ISSUE 4 DECEMBER 2006

The Researcher

Published by The Refugee Documentation Centre [email protected] Welcome to the fourth issue Subsidiary Protection under Convention definition of a refugee. The of The Researcher. Irish law subsidiary protection measures contained in the Qualification Directive are stated to DC be “complementary and additional to the There has been a lot of change in recent refugee protection enshrined in the Geneva months with the publication of the Scheme Patricia Brazil LLB, Convention”. for an Immigration, Residence and Protection MLitt, Barrister-at-Law, Bill, the coming into force of Subsidiary Lecturer in Law Trinity Regulation 2(1) of SI 518 of 2006 provides Protection and the making available by the College Dublin that a person eligible for subsidiary Refugee Appeals Tribunal of previous protection means a person (a) who is not a Decisions. national of a member state, (b) who does

Introduction not qualify as a refugee, (c) in respect of This issue focuses on Subsidiary Protection. th We are particularly grateful to Patricia Brazil, On 10 October 2006, the European whom substantial grounds have been Barrister-at-Law and Lecturer in Law at Communities (Eligibility for Protection) shown for believing that the person Trinity College Dublin for her article, Regulations 2006 (SI 518 of 2006) came concerned, if returned to his or her country ‘Subsidiary Protection Under Irish Law’ and into force in Ireland. These Regulations are of origin, would face a real risk of to Maria Maguire, Solicitor in Galway RLS intended to give effect in Irish law to the suffering serious harm, (d) to whom the for her contribution to our understanding of European Union Directive on Minimum exclusion clause in Article 13 does not the same legislation, ‘A Positive Obligation Standards for the Qualification and Status apply, and (e) is unable, or owing to such to Protect’. I know that Refugee Legal of Third Country Nationals or Stateless risk, unwilling to avail himself or herself Services are appreciative of Emilie Wiinblad Persons as Refugees or as Persons who of the protection of that country. A number Mathez of UNHCR for her training on otherwise need International Protection of commentators have expressed concern Subsidiary Protection, which was given at and the Content of the Protection Granted at the restriction of this definition to third- short notice to them at the end of October. (Directive 2004/83/EC: “the Qualification country nationals, on the basis that such a Emilie kindly agreed to publication of a Directive”). The main objective of the limitation is incompatible with the summary of her training in this issue. Directive is to ensure that member states prohibition on discrimination contained in 3 apply common criteria for the article 3. In addition, we are indebted to Dr Ronit identification of persons genuinely in need Lentin of Trinity College Dublin for her Both the Qualification Directive and the socio-political critique, ‘Between Refugee of international protection, and to ensure the availability of a minimum level of Regulations define an application for and Citizen’. John Stanley BL examines The “international protection” as a request “IBC 05” Scheme and the Rights of Irish benefits for such persons in all member 1 made by a third country national or a Citizen Children’. Also in this issue, Fr states. The purpose of this article is to Michael Begley describes the education outline the scheme of subsidiary protection stateless person for protection from a services of Spiritan Asylum Services provided for under SI 518 of 2006, to member state, who can be understood to seek refugee status or subsidiary Initiative (Spirasi). Bobby Pringle of the address the class of persons entitled to seek 4 Dublin Mission of the International subsidiary protection, and to outline key protection. An issue which is not Organisation for Migration writes of the aspects of the substantive content of such immediately apparent from either the IOM’s newly launched project, the Directory protection. Directive or the implementing Regulations, of Return for Asylum Seekers (DORAS). is the precise relationship between these What is subsidiary protection? two separate applications. In particular, by On the home front, RDC staff are well It has long been recognised that the failing to clarify the precise meaning of the represented in this issue: Carol Doyle has provisions of the 1951 Geneva Convention second limb – (b) who does not qualify as 5 written of COI Network III; Isabel Duggan on the Status of Refugees do not address a refugee – it may be arguable that an gives us an update on RDC library books; the situation of all persons in need of application for subsidiary protection is Patrick Dowling writes of COI from the international protection.2 Some of the most separate and/or severable from an perspective of an armchair anthropologist; common situations falling outside of the application for refugee status. This is David Goggins investigates the question, international refugee regime relate to potentially significant, as if the two ‘Who are the Janjaweed?’ and I look at two applications are severable it may be the issues: the situation of Christians in Iraq and persons who can demonstrate a well case that an application for subsidiary the crossing of the Gulf of Aden by 22,000 founded fear of persecution but who people in smugglers’ boats. cannot link such persecution to a protection can be made by a person present Convention reason (also known as “the within this jurisdiction who has previously We would like to wish all our readers a merry Convention nexus”); and persons who are been refused refugee status by another Christmas and a happy New Year! at risk of serious harm owing to a serious member state. It would appear that there and widespread deterioration in public was an attempt to deal with this issue in order in the country of origin. The concept the Regulations, in the definition of a Articles and summaries contained in The of complementary or subsidiary protection “protection applicant” as a person who has Researcher do not necessarily reflect the arises from the form of protection offered made an application for protection in the views of the Management of the RDC or by some States to persons who fail to meet State and whose application has not been the Legal Aid Board the stringent requirements of the (a) determined, (b) withdrawn or deemed

