed depending on the circumstances existing at the time. They are granted the right to reside and work in Ireland for the duration of the permit. After five years of residence under this status, they may apply for naturalization. 194
According to the Department of Justice, Equality and Law Reform, no Palestinians have been granted temporary leave to remain since November 1999. 7 Many rejected asylum-seekers have been waiting for several years for a response to their application for temporary leave to remain. In the meantime, they cannot work or travel outside Ireland (except with the permission of the Minister for Justice, Equality and Law Reform). 6. Temporary Protection Section 24 of the Irish Refugee Act provides for temporary protection or resettlement for programme refugees. This provision has not been applied to Palestinians. 7. Protection under the Statelessness Conventions Ireland has acceded to both, the 194 Stateless Convention and the 1961 Statelessness Convention, and has ratified the former but not the latter. BADIL is not aware of any practice regarding Palestinian refugees. 8. Reference to Relevant Jurisprudence Both the Office of the Refugee Applications Commissioner and The Refugee Appeals Tribunal issue its decisions to the applicant and his/her legal representative. The legislative framework was amended with effect from September 2003 to allow the Refugee Appeals Tribunal to publish certain decisions, however to date, no decision has been published under this framework. Since January 2003, the Refugee Appeals Tribunal has issued positive decisions to the applicants and their legal representatives, whereas prior to that date, only negative decisions were issued. 9. Links Irish Government Resource: www.gov.ie Refugee Legal Service: www.legalaidboard.ie 19