The Refugee Act, the product of the Rainbow Coalition of Fine Gael and the Labour Party, was surrounded by controversy almost from its inception in 1996.
It was piloted through the Dail by the Labour Party's junior minister, Ms Joan Burton, but an acrimonious exchange soon erupted over whether it was she or the then minister for justice, Mrs Nora Owen, who was responsible for ensuring its implementation.
In the event, although passed in 1996, it remained unimplemented when that coalition government was replaced by the Fianna Fail/PD coalition in 1997 and Mr John O'Donoghue took over as the Minister responsible.
His Department was still directly responsible for handling refugee applications. This was one of the issues the Refugee Act was designed to deal with. It provided for the appointment of a Refugee Applications Commissioner, envisaged as a single individual, a qualified lawyer with 10 years' experience.
The post was advertised in January 1997 at a salary of £52,216, but in June of that year Mr Paddy Cooney, former Fine Gael minister for justice, obtained an injunction preventing implementation of the Act. He was challenging its stipulation that the Refugee Applications Commissioner should be under 65.
It soon became clear that the Department of Justice was in no hurry to see this case settled and the Minister indicated his intention to bring in amendments to the Act. As the number of asylum-seekers grew, few disputed the need to increase its provision for dealing with applications.
The Act also provided for an appeals procedure under which asylum-seekers could appeal unfavourable decisions. Several independent Refugee Appeals Author ities were appointed, but they operated under the aegis of the Department of Justice.
Implementation of the Act was also delayed by indecision among Government departments about the extent and form of legal aid for asylum-seekers. Eventually it was agreed that a system of legal aid should be set up under the Legal Aid Board.
As the legal vacuum continued, a number of court decisions created legal facts on the ground covering the rights and treatment of asylum-seekers.
The most significant was a High Court decision that the Minister did not have the right, under existing legislation, to deport those refused refugee status. The Government moved to rush enabling legislation through the Dail. This was the Immigration Act, which effectively amended the Refugee Act. It reintroduced the right of the Minister to deport and provided for the fingerprinting of asylum-seekers. However, it was criticised for confusing immigration and asylum.
The amount of litigation being generated by this issue worried the Department and a number of amendments to another Act, the Illegal Immigrants (Trafficking) Act, were proposed. Among the most controversial were a limitation on the right of asylum-seekers to seek a judicial review of decisions and giving the Garda the power to detain asylum-seekers. These were upheld by the Supreme Court following a referral of this portion of the legislation by the President.
ALTHOUGH the amendments were criticised, many structural provisions of the revamped Act have been welcomed by those working in the area. These include the establishment of a body to deal with applications. However, there is no requirement that the head of this body be a lawyer, let alone anyone qualified in refugee or human rights law.
The appeals authorities are also to be brought together under a Refugee Appeals Tribunal, to be headed by Mr P.J. Farrell, head of finance and operations at McCann Fitzgerald. Refugee lawyers hope this will lead to consistency in decisions. However, there has been surprise in legal circles at the appointment of a taxation expert rather than a lawyer with expertise in refugee law.
The Act also provides for the setting up of a Refugee Advisory Board, representative of Government departments and of NGOs and professionals. There is no sign of that yet, although a spokesman for the Minister said he "envisages its establishment at an early date".