PAGE 2 THE RESEARCHER to be withdrawn, or (c) transferred to Hathaway’s comments in the context of invited to make representations pursuant to another country. The basis on which this refugee status, the issue is not whether the section 3 of the 1999 Act, this would not definition was inserted is unclear, as there claimant is more at risk that anyone else in appear to have been achieved by the is no equivalent provision within the her country, but rather whether the risk of Regulations. The compatibility of any such parent Directive. Furthermore, this may serious harm is sufficiently serious to purported limitation would furthermore not resolve the issue as it would appear substantiate a claim to subsidiary remain to be tested against the parent that the Dublin II Regulation does not protection.8 If persons like the applicant Directive. apply to applications for subsidiary face serious harm in the country of origin, protection.6 Thus, a person may be entitled then in the absence of effective national The origin of the purported “triggering to seek subsidiary protection in this protection, the applicant is entitled to mechanism” for an application for jurisdiction notwithstanding the refusal of subsidiary protection. In order for subsidiary protection is Regulation 4(1)(a) their asylum application by another paragraph (c) to have a practical impact, of SI 518 of 2006, which provides that a member state, and on the basis that Dublin and to ensure the concept of subsidiary notification of an intention to deport shall II does not apply to applications for protection is not rendered illusory, include a statement that a person whose subsidiary protection, this State would be decision-makers must ensure that the issue application for refugee status has been obliged to accept and process such to be addressed is whether the applicant refused and who considers that he or she is application. faces a reasonable risk of serious harm, eligible for subsidiary protection, shall be and not whether that risk is identifiable to entitled to make an application for What is serious harm? the applicant alone. subsidiary protection to the Minister within The definition of “serious harm” is also the 15 day period contained within the contained in Regulation 2(1), which states Who may apply for subsidiary notification.16 Any such application is that serious harm consists of (a) death protection? expressed to be in addition to the penalty or execution, (b) torture or The question of who may apply for entitlement to make representations to the inhuman or degrading treatment or subsidiary protection goes to the heart of Minister pursuant to section 3(3)(b) of the punishment of an applicant in the country the impact of these Regulations upon Irish Immigration Act 1999. Indeed, it is clear of origin, or (c) serious and individual law. Article 18 of the Qualification that subsidiary protection comprises an threat to a civilian’s life or person by Directive provides that “[m]ember states intermediate level of protection, and is not reason of indiscriminate violence in shall grant subsidiary protection to a third intended to replace the concept of situations of international or internal armed country national or a stateless person humanitarian leave to remain. Regulation conflict. Paragraphs (a) and (b) are eligible for subsidiary protection in 4(5) provides that where the Minister uncontroversial, reflecting a number of accordance with Chapters II and V”.9 In determines that a person is not a person international instruments, including the marked contrast to this mandatory eligible for subsidiary protection, the United Nations Convention Against obligation, Regulation 3 of SI 518 of 2006 Minister shall proceed to consider whether, Torture and Protocol 6 and Article 3 of the purports to limit the applicability of the having regard to the matters contained in 17 European Convention on Human Rights. Regulations to a specified class of section 3(6) of the 1999 Act, a Paragraph (c) represents the most “protection decisions” made on or after the deportation order should be made. significant element of the scope of coming into operation of the regulations. Furthermore, Regulation 4(6) provides that subsidiary protection for the purposes of The class of such decisions is stated as nothing in the regulations shall affect the Irish law, in that it “reflects the existence follows: (a) a recommendation by the discretionary power of the Minister under of consistent, albeit varied, State practice Refugee Applications Commissioner,10 (b) section 3 of the 1999 Act. of granting some form of complementary an affirmation of such recommendation,11 The absence of any equivalent limitation to protection to persons fleeing the or a recommendation to set aside a the triggering mechanism in the indiscriminate effects of armed conflict or negative decision of the Commissioner and Qualification Directive has already led to generalised violence without a specific link a recommendation that the applicant 7 queries being raised as to the validity of to Convention grounds.” should be declared to be a refugee by the 12 the transposition of that Directive Refugee Appeals Tribunal; (c) the contained in the Regulations. In Ugbelase Whilst paragraph (c) might appear at first notification of an intention to make a v Minister for Justice, Equality and Law glance to represent a welcome extension of deportation order under section 3(3) of the Reform18 leave was granted to the the scope of international protection for Immigration Act 1999 in respect of a applicant upon an ex parte application for persons at risk, a closer examination of the person whose application for asylum has 13 judicial review, challenging the refusal of wording of this provision gives cause for been refused by the Minister; (d) a the Minister to accept and/or process the concern. For example, regarding the nature determination by the Minister on an 14 applicant’s application for subsidiary of the threat, there would seem to be an application for subsidiary protection or status. The applicant sought to challenge inherent contradiction in requiring a person an application for humanitarian leave to 15 the refusal of the Minister to process her to demonstrate a “serious and individual” remain. threat to their life or person by reason of application for subsidiary protection, indiscriminate violence in situations of It is clear that no such limitations are which refusal was apparently based upon international or internal armed conflict. contained in the Directive upon which the fact that the applicant was a person in Surely it is the essence of indiscriminate these Regulations are based. There is no respect of whom a deportation order was violence that any person may be at risk, limitation of applications for subsidiary already extant. Finlay Geoghegan J irrespective of their individual protection to prospective applications in granted leave to the applicant to challenge characteristics or status? Such concerns the Qualification Directive; nor does it the Minister’s refusal to process and are compounded when recital 26 is contain any equivalent to the “triggering determine her application for subsidiary considered, which provides “[r]isks to mechanism” apparently required under the protection on the grounds that such which a population of a country or a transposing Directives, the trigger being decision was unlawful and ultra vires the section of the population is generally the issue of a notification pursuant to European Communities (Eligibility for exposed do normally not create in section 3(3) of an intention to deport. An Protection) Regulations 2006 (SI 518 of themselves an individual threat which examination of the provisions of the 2006), and that the said Regulations do not would qualify as serious harm.” This Regulations reveals a lack of clarity in exclude from their scope or ambit persons demonstrates an incorrect understanding of drafting; if indeed it was the intention to in respect of whom a deportation order has the relationship between risk to an exclude those persons already the subject been made. Significantly, leave was individual and situations of “generalised of a deportation order, or those who have, granted on the basis that a necessary, oppression”; to paraphrase Professor prior to the coming into force already been integral and essential element of the duty

