Why is Ireland still placing people detained for immigration-related purposes in prisons?

Why is Ireland still placing people detained for immigration-related purposes in prisons?

stephane333/flickr. (CC BY-SA 2.0)

On 18 July 2017, Paloma Aparezida

Silva-Carvalho, a 24-year-old Brazilian woman, was detained at

Dublin Airport. Paloma was entering Ireland to visit the Muller-Wieland family

in Galway, for whom she had worked as an au pair the year before. However,

despite evidence of her return flight and providing the contact details of the

Muller-Wieland family, she was accused by immigration officers of entering

Ireland to work without a valid permission. She was subsequently denied entry

to Ireland (‘refused leave to land’) and detained in Dublin’s Mountjoy Prison

in the Dóchas Centre. 

Paloma spent the night in prison. However, following significant media

attention and political pressure garnered by the Muller-Wieland family and

their community, she was released and granted 10 days to stay in the country in

a discretionary decision by the Minister of Justice and Equality. 

The ensuing public outrage and shock at Paloma’s treatment demonstrated

how little is known and discussed about immigrant detention and refusals of

leave to land in Ireland. Yet, Paloma’s experience is far from exceptional,

with over 28,000

individuals refused leave to land between 2008 and 2016. Of that

figure, Brazilian is the nationality most frequently refused entry, despite the

fact that people from Brazil do not require a visa to enter Ireland. 

In comparison to many countries in Europe, the number of individuals

detained for immigration-related purposes in Ireland is relatively low. Yet, Ireland is

one of the few countries in

Europe that continues to use prisons as designated spaces for immigration-related

detention. That is, for individuals who have neither been accused or convicted

of a crime in the state.

Ireland has faced continuous international criticism for its practice of

immigration detention, most notably from the European Committee for the Prevention

of Torture and Inhuman or Degrading Treatment or Punishment (CPT). But despite this

criticism, Ireland continues the practice of placing individuals detained for

immigration-related purposes in criminal facilities.

In February 2018, Nasc, the Migrant and Refugee Rights Centre based in

Cork, released the ‘Immigration

Detention & Border Control in Ireland: Revisiting Irish Law, Policy and

Practice’ report, which takes as its starting point Mark Kelly’s seminal

research on the area of immigration-related detention in Ireland, first

published in 2005. The 2018 report is based on over two years of

research, which included interviews with migrants and asylum seekers detained

due to refusals of leave to land, as well as those detained as protection

applicants and pending deportation. Throughout this research it became clear

that little has changed in the area since 2005, and there continues to be a

lack of safeguards and transparency in border control practices and

immigration-related detention in Ireland.

Border

controls: a two-tiered, discretionary system

The system of border control in Ireland today developed in an ad hoc

manner and relies significantly on the discretionary decisions made by

immigration officials on duty. In our report, we examined what happens after an

individual is refused leave to land by the on-duty immigration officer and the

safeguards in place for those individuals following their refusal and

subsequent detention. These safeguards are based on those employed in Kelly’s

2005 report, key international human rights legislation, EU legislation, and

principally, CPT recommendations.

The key safeguards examined include: (1) the right to not be held

incommunicado; (2) access to legal representation; (3) access to medical

attention; (4) access to information on the reasons for detention and an

explanation of one’s rights once in detention; and, (5) access to a right of

appeal.

With the above five safeguards as points of analysis, the report demonstrates

how very few of these safeguards and protections are granted in law under the

Immigration Acts (2003; 2004) to assure the rights of those refused leave to

land at ports of entry. Strikingly, it is only when an individual is admitted

to a prison that some of these key safeguards are met. 

It is only when an individual is admitted to a

prison that some of these key safeguards are met.

Eight individuals

who had been refused leave to land at Dublin Airport and were being detained at

Cloverhill Prison in Dublin were interviewed for this report

between 2015–2017. On the whole, these individuals reported that the majority

of the above five safeguards were not met at Dublin Airport when they were

denied entry.

Although all eight individuals

interviewed knew the reasons for the refusal of leave to land, five of the

eight did not understand why these reasons applied to them. In addition, a

number expressed difficulty in understanding the refusal due to a language

barrier, with, in some cases, no interpretation being offered to those refused

and in other cases, the wrong language for interpretation being used.

Of particular concern is the lack

of access to justice and to communicate with a third party once an individual

has been refused leave to land. Of the eight interviewed, six expressed

frustration with the confiscation of their phones and their subsequent

inability to contact a third party of their choice.

A further area of concern is the

lack of access to justice once an individual has been denied entry. In Ireland,

the venue for an appeal of a decision of refusal of entry is the High Court,

where cases typically take a number of years to be heard. Thus, reviews are highly

unlikely to take place and result in a grave financial and temporal burden –

not only on the individual but also on the state and its resources. Of the eight individuals

interviewed who were refused leave to land, only one individual was pursuing

legal action.

With very few High Court proceedings pursued following a refusal of

leave to land, there is not only a concerning lack of recourse for individuals

refused entry but also a resultant lack of accountability for the wide powers

of discretion available to and exercised by immigration officers. There is an

urgent need for the establishment of clear right of appeal against a decision

to refuse leave to land.

Given the absence of legal

safeguards and basic rights, such as access to a lawyer; medical treatment; or

a lack of a real and substantial review of a decision, the people detained in

the airport, especially those held for protracted periods of time, are

effectively detained in a no man’s land and in a setting that sits outside the

law.

Verifying information at the border

In the context of Nasc’s research, it was communicated to us by those we

interviewed in the Department of Justice and Equality that every effort is made

by border control officials to verify information supplied to them by people

seeking to enter the country.

