The Supreme Court has cleared the way for an examination by the High Court of allegations of bias against a member of the Refugee Appeals Tribunal and, by implication, against the tribunal itself. The refusal rate of refugee appeals - reported to be virtually 100 per cent in the case of this member, James Nicholson, who has heard up to 1,000 cases - can now be examined and compared to the outcome of decisions of other members.
The case began in May last year when a Congolese asylum-seeker and two others took judicial review proceedings against the tribunal and Mr Nicholson based on claims that there was no chance of a positive outcome of an appeal heard by him. Seven solicitors, all experienced in refugee law, signed affidavits stating that they had to advise clients that there was no prospect of a positive decision from Mr Nicholson. As part of the case, statistics relating to his decisions and those of other tribunal members were sought. On foot of a Supreme Court ruling last week, these statistics will be produced and the claim of bias will be examined by the High Court.
The Refugee Legal Service, the state agency which provides legal aid to asylum-seekers, Refugee Council and other bodies have claimed for years that the outcome of cases before the tribunal depended more on the identity of the tribunal member than on the merits of the case. Some tribunal members have expressed disquiet themselves, unsuccessfully seeking statistics on the outcome of cases and expressing concerns about the lack of consistency in decisions. Two resigned in disgust.
It is good that these issues can be aired in the courts at last. Whatever the outcome of this case, however, it is likely to come too late to save the reputation of the Refugee Appeals Tribunal, which has threatened Ireland's standing as a country where asylum-seekers can expect a fair hearing. Even the normally reticent UNHCR, while praising Ireland's system in general, has expressed reservations about the manner in which the system operated in certain areas.
Many of the criticisms of the Refugee Appeals Tribunal were implicitly acknowledged by the last minister for justice, Michael McDowell, who proposed its abolition and replacement by a new permanent body - the Protection Review Tribunal - when he published the scheme of a Bill on immigration and asylum last September. His successor, Brian Lenihan, should not wait for this case to go through the courts before acting to put in place a refugee appeals system that has the confidence of those working in the area and the unqualified respect of the international community.