THE RESEARCHER PAGE 3 on member states to grant subsidiary persecution or serious harm shall be investigated, such application for family protection under the Qualification regarded as being generally provided unity in order to determine the relationship Directive to a person eligible for such where reasonable steps are taken by a state between the applicant and the person who protection was a duty to consider and or parties or organisations, including is the subject of the application and that determine an application for such international organisations, controlling a person’s domestic circumstances. protection, and that the Minister’s refusal state or a substantial part of the territory of Regulation 16(3)(a) provides that subject to process and determine the applicant’s that state to prevent the persecution or to paragraph (5), the Minister shall grant application for subsidiary protection was suffering of serious harm. It is stated that permission in writing to a person to enter unlawful and in breach of the applicant’s such protection may be provided, inter and reside in the State if he is satisfied right to fair procedures, and was alia, where such actors operate an effective such person is a member of the family of furthermore in breach of Article 18 of the legal system for the detection, prosecution the applicant. “Member of the family” of Qualification Directive. Leave was also and punishment of acts constituting the applicant for these purposes is defined granted on the grounds that the persecution or serious harm, where the as follows: (a) where the applicant is Regulations were not being applied in a applicant has access to such protection. It married, his or her spouse, provided such manner such as to achieve the aims and is clear that both Regulation 2(1), and marriage is subsisting on the date of the results of the Directive, and that the Article 7 of the Directive from which it application for family reunification; (b) Minister had failed to transpose and/or derives, contemplate the provision of where the applicant is under the age of 18 implement the Qualification Directive into protection by non-State agents, which is and not married at the date of application Irish law correctly and properly and in capable of defeating an application for for family reunification, his or her parents; accordance with the Directive. subsidiary protection. The compatibility of or (c) a child of the applicant who, on the such “de facto protection” with date of the application for family unity is Exclusion from subsidiary international law is hotly contested; under the age of 18 years and is not protection Lambert notes that the Directive has been married. The language of Regulation Regulation 13(1) provides that a person is criticised in adopting this approach on the 16(3)(a), with the use of the mandatory excluded from being eligible for subsidiary grounds that “administrations or “shall”, indicates that there is no discretion protection where there are serious reasons international organizations are generally in the Minister to decline permission to for considering that he or she (a) has not parties to international human rights enter and reside to such persons, provided committed a crime against peace, a war treaties and are therefore left largely that the necessary conditions are met. crime, a crime against humanity, (b) has unaccountable for their actions”.21 committed a serious crime, (c) has been By contrast, regulation 16(4) provides that guilty of acts contrary to the purposes and Content of subsidiary protection subject to paragraph (5), the Minister may principles of the United Nations, or (d) grant permission to a dependent member constitutes a danger to the community or General of the family of an application to enter and the security of the State. Whilst this The content of subsidiary protection is reside in the State. Dependent members of provision is clearly influenced by Article detailed in regulations 16-19 of SI 518 of the family are defined in paragraph (4)(b) 1F of the Convention, the grounds for 2006. Regulation 15 provides that in the as any grandparent, parent, brother, sister, exclusion from subsidiary status are in fact application of regulations 16-19, the child, grandchild, ward or guardian of the wider than those which apply to persons special situation of vulnerable persons application who is wholly or mainly seeking refugee status, by reference to the such as minors (whether or not dependent on the applicant or is suffering commission of a “serious crime”. unaccompanied), disabled people, elderly from a mental or physical incapacity to Exclusion from refugee status pursuant to people, pregnant women, single parents such extent that it is not reasonable to Article 1F(b) of the Convention is with minor children and persons who have expect him or her to maintain himself or permissible only in respect of those been subjected to torture, rape or other herself fully. There is no equivalent persons who have committed a “serious serious forms of psychological, physical or provision in the Qualification Directive, non-political crime”. Although the precise sexual violence shall be taken into account. and it would appear that the Minister has definition of serious non-political crimes It is interesting to note in this context that exercised the discretion pursuant to Article remains the subject of debate within the recital 12 and Article 20(5) of the 3 of that Directive to introduce or retain international community,19 it is clear that Qualification Directive state that “the best more favourable standards for those allowing a person to be excluded from interests of the child” should be a primary eligible for subsidiary protection and the subsidiary protection on the basis of the consideration of member states when content of such protection; the broader commission of any serious crime greatly implementing the Directive. These category of dependent members of a extends the scope of exclusion. As provisions reflect the obligation contained family reflects the existing provisions of McAdam notes, “[o]nce it can be shown in Article 3 of the Convention on the s.18(4)(a) of the Refugee Act 1996. that a person has committed a ‘serious Rights of the Child that in all actions Finally, Regulation 16(5) provides that the crime’, there is no need to determine concerning children, the best interests of Minister may refuse to grant permission, or whether or not the crime is political or the child “shall be a primary may revoke any permission previously non-political in nature. Accordingly, consideration”. It has previously been granted, to enter and reside in the State to a subsidiary protection is not available to remarked that the Refugee Act 1996 makes 22 family member subject to either paragraph any person excluded from Convention (or “limited provision” for minor applicants, (4) or (5), either in the interests of national Directive) refugee status. In this respect, and there is no equivalent to the “best security or public policy, or where the subsidiary protection does not function as interests” requirement in Irish legislation person would be or is excluded from a residual status, since more people are on refugee law. refugee or subsidiary protection in excluded from subsidiary protection than 20 accordance with regulation 12 or 13. from refugee status.” Family Unity

Regulation 16 addresses the entitlement to family unity. Regulation 16(1) provides Permission to remain in the State Actors of protection Regulation 17 provides that subject to the The final element in the definition of that a person who has been deemed exclusion and cessation clauses, a person persons eligible for subsidiary protection eligible for subsidiary protection may who has been deemed eligible for refers to such person being unable, or apply to the Minister for permission to be subsidiary protection or a member of a owing to the risk of serious harm, granted to a member of his or her family to family of such person to whom regulation unwilling to avail himself or herself of the enter and reside in the State, with 16(3) or (4) applies shall be granted protection of that country. Regulation 2(1) paragraph (2) providing that the Minister permission to remain in the State for three provides that protection against shall investigate, or cause to be

PAGE 4 THE RESEARCHER years. This permission is stated to be refugee status, and also an agreement that 8 The Law of Refugee Status (Butterworths renewable, unless compelling reasons of the rules regarding refugee status should be 1991) at p.97. complemented by measures on subsidiary 9 Emphasis added. national security or public order otherwise 10 require. The implementing regulations thus forms of protection: see recitals 1-5. Pursuant to section 13(1) of the 1996 Act. 2 See, e.g., Hathaway The Law of Refugee 11 Such affirmation being made pursuant to apply a single residence entitlement; this is Status (Butterworths 1991) at p.26 where section 16(2)(a) of the Refugee Act 1996. in marked contrast to the provisions of the he argues for the existence of a broader, 12 Pursuant to section 16(2)(b) of the Refugee Qualification Directive, which specifies an “intermediate” category of refugee outside Act 1996. entitlement to reside for three years to of the Convention definition, based on 13 Pursuant to section 3(2)(f) of the persons granted refugee status (Article customary international law and comprising Immigration Act 1999. 24(1)), whilst beneficiaries of subsidiary “a right to be considered for temporary 14 Under Regulation 4(4). admission, whether by formal procedure or 15 Under Regulation 4(5). protection are entitled to a residence 16 permit which must be valid for at least one administrative discretion, on the basis of a Section 3(4)(a) of the Immigration Act need for protection. That is, customary 1999. year (Article 24(2)). international law precludes the making of 17 Which provides that “In determining