Nonetheless, many of those

interviewed for this research reported that not every effort was made by the

acting immigration officer to verify their information, nor was all information

taken into account before a final decision was made. Two Hong Kong nationals

refused leave to land who were travelling to Ireland to attend an English course

were deemed to have insufficient funds. They felt that the immigration officer

did not take all information into account:

“They didn’t allow us to prove we had some funds. I told them we had

money in Hong Kong. I can’t give the certificate now, because it is in China.

How do you know I don’t have enough funds, if you don’t give me a chance to

show you, if you don’t give me time?”

Further to this, border controls in Ireland currently operate on a

two-tiered system wherein Dublin Airport has recently civilianised their border

control management with civil servants from the Irish Naturalisation and

Immigration Service, while all other ports of entry continue to be operated by

the Garda National Immigration Bureau (a wing of the Irish police force). With

different training and institutional structures, we would be concerned with

regard to the consistency of decisions made at ports of entry.

An area of particular concern in verifying information is access to the

asylum system. In law, any individual who presents at the border has the right

to seek asylum in the state. However, our research found that not all claims for

asylum are being heard at the port of entry, with a concerning number of

individuals from regions of conflict or humanitarian concern being refused

leave to land or ending up in prison before their case for asylum can be

submitted. Of the previously mentioned figure of 28,000 individuals refused

entry between 2008 and 2016, over 2000 of these

individuals were from areas of conflict and/or of humanitarian

concern. 

One detainee interviewed while in Cloverhill Prison wished to seek

asylum in Ireland. He travelled from Sudan on an Eastern European passport and

was refused leave to land on the basis that it was not a valid passport. He

felt that the immigration officers were not receptive to his side of the story:

“I said, ‘I want to seek asylum.’ They said no, because of the passport. They

didn’t want to listen. They said ‘Yes, yes sit down there.’ I answered things, but

they didn’t listen. They didn’t want to know about my situation, my country.”

Immigration officers need to be sufficiently trained to recognise

individuals who may be interested in applying for asylum, including in

situations in which the language may not be explicitly used. An inability to

recognise applicants for asylum and subsequently refusing them leave to land,

would mean Ireland is in violation of a key tenet of the 1951 Geneva Convention

for Refugees and the subsequent protocol of non-refoulement. 

Places

of detention: prisons and garda stations

In his 2005 report, Mark Kelly criticised that Ireland’s only spaces of

detention were Garda stations and prisons. Thirteen years on, the spaces of

detention for immigration-related purposes remain the same in Ireland.

The report found that those being refused leave to land are

unnecessarily being held in prisons and are not being returned on the next

available flight back. In the case of a Somali man with refugee status in a

Scandinavian country, there was no flight back that day. He was told he might

be removed two days later. He offered to buy his own ticket back home but was

informed that “that’s not how it works”. Another detainee, from Ukraine, flew

on his Romanian passport (considered a fake by immigration authorities) from

Bucharest and had a return flight booked for 10 days later. He stated, “It is

my first time in prison. I am very frightened. There have been many flights

every day. Why is it taking so long? For three days I am here.”

From the outset, it is important to recognise that there have been strong calls for

prison reforms more broadly in Ireland, particularly with regard to

overcrowding and high levels of criminality. Although beyond the scope of our

report, we recognise and align ourselves with those broader calls for reform. 

“if you don’t speak

English, they play with you.” 

In our research, those detained for immigration-related purposes

reported their experiences of this overcrowding and levels of criminality. A

Congolese man detained in Cloverhill for a total of 2 months reported that

during his time in prison the rooms were overcrowded: he was the fourth

individual in a room for three, and he explicitly stated that he stayed away

from Irish prisoners as a “fight always broke out.” Another Somalian individual

who was detained in Cloverhill Prison stated that he got hit on the back of his

head in the prison pool room and that “if you don’t speak English, they play

with you.”

One interviewee from Pakistan in Cloverhill Prison awaiting deportation

stated that he began a job in catering in the prison kitchens, but he described

the job as dangerous as “there were no cameras, it was easier to take you down.

There were many knives. There were misunderstandings. Someone tried to bully

me. I am a peaceful person. I don’t look for fights.” 

Prisons are inappropriate places of detention for individuals who have

neither been accused or convicted of a crime in the state. Nonetheless, it is

paradoxically in prisons where individuals detained for immigration-related

purposes in theory have the most rights and protections in the whole

immigration detention process.

The future of immigrant detention in Ireland

The Nasc report makes a number of key recommendations to the Irish

government in the fields of border control and immigrant detention. We call for

the granting of access to key safeguards from the outset of a refusal of leave

to land and throughout the detention process, including the right to access

medical attention, to not be held incommunicado and to access the asylum

procedure, among others.

The report strongly advocates for the use of alternatives to detention,

which are already legislated for in Irish law, and the need for greater

transparency within border control and detention practices with the regular

publication of relevant statistics and information.

Finally, Ireland has signed but not ratified the Optional Protocol on

the Convention Against Torture (OPCAT), which addresses monitoring and

transparency of detention and borders, and it is strongly recommended that this

is ratified this as soon as possible.

With Ireland set to open its first immigration detention facility at

Dublin Airport in 2018, and the tender for this construction announced

earlier this week, our report urges the Irish government to ensure that

this centre is not a criminal institution and is a space in which all legal

safeguards and the material and psychological conditions recommended by the CPT

are met.

To read the full report, please click here.

, https://www.opendemocracy.net/beyondslavery/emily-cunniffe/why-is-ireland-still-placing-people-detained-for-immigration-related-pu

http://asylumireland.ml/why-is-ireland-still-placing-people-detained-for-immigration-related-purposes-in-prisons/