One may expect that organisations such as Amnesty International will be vigilant of the rights of those at risk of persecution, and will accordingly scrutinise in a critical fashion any legislation dealing with such persons. It is also, however, reasonable to expect that any criticisms will be based on what such legislation actually says and does, rather than (as in Ursula Fraser's article of November 20th on this page) what is in part fanciful interpretation and in part inaccurate.
The opening sentence of her article contains the first misrepresentation. Implementation of the Refugee Act 1996 was deferred not, as she alleges, "because of delays in formal implementation" - a phrase which implies foot-dragging - but because it became very clear soon after its passage in June 1996 that the structures for dealing with asylum claims, in the form provided in the Act as passed, were incapable of dealing with the volumes of claims being made in the State. That is why, when I took office in mid-1997, as part of the job of tackling the growing asylum-seeker crisis, I set about devising the extensive amendments necessary to make it work, while not interfering with its basic philosophy.
That philosophy is that there should be an investigation of each asylum claim by an independent entity (the Refugee Applications Commissioner), whose recommendation in each case can if necessary be appealed to another independent body (the Refugee Appeals Tribunal), with an opportunity for an oral hearing of that appeal. My role at the end of those processes is confined to deciding whether or not to accept the final recommendation - which, if positive, must be accepted. The Act as implemented on November 20th contains all of those features.
Odd, then, to see references to the involvement of the Department of Justice (why not give it its correct name?) deeming a claim to be manifestly unfounded - a function reserved to the independent Refugee Applications Commissioner under the Act. Is the suggestion that notwithstanding the implementation of the Act, an end towards which I and my officials have worked long and hard and are very pleased now to have achieved, there should be duplication of the commissioner's role in the Department?
Ms Fraser offers the scenario of an asylum-seeker being detained simply because she arrived in the State on false papers. A look at the bases for detention under the Act shows that Ms Fraser has ignored the all-important element of "reasonable cause" in the relevant provision: the example she posits could not possibly result in detention of the asylum applicant because possession of forged identity documents was perfectly reasonable for the purpose of fleeing the country of persecution. But such attention to the actual language of the Act wouldn't allow for such a debating point to be made.
She makes the misleading assertion that asylum-seekers must correspond with the Department by registered post. An exhaustive trawl of the Act, and of the regulations made under it, reveals no such demand.
She goes on to say that the Act cuts across what the UN Convention relating to the Status of Refugees says about asylum-seekers: but that convention says nothing at all about asylum-seekers, and only addresses the right of refugees. She suggests that the constitutional protections of our criminal law are not available to asylum-seekers - a totally unfounded assertion.
MS Fraser goes on to criticise the Refugee Act for its provisions on carrier liability - provisions which are not in the Act at all, and in fact are being separately developed. That does not stop her from reading them into the Act and excoriating them sight unseen.
Finally, on the subject of time limits, she claims that the Act has shortened those that were in operation under the administrative scheme: this is also wrong. The time limit for appeal in normal cases was a fortnight; it's now three weeks (15 working days, to be precise). The time limit for appealing a decision that a claim is manifestly unfounded was seven working days; it's now a fortnight (10 working days).
She says that the 14-day period for commencing judicial review proceedings in immigration and asylum cases contrasts with what she describes as "the normal six-month period allowed to an Irish citizen". That is wrong on several counts.
There is no special limit for judicial review that applies to Irish citizens as against others; the general rules of court governing such matters require the persons seeking judicial review to apply promptly, so that (depending on the subject matter) a three-day delay could be enough to exclude one; and the normal outside limit in those rules is three months, not six as Ms Fraser claims. Moreover, in all cases the court has discretion to extend the time limit, a feature commented on favourably by the Supreme Court in its recent judgement approving the constitutionality of the judicial review arrangements for immigration and asylum cases.
I have no difficulty with criticisms based on what is actually under scrutiny. But the inventive approach of Ms Fraser does, I suggest, display a disregard of the plain words of the Act.