decisions to reject or expel persons who whether to make a deportation order in Conclusions come from nations in which there are relation to a person, the Minister shall have The Qualification Directive has not been serious disturbances of public order without regard to— (a) the age of the person; (b) the subject of universal approval; the explicit attention being paid to their the duration of residence in the State of the political compromises which were humanitarian needs”. [Emphasis in person; (c) the family and domestic necessary to secure the final draft are original] circumstances of the person; (d) the nature 3 regarded as having been achieved at the Thus, the House of Lords Select Committee of the person’s connection with the State, if price of diluting the concept of subsidiary on the European Union commented: “For a any; (e) the employment (including self- 23 major regional grouping of countries such employment) record of the person; (f) the protection. McAdam thus concludes as the Union to adopt a regime apparently employment (including self-employment) “[t]he Directive should not be viewed as an limiting the scope of the Geneva prospects of the person; (g) the character example of complementary protection for Convention among themselves would set a and conduct of the person both within and universal adoption. Much of its content has most undesirable precedent in the wider (where relevant and ascertainable) outside been determined by regional conditions international/global context. There is a the State (including any criminal and concerns, and its scope is far narrower danger that if States, on the basis of EU convictions); (h) humanitarian than protection principles under citizenship (i.e. nationality of a Member considerations; (i) any representations duly international human rights law, State), bar from refugee protection such a made by or on behalf of the person; (j) the group as the Roma, who may be persecuted common good; and (k) considerations of humanitarian law and international 24 on racial grounds, or other groups, who national security and public policy, so far as criminal law provide”. may be persecuted on religious grounds, they appear or are known to the Minister.” this would seriously undermine the 18 Finlay Geoghegan J, ex tempore, 13th However, the introduction of subsidiary effectiveness of Geneva Convention November 2006. protection to Irish law offers the potential protection within Europe”: Twenty Eighth 19 See, e.g., Hathaway The Law of Refugee for a significant extension of the protection Report (16 July 2002). Status (Butterworths 1991) at pp.221-226, afforded by this State to persons at risk in 4 Emphasis added. See Article 2(g) of the Goodwin-Gill The Refugee in International their country of origin. Prior to the Directive and Regulation 2(1) of SI 518 of Law (Clarendon Press 1996) at pp.101-108. 2006. 20 McAdam supra fn 7, at p.496. introduction of the Qualification Directive, 5 21 Ireland was one of only three member E.g. Is it necessary for an application for Lambert “The EU Asylum Qualification asylum to have been made and refused, or Directive, its impact on the jurisprudence of states of the EU whose national laws did can an application for subsidiary protection the United Kingdom and international law” not make specific provision for a be made upon receipt of legal advice that (2006) 55(1) ICLQ 161 at p.174. substantive scheme of complementary the claim for refugee status will not 22 See e.g. Moke v Refugee Applications protection.25 The only means of obtaining succeed, for instance because of a lack of a Commissioner Finlay Geoghegan J, High protection from the Irish state outside of Convention nexus? If it is necessary to first Court unreported, 6th October 2005. refugee status was by means of an make such application, does the Directive 23 McAdam supra fn 7, at p.516, concluding application for humanitarian leave to require the application for subsidiary that “[t]he Directive has had more success remain. Such applications are entirely at protection to be made in the same in harmonizing the scope of ‘refugees’ and jurisdiction as the application for refugee ‘beneficiaries of subsidiary protection’ than the discretion of the Minister, and an status? in defining the content of those statuses”. examination of the successful numbers of 6 This issue was considered by the 24 Mc Adam supra fn 7, at p.516. such applications indicates the rarity with Commission in its Communication to 25 Along with Belgium and the United which the Minister exercises his discretion Council and the European Parliament “A Kingdom: see Bouteillet-Paquet in this regard.26 Provided that decision- More Efficient Common European Asylum ‘Subsidiary Protection: Progress or Set- makers approach applications for System: The Single Procedure as the Next Back of Asylum Law in Europe? A Critical subsidiary protection with an open mind Step” {SEC(2004) 937} where the Analysis of the Legislation of the Member and apply the provisions of the Commission called for the extension of the States of the European Union’ in D scope of the Dublin II Regulation to include Bouteillet-Paquet (ed) Subsidiary Regulations in a manner that is consistent applications for subsidiary protection. Protection of Refugees in the European with the objectives of the Qualification 7 McAdam “The European Union Union: Complementing the Geneva Directive, the availability of subsidiary Qualification Directive: The Creation of a Convention? (Bruylant Brussels 2002) 226 protection may yet offer significantly Subsidiary Protection Regime” (2005) 26 The Department of Justice Annual Report improved rights to persons within this 17(3) International Journal of Refugee Law (2005) indicated that of 3,625 appeals jurisdiction who have fled their country of 461. McAdam also refers to the UNHCR rejected by the Refugee Appeals Tribunal origin in fear of serious harm, and for comment that “experience shows that most during that year, only 137 persons were whom return would constitute a significant civil wars or internal armed conflicts are subsequently granted temporary leave to rooted in ethnic, religious or political remain in the State. It should also be noted risk. differences which specifically victimise that whilst the Regulations provide that

those fleeing. War and violence are applications for subsidiary protection shall 1 Recital 6 of the Qualification Directive. themselves often used as instruments of be determined by the Minister, Head 54 of This Directive arose out of the agreement persecution”: UNHCR’s Observations on the Immigration, Residence and Protection of the European Council at it special the European Commission’s Proposal for a Bill indicates that such determinations shall meeting in Tampere on 15 and 16th Council Directive on Minimum Standards fall within the remit of the proposed October 1999 to work towards establishing for the Qualification and Status of Third Protection Review Tribunal. a Common European Asylum System. This Country Nationals and Stateless Persons as was agreed to require, in the short term, an Refugees or as Persons Who Otherwise approximation of the rules on the Need International Protection’ 14109/01 recognition of refugees and the content of ASILE 54 (16 Nov. 2001).

