For almost 10 years, Ireland has been one of only six countries around the world that enjoys a pre clearance arrangement with the United States. What this means in practice is that US immigration rules are applied by US officials in Irish airports, including the executive order signed by Donald Trump on January 27th.
This order places a permanent freeze on refugees from Syria, and a 120-day ban on citizens of seven Muslim-majority states, from entering the US.
There are credible reports of visa holders who happen to be citizens of these states, and of dual citizens, being turned away, or encouraged to give up their visas.
Introduced under the banner of ‘security’, the order is clearly discriminatory - rather than undertake individual risk assessment of travellers, it simply imposes a blanket ban and brings with it no security benefits whatsoever.
Lawyers all over the US report that federal court orders staying its application are being ignored, and the Department of Homeland Security has made it clear that it will continue to apply the executive order. Commitment to the rule of law in all parts of the US government is in question.
However, the terms of the agreement signed by the US and Ireland in 2008 make it clear that it is predicated on a mutual assumption that this very rule of law will be adhered to. Article II of that agreement states: “Nothing in this Agreement shall be construed as diminishing the rights enjoyed by individuals under the Constitution and laws of Ireland and, where applicable, the United States”.
Frontier
Under the agreement, the gardaí and customs and play some role in the pre clearance areas, and anyone denied entry onto a US-bound flight is treated as having arrived at the frontier of the Irish State and can, thus, make applications for protection and so on from Irish officials.
Thus, we know that what happens in these areas is a matter of concern for Irish law. We also know that Trump’s executive order subverts international refugee law, and constitutes discrimination based on nationality as prohibited by both US domestic law and international law.
There is a strong possibility that by facilitating the application of this order on Irish soil, the Irish Government is itself violating its international legal obligations, not least to EU citizens who hold dual citizenship and to whom we owe a clear and non-negotiable duty of non-discrimination under EU law.
What we do not know, for certain, is how many people (if any) have been directly impacted by this order in Dublin and Shannon and what practical assistance Irish officials may be offering in the operation of the pre clearance area and application of this order at this time.
However, we do know that there is a real possibility that Trump’s executive order is exposing people to serious human rights violations and harm, and that the continuation of our pre clearance arrangements with the US may be playing a role in this. There is, thus, a serious question to be asked about how the Irish State reacts.
Urgent review
A group of Irish NGOs has already echoed the calls of Minister for Children Katherine Zappone for the Government to undertake an urgent review of the operation of pre clearance arrangements at this time. They have also asked for clarification of the applicable law and of the role of Irish officials in pre clearance areas. Dozens of lawyers have joined together to offer free advice and assistance to anyone who finds themselves caught up by this order in Irish airports (the details are on www.humanrights.ie), and tens of thousands of people have signed a petition urging the Taoiseach not to undertake the annual St Patrick's Day visit to the White House.
The question now is what Enda Kenny and the Cabinet will decide to do.
Regardless of the agreement between the US and Ireland, and regardless of the unquestioned economic benefits that this pre clearance arrangement brings with it, the State remains responsible for compliance with the law, including international human rights law, in Irish airports.
Quite beyond the formal question of legal responsibility, there are clear questions of ethics at play here. The Government must decide whether it is willing to stand up for human rights, for the rule of law, and for common decency and compassion in the face of a clear constitutional crisis and moral decline at the highest levels of US government.
Throughout last weekend, lawyers and ordinary people all over the US took to the streets and to the airports to stand against discrimination and illegality. We must now decide whether to stand with them.
Fiona de Londras is professor of global legal studies at the University of Birmingham and founder of www.humanrights.ie