Campaigns 
Access to Justice
Friday, 03 September 2010
The absence of an avenue of appeal against immigration-related decisions, coupled with the fact that many decisions are made at the discretion of the Minister for Justice and Law Reform, and the lack of clear rules set out in legislation or regulations, can and does lead to real injustice. The ICI has been campaigning for the establishment of an independent appeals tribunal for immigration-related decisions. We have done this through our strategic litigation and through our lobbying for amendment to immigration legislation. The ICI has also lobbied political parties to commit to the establishment of an independent appeals tribunal for immigration-related decisions in their policies and manifestos. As a result of this lobbying, a commitment was made in the Programme for Government after the 2007 general elections to ensure a “visibly independent appeals process” to be put in place. However, it has yet to be acted upon.
The ICI believes a fundamental flaw in Ireland’s immigration system is the lack of an independent tribunal to hear appeals against decisions affecting migrants’ lives. While an appeals tribunal exists to hear cases relating to asylum applications, there is no mechanism in place for migrants who do not fall into this category and who are, by far, the majority.
The ICI believes the establishment of an independent appeals tribunal could save Government and taxpayers’ money, as well as provide a fairer, more transparent immigration system.
The establishment of an independent appeals mechanism to deal with immigration decisions is the only way to ensure access to fair procedures and effective remedies for migrants and their family members seeking to challenge decisions affecting their human rights as protected under the European Convention on Human Rights and Fundamental Freedoms (ECHR), in particular Articles 3 (prohibition of torture) and Article 8 (right to family life), as required by Articles 6 (right to a fair trial) and 13 (right to an effective remedy) of the Convention.
Currently, people seeking to challenge decisions refusing them permission to remain in the State or permission to enter the State – for example for the purpose of family reunification or for the preservation of the family unit – are effectively forced to seek judicial review of that decision by the High Court.
During committee stage debate on the Immigration, Residency and Protection Bill 2008, the Minster for Justice, Equality and Law Reform said about 60 per cent of all judicial review applications taken to the High Court related to asylum or immigration decisions and that the cost to the taxpayer associated with judicial reviews was €11 million to €12 million in 2007 alone.
By contrast, in the UK, the cost per appeal taken to its Asylum and Immigration Tribunal in 2005-06 was £762, from the date the appeal was received until a decision was made. That figure includes judicial costs, accommodation and the cost of providing an interpreter, when one was necessary.
Almost all of the applications for judicial review lodged with the High Court by the ICI have been settled before a hearing. This indicates that the Government was not prepared to stand over decisions made that affected migrants’ lives and rights. It also demonstrates the high cost and inefficiency resulting from the fact there is no existing alternative to applying for a judicial review of immigration-related decisions.
In order for justice to be seen to be done, appointments to any review tribunal should be made by an independent commission. The ICI believes that tribunal members must not only be legally qualified, in order to be able to deal with matters potentially affecting human and constitutional rights of migrants and their families, but that they should also have relevant expertise.
The ICI’s submission to the Government on the Immigration, Residence and Protection Bill 2008 (see below) included an amendment for the establishment of an independent appeals mechanism. We will continue to campaign for the establishment of a tribunal through our lobbying and strategic litigation.
Article “Access to an Effective Remedy Challenging Immigration Decisions”, in “The Researcher" - February 2008