THE RESEARCHER PAGE 5

A Positive Obligation to Protect subsidiary protection contained in the EC been committed in Finland. The court by Maria Maguire, Solicitor Regulation that serious harm is defined as concluded “sufficient evidence has been Refugee Legal Service including ‘torture or inhuman or degrading adduced to establish substantial grounds treatment or punishment’. for believing that the applicant would be Subsidiary Protection, introduced into Irish exposed to a real risk of treatment contrary law on 10th October 2006, derives from International - Human Rights Law to Article 3, if expelled to the DRC at this international human rights norms and is a The cornerstone of Subsidiary Protection moment in time. Accordingly, the form of complementary protection in lies within human rights law: i.e. the right enforcement of the order issued to that recognition of the limiting nature of the of human beings not to be tortured. The effect would violate that provision for as 1951 Refugee Convention offering primary universal instrument applicable is long as the risk persists.” 1 the United Nations Convention Against protection to those at risk of serious harm. 5 This addition to refugee protection has had Torture (CAT). Article 3, sets out a clear The applicant N, born in 1972 was a differing names in various jurisdictions and absolute prohibition on returning a Christian and member of the Ngbandi such as, humanitarian leave and person to a country where he is at risk of tribe. He worked as an informant for complementary protection but the meaning being tortured. A person must show he is President Mobutu’s DSP (Division remains the same. Distinct from the 1951 at personal risk of being subjected to Speciale Presidentielle) and FAZ (Forces Refugee Convention, which provides relief torture and the standard of proof as set out Armees Zairoises). N was close to for those at risk of persecution for reasons in Article 1 is that of being higher than a Mobutu’s son, Kongulu, whom he knew of race, religion, nationality, political mere suspicion but lower than highly from the age of three years, staying for probable.6 Article 7 of the International some time in the same compound as opinion or membership of a particular 7 social group, subsidiary protection is Covenant on Civil and Political Rights Kongulu and Mobutu family members ‘human rights protection’, the primary (ICCPR), prohibits absolutely the removal (Kongulu died in 1999). N had not source in Europe being the 1950 European of an individual to a place where he is at disclosed initially in his asylum claim in real risk of torture or to ‘inhuman or Finland that he had made a previous Convention on Human Rights and 8 Fundamental Freedoms. In Ireland we degrading treatment or punishment’. asylum claim in the Netherlands between have codified this form of protection by Finally, the prohibition on return to torture, 1993 and 1995 where he stated that his the implementation of the EC (Eligibility cruel or inhuman or degrading treatment or father was the member of the DSP creating punishment is considered part of the protection need. N was deported back for Protection) Regulation 2006. 9 customary international law. to the DRC having failed in his application Subsidiary protection does not ‘supersede’ for a declaration as a refugee in the refugee law but is designed to complement Regional European - Human Rights Netherlands. it. Unlike refugee law, there is no need for Law The European Convention on Human N explained to the Finnish authorities that a nexus to one of the five Convention 10 grounds cited above, nor is there a need to Rights, (and resulting case law thereof), he was sent to the Netherlands by the DSP prove ‘persecution’. The protection should be the primary human rights to spy on Congolese dissidents and report afforded is wider and practitioners, instrument preferred by advocates, as it back for reprisals to be taken on their decision makers and judges will need provides the most wide ranging and family members in DRC. N disclosed that access to accurate and reliable country of inclusive definition of torture and inhuman he spoke four languages Lingala, Kikongo, origin information (COI) and the case law and degrading treatment and punishment, Swahili and French. Having left in a hurry, of the ECHR and CAT to determine such as discussed in immigration and non- he arrived in Finland with no documents immigration cases before the court (e.g. and was therefore unable to prove his applications. 11 HIV and death row phenomenon). nationality or identity other than by his While the protection against torture outside own statements. Furthermore in the asylum of the 1951 Refugee Convention CAT is an international instrument claims in Netherlands and Finland N used guarantees that a person at risk of torture incorporated into Irish domestic law by different names and in total four different in his country cannot be deported to that virtue of the Criminal Justice Act 2006 but names were known to the Finnish limits torture breaches to those perpetrated country, subsidiary protection provides a 12 authorities by the time they came to positive obligation to grant a residence by state actors. determine his claim. permit if the applicant is not excludable It is the ECtHR case law we look to as within the terms of the 2006 EC The Directorate of Immigration in Finland well as CAT to understand the meaning of Regulation.2 found his claim to asylum not to be ‘substantial grounds’ which is also the credible, that he had failed to prove his I would like to discuss, by way of standard of proof applicable. The case law identity and that there was no real risk on illustration the key components in an shows us that a foreseeable future risk has return for him by merely belonging to the application for subsidiary protection, by to be established but it does not need to be same tribe as Mobutu or having worked as considering the case in the ECtHR of N v highly probable or highly likely to occur a lower ranking official in the Finland, which found Finland to be in and it is not necessary for all the facts to be administration and preferred COI which breach of Article 3 ECHR,3 in seeking to proven. There are a number of lead cases indicated only higher ranking officials to assist us in understanding Subsidiary expel a former soldier of Mobutu to the 13 were at risk on return. Further, they relied DRC.4 The primary factors to be Protection. on the fact that the situation in DRC had elucidated are familiar territory: (1) the generally improved by 2001. Irish legal practitioners will need to have applicant’s overall credibility, (2) proof of ECHR case law to hand for subsidiary origin and identity, and crucially (3) the Due to the requirements of Finnish protection submissions. domestic law, as N’s identity and importance of detailed COI. I chose this background had not been convincingly case as it concerns expulsion and a N v Finland established, it could not be assessed protection need outside of the ambit of the In N v Finland, the ECtHR found that the whether the reason for N’s departure from 1951 Refugee Convention and the denial applicant’s impending expulsion by the DRC had been for reasons of persecution of a residence permit to the applicant in Finnish authorities to the DRC violated and therefore he could not be granted Finland. The wording of Article 3 ECHR Article 3, this finding was not invalidated asylum but as he remained in need of mirrors that of subsidiary protection by the nature of the applicant’s work in the protection he could have been granted a namely: ‘substantial grounds for believing DRC (the applicant being an informer in residence permit. that’; ‘real risk of treatment contrary to the regime of President Mobutu) or by the

Article 3’. We know from the definition of fact that minor offences (shoplifting) had

