The appeals stage of the asylum process is neither transparent nor consistent, according to a major report to be published today.
The report, Asylum in Ireland: the Appeal Stage, was commissioned by the Irish Refugee Council and written by Ms Catherine Kenny of the Irish Centre for Human Rights in Galway. The director of the research was Dr Joshua Castellino.
This is the third in a series of reports on the asylum process commissioned by the Irish Refugee Council. The first, which examined the initial stage in asylum applications, concluded that this was flawed by lack of knowledge of the circumstances giving rise to people seeking asylum among those hearing applications, and by various procedural shortcomings.
The second, on the use of the "manifestly unfounded" category to fast-track refusals of asylum, was also critical of certain aspects of the procedure.
This report also recommends a number of improvements in the system. At the outset, it points out that the quality of decision-making at first instance, the subject of its first report, clearly leaves something to be desired, as 86 per cent of these decisions went to appeal in 2002. One in four of these appeals was upheld.
The Refugee Appeal tribunal came into operation in 2000. It consists of a chairman and other such ordinary members as the Minister considers necessary and they must be solicitors or barristers with at least five years experience.
Its function is to consider appeals against refusals by the Office of the Refugee Applications Commissioner, the first body which hears applications for asylum status. Hearings are conducted in private and the applicant is entitled to legal representation. The tribunal completed 5,291 appeals last year, up from 3,422 in 2001.
Barristers and solicitors who represented asylum-seekers were contacted by the researchers and asked for their views of the process. Ms Kenny also sat in on a number of appeals.
According to the report, the attitude of the legal representatives was mixed. While generally they considered the appeals were conducted in a proper manner, they had serious concerns over the issue of consistency, with only 13 per cent agreeing with the statement: "In general, there is consistency between the recommendations of members of the tribunal."
Some commented that outcomes were more dependent on the identity of the member hearing the case than on the merits of the case. However, Ms Kenny said it was not possible to verify these remarks, as no statistics are made available on decisions of individual members.
The lawyers also reported dissatisfaction with the manner in which the tribunal dealt with sensitive issues, with only one in five considering that such issues, including sexual assault and torture, were dealt with in an appropriate manner. Some also commented on a lack of cultural sensitivity on the part of certain tribunal members.
They were also concerned with the recording of the proceedings. Apart from a pilot project, the tribunal member him/herself takes notes and this is the only record. In addition, decisions are not published and 86 per cent of the lawyers involved favour the publication of the reports of the hearings, with the identity of the applicant withheld.
They were also concerned at an over-emphasis on the credibility of the witness, where the giving of additional information, for example, gave rise to accusations of inconsistency.
There was also a preoccupation among some tribunal members with how the applicant got to Ireland and why this country was chosen, neither of which are referred to in the legislation. One lawyer noted that some tribunal members were "openly disdainful" towards applicants.
There was concern also at the lack of specialised training in refugee-related matters and in inquisitorial, rather than adversarial, skills among the members.
The quality and consistency of language interpretation was also criticised, with some interpreters lacking sufficient command of English, and others not translating exactly what the applicant said.
The report concludes with 15 recommendations to improve consistency, transparency and sensitivity at the appeals stage of the asylum process.
Main Recommendations
The procedure for appointing members of the Refugee Appeals
Tribunal should be open and transparent, by way of open
competition rather than at discretion of the Minister.
There should be provision for the removal of members whose
judgments consistently fall below an accepted standard.
Tribunal decision should be published, while maintaining the
anonymity of the applicants.
There should be consistency between decisions of tribunal
members and, where possible, appeals should be heard by
panels of three.
Applicants should be given the benefit of the doubt when they
provide a credible and coherent account of their fear of
persecution.
Tribunal members should adopt gender guidelines similar to
those used by the Immigration Appeals Authority in Britain
and there should be training in the effect of torture and
trauma.
Appeal hearings should be inquisitorial rather than
adversarial, in line with the UNHCR handbook.
Interpreters should be fully qualified, trained and impartial
and screened to ensure no conflict of interest, like working for
the embassy of the country from which the applicant fled.
Appeals should not just take place in Dublin.
The Refugee Legal Service should continue to be adequately
resourced and all survivors of torture should be able to obtain
free medico-legal reports