PAGE 6 THE RESEARCHER

Throughout the various appeals in the President, he would run a substantial risk Preamble and Articles 1 and 2 of the Finnish Courts, N was not found to be of treatment contrary to Article 3 if Charter of the United Nations; or credible and the country of origin returned. The court added that the risk d Constitutes a danger to the information preferred was that the situation might not necessarily emanate from community or to the security of the in DRC was delicate but that there was no current authorities but from relatives of State. reason to believe any risk of serious human dissidents who may seek revenge. The rights violations. N was not granted a Court suggested that the authorities would (2) Paragraph (1) applies also to persons who instigate or otherwise residence permit. not necessarily be willing or able to protect participate in the commission of the him against threats. crimes or acts mentioned therein. In the ECtHR N gave oral evidence. He provided reasons for the discrepancies Conclusion (3) A person may be excluded including his use of four different names. Cases such as N ably demonstrate the from being eligible for subsidiary He further produced a witness, KK who importance of examining current and protection if he or she has, prior to his was also in the DSP in DRC and knew evolving case law of the ECHR, or her admission to the State, committed one or more crimes, outside him. The Court found KK to be a credible particularly in relation to Article 3 the scope of paragraph (1), which witness and supportive of the applicant’s concerning the right not to be tortured or would be punishable by imprisonment own account, while noting that no subject to inhuman or degrading treatment had they been committed in the State, testimony of KK was available to the or punishment. Advocates will appreciate and left his or her country of origin Finnish authorities. The Immigration that the right not to be returned is distinct solely in order to avoid sanctions resulting from these crimes. Directorate gave evidence and submitted from the right to be granted a residence that N had serious credibility failings, i.e. permit and therefore submissions will need 3 Article 3 ECHR “No one shall be subject to that he was not from the Ngbandi tribe, (as to address all relevant aspects of an torture or to inhuman or degrading they spoke Ngbandi) and the fact that N applicant’s claim including any credibility treatment or punishment.” spoke Kikongo, which made him more failings. 4 N v Finland (2005) 43 EHRR 12; Application No. 38885/02 July 20, 2005 likely to be from Bas-Zaire, another part of 5 1984 UN Convention Against Torture and DRC. The Directorate concluded there Finally, I submit subsidiary protection, to Other Cruel, Inhuman or Degrading would be no risk of serious human rights be meaningful, must be considered in the Treatment or Punishment (CAT) ‘1. No violations on his return to DRC and the context of an appeals regime which State Party shall expel, return (“refouler”) only problems he would be likely to face suspends deportation, including any final or extradite a person to another State where there are substantial grounds for believing would be economic. Documentary appeal of a deportation order in the higher that he would be in danger of being evidence was examined and considered by courts. Corresponding human rights subjected to torture.’ the Court including UNHCR guidelines of obligations such as the accessory human 6 Gorlick, B, The Convention and the 1998, 2002 position paper and a 2002 right to an effective remedy as laid down Committee Against Torture: A country report and the 8th European in Article 13 of the ECHR must continue Complementary Protection Regime for Refugees, 11 IJRL 479, p481 Country of Origin Information Seminar in to be provided for in law. The right to an 7 1969 International Covenant on Civil and June 2002. appeal, which suspends deportation as long Political Rights as the legal remedy has not yet been 8 General Comment Nos. 31 (2004) and 20 The court, in finding in favour of N said finalised, should continue to be provided in (1992) of the UN Human Rights Committee, his testimony was evasive on many points Irish law to make subsidiary protection as the committee responsible for overseeing and that they were not prepared to accept 14 compliance with the ICCPR. relief a reality. 9 General Comment 1997 on Article 3, UN all of his statements including his account Committee Against Torture, 1987. of travel to Finland. However, in light of 1 S.I No. 518 of 2006 European Communities 10 1951 European Convention on Human the overall evidence before the Court, it (Eligibility for Protection) Regulations 2006 Rights and Fundamental Freedoms as found that on the whole he was sufficiently 2(1) “person eligible for subsidiary incorporated into Irish law by the European consistent and credible. protection” means a person - …(c) in Convention on Human Rights Act 2003 respect of whom substantial grounds have 11 D v UK 1997; Soering v UK 1989 been shown for believing that the person 12 See Chan, P The Protection of Refugees and The court accepted that the applicant fled concerned, if returned to his or her country IDPs: Non-Refoulement under Customary DRC in 1997 when the forces of Laurent of origin, would face a real risk of suffering International Law? IJHR Vol 10 No.3 Sept Kabila were overthrowing the Mobutu serious harm as defined in these 2006 regime. Also, they found it credible that regulations….”serious harm” consists of – 13 Chahal v UK (1997) 23 EHRR 413; HLR v (a) death penalty or execution, (b) torture or France (1998) 26 EHRR 2; Hilal v UK although he was not of a senior military inhuman or degrading treatment or (2001) 33 EHRR 2 and Application No. 32 rank, he could be considered to have punishment of an applicant in the country of 448/96 Hatami v Sweden, April 23 1998. formed part of President Mobutu and the origin, or (c) serious and individual threat 14 See Vedsted-Hansen, J Common EU DSP Commanders’ inner circle. They to a civilian’s life or person by reason of Standards on Asylum – Optional found sufficiently credible, that as an indiscriminate violence in situations of Harmonisation and Exclusive Procedures? international or internal armed conflict. European Journal of Migration and Law Vol official in the DSP he took part in various 2 See S.I. above - Exclusion from subsidiary 7, No.4 2005 p369-376 and Conka v events during which dissidents seen as a protection Belgium ECtHR judgement of 5 Feb 2002 threat to President Mobutu were singled para 75-83 and the Council of Europe out for harassment, detention and possible 13. (1) A person is excluded from being Committee of Ministers Recommendation execution. The Court noted that the eligible for subsidiary protection where No R (98) 13 on the Right of Rejected there are serious reasons for considering Asylum Seekers to an Effective Remedy. Finnish authorities, while finding his that he or she— account, not to be credible did not exclude the possibility that he might have worked a has committed a crime for the DSP. against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to The Court relied on COI evidence from the make provision in respect of such UNHCR that there was a risk to former crimes; FAZ members and that factors other than b has committed a serious rank, such as ethnicity or connections to influential persons, may be of importance crime; if returned. The Court found that as an c has been guilty of acts informant and infiltrator reporting directly contrary to the purposes and principles to senior ranking officers close to the of the United Nations as set out in the

THE RESEARCHER PAGE 7

Summary of UNHCR Training residence in order to seek refuge in another of refugees and the content of refugee on Subsidiary Protection place outside his country of origin or status. The Tampere conclusions also nationality.” provide that rules regarding refugee status

should be complemented by measures on

The Cartagena Declaration, in addition to subsidiary forms of protection, offering an

the 1951 definition includes among appropriate status to any person in need of

refugees “persons who have fled their such protection.” The Qualification Emilie Wiinblad Mathez country because their lives, safety or Directive gives effect to these twin aims: UNHCR freedom have been threatened by (i) harmonisation of rules on the

generalized violence, foreign aggression, recognition of refugees and (ii) the

internal conflicts, massive violation of introduction of subsidiary protection. Introduction human rights or other circumstances which Emilie Wiinblad Mathez of UNHCR gave have seriously disturbed public order”. Transposition of the Qualification a presentation on subsidiary protection to Directive Refugee Legal Services on 31 October In Europe, the refugee definition is limited Under Article 38 of the Qualification 2006 in the Gresham Hotel in Dublin. The to the 1951 convention definition and there Directive the final transposition date was training was part of the preparing of has been no agreed definition of other 10th October 2006. Article 249 of the EC agencies for the use of Statutory forms of complementary protection. Treaty states “A Directive shall be binding Instrument 518 of 2006, which came into Complementary protection has therefore as to the result to be achieved, upon each force on 10 October. The full title of the denoted a variety of grounds for non- member state to which it is addressed, but S.I. is the European Communities return. This lack of common definition of shall leave to the national authorities the (Eligibility for Protection) Regulations Complementary Protection is one of the choice of form and methods." Ireland’s 2006. This S.I. is a transposition of issues addressed by the EU Qualification approach was to publish the Scheme for an Council Directive 2004/83/EC, which is Directive, Council Directive 2004/83/EC. “Immigration, Residence and Protection also known as the Qualification Directive. In Ireland the Immigration Act, 1999 Bill” in September 2006, intending to UNHCR has published Annotated includes the leave to remain consideration enact this in 2007. In the meantime interim Comments on Council Directive including non-refoulement and Statutory Instrument No. 518 of 2006 2004/83/EC, which are relevant in humanitarian grounds. transposed the Directive into Irish considering the Regulations. These legislation in time for the deadline and it Annotated Comments can be found on Definition of a person eligible for came into force on 10 October. UNHCR’s website at subsidiary protection in the http://www.unhcr.org/home/RSDLEGAL/ Qualification Directive Some key points in the Scheme for an 4200d8354.pdf “A ‘person eligible for subsidiary Immigration, Residence and Protection protection’ means a third country national Bill The training given by Emilie did not or a stateless person who does not qualify It introduces subsidiary protection. It necessarily reflect the views of UNHCR. as a refugee but in respect of whom proposes a single procedure for assessing The intention was to give some clarity to substantial grounds have been shown for refugee status, subsidiary protection status the context of the Regulations and to believing that the person concerned, if and leave to remain. The Office of the outline some of the principles involved. returned to his or her country of origin, or Refugee Applications Commissioner is to This is new law so the actual definitions in the case of a stateless person, to his or be assimilated into the Irish Naturalisation will become clear once in use. Paul Daly her country of former habitual residence, and Immigration Service. The Bill has put together this summary of Emilie’s would face a real risk of suffering serious integrates immigration and refugee issues. presentation. harm as defined in Article 15,and to whom Article 17(1) and (2) [exclusion Actors of persecution or serious harm What is complementary protection? conditions] do not apply, and is unable, or, (Regulation 2) It is protection for persons with protection owing to such risk, unwilling to avail Note that non-state actors can be agents of needs other than those defined in the 1951 himself or herself of the protection of that persecution. Refugee Convention. Different regions country. Note also that international organisations define “refugees” differently: some include are listed as potential providers of broader protection concerns. UNHCR’s Background to the Qualification protection. mandate has been extended by General Directive Assembly Resolutions to include The Qualification Directive is one of the Application for protection (Regulation Complementary Protection. Under Directives adopted to ensure common 2) UNHCR’s mandate a refugee is any person asylum standards throughout the EU. It In the Regulations an application for who is outside his or her country of origin was adopted on 29 April 2004. protection comprises those applying for or habitual residence and is unable or refugee status or for subsidiary protection. unwilling to return there owing to: It is a set of minimum standards. It covers aspects of how to assess a refugee claim. Persons eligible for subsidiary 1. A well founded fear of persecution for It introduces a common legal framework protection (Regulation 2) one of the reasons set out in the 1951 for dealing with subsidiary protection. Note that persons from an EU Member convention – or It sets out standards for granting of status. State cannot qualify for subsidiary 2. Serious and indiscriminate threats to It sets out standards for the content of protection. life, physical integrity or freedom resulting international protection. Note that the definition indicates that the from generalised violence or events refugee question must be exhausted. seriously disturbing public order. Development of the EU Common Asylum System Protection against persecution or The OAU Convention includes within its In 1999 the European Council at Tampere serious harm (Regulation 2) scope, in addition to the 1951 Convention had agreed to work towards establishing a The definition in Regulation 2 sets out definition, “every person who, owing to Common European Asylum System. In the qualifications for when a state has external aggression, occupation, foreign words of the Qualification Directive: “The provided protection. Note that non-state domination or events seriously disturbing Tampere conclusions provide that a entities have been included as potential public order in either part or the whole of Common European Asylum System should protection providers. The Regulation may his country of origin or nationality, is include, in the short term, the be complemented by non-refoulement compelled to leave his place of habitual approximation of rules on the recognition which is absolute.

PAGE 8 THE RESEARCHER

Definition of serious harm (Regulation with the specific situation of vulnerable threat to a civilian’s life or person by 2) persons. Regulation 16 defines family reason of indiscriminate violence due to According to Regulation 2 of the reunification for persons with subsidiary violence in international or internal or Regulations and Article 15 of the Directive protection status. Regulation 17 states that armed conflict the person may be eligible “serious harm” consists of— permission to remain in the state is for for subsidiary protection. This reflects the (a) death penalty or execution, three years, which is renewable, subject to practice of EU Members of providing (b) torture or inhuman or degrading certain conditions. Regulation 18 regulates protection from return to individuals treatment or punishment of an applicant in travel documents. Regulation 19 outlines fleeing armed conflict. the country of origin, or the rights for persons with subsidiary (c) serious and individual threat to a protection and their family granted Serious and individual threat civilian’s life or person by reason of permission to be in the state. Individual threat is different from “being indiscriminate violence in situations of targeted” – that would be persecution. It international or internal armed conflict. Death penalty or execution must be a “reality” for that individual. Where substantial grounds have been There could be geographical Application conditions (Regulations 3 shown that if returned the person will face considerations involved. The person could and 4) a real risk of meeting a death penalty or be from a place - where such threats are The Regulations apply to: execution, the person may be eligible for real. It has yet to be interpreted in EU case ORAC decisions/notification made on or subsidiary protection. The relevant human law. after 10th October 2006 rights law is European Convention on RAT decisions/notification made on or Human Rights Protocol 6 and the Addendum after 10th October 2006 International Covenant on Civil and Examples of Jurisprudence Notification of deportation of a failed Political Rights, Optional Protocol 2. Emilie quoted the following research by asylum seeker – 15 day letter given on or Marisa Gomez regarding jurisprudence for after 15th October 2006. Facts and figures on death penalty torture, inhuman treatment/punishment and Amnesty International on this topic: degrading treatment /punishment: The subsidiary protection process only 60 countries have the death penalty Meaning of torture: “to attach a special applies to “failed” asylum seekers. Late 5,186 persons were sentenced to death in stigma to deliberate inhuman treatment submissions may not be considered. 53 countries in 2005 causing very serious and cruel suffering” Submission in the wrong format may also 2,148 persons were executed in 22 (Ireland v UK- ECtHR). not be considered. In applying for countries in 2005 Meaning of inhuman subsidiary protection it is important to 94% of the 2,148 were in China, Iran, treatment/punishment: Ill-treatment must review the format to make sure that all Saudi Arabia and the USA attain a minimum level of severity. relevant documents have been submitted Methods used; Meaning of degrading and to clarify any unclear issues. • Beheading (in Saudi Arabia, treatment/punishment: “humiliation or Regulation 4 clarifies that it will be a two Iraq) debasement attaining a minimum level of step process: first, subsidiary protection, • Electrocution (in USA) severity. That level has to be assessed with then, other leave to remain issues will be • Hanging (in Egypt, Iran, Japan, regard to the circumstances of the case” considered including non- Jordan, Pakistan, Singapore and other (Campbell & Cosans v UK- ECtHR). refoulement. countries) The “contemptuous” burning of Kurdish • Lethal injection (in China, villagers houses without taking any safety Assessment of facts and circumstances Guatemala, Philippines, Thailand, USA) precautions or offering financial and other (Regulation 5) • Shooting (in Belarus, China, assistance to them (see Selcuk & Asker v Regulation 5 of the Regulations and Somalia, Taiwan, Uzbekistan, Viet Nam Turkey; Akdivar v Turkey- ECtHR). Article 4 of the Directive deal with and other countries) Removal from the UK of man suffering assessment of facts and circumstances. • Stoning (in Afghanistan, Iran) from AIDS where the removal would The assessment of facts and circumstances subject him to “acute mental and physical is forward looking. However, Torture, inhumane, degrading suffering” (see D v UK- ECtHR). Note exceptionally it can be based on past treatment or punishment that the Court stressed the exceptional experience alone. Where substantial grounds have been circumstances and the fact that the shown that if returned the person will face applicant was at the terminal stage of the Regulations 6 to 8 a real risk of facing torture, inhumane, disease. Regulation 6 deals with protection needs degrading treatment or punishment the arising sur place. Regulation 7 deals with person may be eligible for subsidiary Rape can constitute a violation of Article 3 internal protection. Regulation 8 deals with protection. The relevant law is the of the ECHR. (see Aydin vs Turkey – control of a state or a substantial part of its Criminal Justice Act, 2006, the European ECtHR territory by an international organisation. Convention on Human Rights Act 2003 and International Human Rights Law, to Conditions in detention may themselves Qualification for being a refugee which Ireland is signatory. constitute treatment in violation of Article. (Regulations 9 to 12) 3 of the Convention (see Tekin v Turkey - In addition to dealing with subsidiary What is torture? ECtHR). protection the Regulations also deal with Understanding of torture depends on the refugee status. Thus Regulations 9 to 12 of definition used. There are the European The so-called “5 techniques”: subjection to the Regulations and Articles 9 to 13 of the Court of Human Rights case law sleep deprivation, continual noise, Directive have to do with qualification for interpretation, the Convention against deprivation of food and drink, covering of being a refugee. Regulation 9 contains Torture definition and the Criminal Justice the head and “wall standing” (forcing some of the forms acts of persecution can Act of 2006. detainees to lean against the wall for hours take. in a spread-eagle position with the weight Serious and individual threat to a of their body on their fingers) (see Ireland Regulations 13 to 19 civilian’s life or person by reason of v UK - ECtHR). Regulation 13 deals with exclusion from indiscriminate violence subsidiary protection. Regulation 14 deals Where substantial grounds have been with revocation of or refusal to renew shown that if returned the person will face subsidiary protection. Regulation 15 deals a real risk of facing serious and individual

THE RESEARCHER PAGE 9

Between refugee Following Hannah Arendt (1975), who rhetoric of ‘human rights’, refugees, said that the Rights of Man was always considered temporary in the and citizen: compromised from the start due to its expectation that most – and this includes necessary realisation as the rights of the invited ‘programme refugees’ – will Some socio-political citizen, Costas Douzinas (2000) argues that eventually return to ‘where they came reflections on human rights were always compromised from’, epitomise what Agamben theorises Ireland’s refugee by being secondary to the rights of national as ‘bare life’. law and practice 1 sovereignty (Hirsch, 2003: 152). Therefore, the second argument of this Homo sacer and racial states paper is that state claims of Starting from Foucault’s (1978) Ronit Lentin MPhil in Ethnic and Racial humanitarianism as well as human rights- theorisation of the modern nation-state as a Studies Department of Sociology, TCD based NGO and popular responses to the ‘state of population’, using a series of Email: [email protected] injustices of the asylum system fail to technologies to monitor and control the Introduction historicise the Eurocentric origins of the nation’s biological life which becomes a The deportations in March 2005 of 35 human rights discourse. Alana Lentin problem of sovereign power, Agamben people the state described as ‘failed (2005) argues that human rights are always (1995) shifts the theorisation of social life asylum seekers’ and the popular bestowed by those whose rights are from the friend- versus-enemy categorical mobilisation on behalf of the deportees assured upon helpless others, and that the pair of western politics, to the ‘bare life’- which ended in the return of one ‘aged out’ professionalisation of human rights versus-political sovereignty binary. In the young Nigerian, have occasioned new activism over the last two decades modern age of nation states, beyond public debates on asylum and deportations. disconnects it from the lived experiences Foucault’s life (bios) becoming the Assuming a name, a history, and a specific of those on whose behalf it seeks to act, principal object of the calculations of state ‘story’, reported in the Irish media in thereby dehumanising them. power (biopower), Agamben posits ‘bare sympathetic and emotional terms, these life’ (zoe) as coinciding with the political deportees were no longer just faceless ‘We refugees’ realm, signifying the state of exception. In The Origins of Totalitarianism (1975), items of ‘human waste’ (Bauman, 2004). Hannah Arendt argues that although the Bare life, which Agamben borrows from However, far from being a humanitarian Declaration on the Rights of Man Roman law to name homo sacer, is the response to popular protest, returning the supposedly bestowed ‘inalienable’ rights, opposite of sovereign power, standing at young man was more about the Irish ‘us’ ‘irreducible to and undeducible from other the point of indistinction between violence and about the integrity of ‘our’ rights or laws’, they proved to be and the law (Agamben, 1995: 10). For immigration, asylum and deportation unenforceable – even in countries whose Agamben, homo sacer is the ideal-type of systems, than about the Nigerian ‘other’. constitutions were based upon them – the excluded being, whose life is devoid of The state seemed more concerned about whenever people appeared who were no value. Therefore killing a homo sacer is the deportee’s class mates not being able to longer citizens of any sovereign state not a punishable offence, but neither can study for their Leaving Certificate than (Arendt, 2000: 34). The Italian political the life of a homo sacer be used in about the young man, deported to Lagos philosopher Giorgio Agamben (2004) religious sacrifice. Zygmunt Bauman without family, friends or means of argues that laws depriving people of (2004) uses this theorisation to think of support. citizenship (as in the Nazi 1935 modernity constructing some categories of Nuremberg Laws), which create masses of people as human waste, and argues that The state’s insistent protests demonstrate refugees, mark a ‘turning point in the life throughout modernity, the nation-state ‘has once again the demonisation of those who of the modern nation-state and its claimed the right to preside over the seek refugee status as ‘bogus refugees’, definitive emancipation from the naïve distinction between order and chaos, law ‘economic migrants’, ‘illegal immigrants’, notions of “people” and “citizen”’. Simply and lawlessness, citizen and homo sacer, or simply ‘failed asylum seekers’, linked to put, human rights, bestowed by numerous belonging and exclusion, useful criminality and breaches of state security. international conventions ever since the (=legitimate) product and waste’ (Bauman, Asylum seekers were presented as costing 18th century Declaration, do not apply to 2004a: 33). the state too much and as competing with those outside the citizenship pale. disadvantaged populations for scarce Agamben’s concept of bare life is useful in resources. Crucially, the need to control Human rights and treaties, including the thinking about refugees and statelessness them is presented as essential to the 1951 Convention in relation to Refugees, in the current age of global population ‘common good’ and ‘the integrity of the are reciprocal agreements between movements. David Theo Goldberg (2002) asylum process’. sovereign states, even though states are the posits modern nation-states as ‘racial prime perpetrators in depriving individuals states’, which exclude in order to construct This paper examines some theoretical of their ‘human rights’. This means, homogeneity – which he sees as implications of the ‘racial state’ (Goldberg, Arendt says, that crimes against human ‘heterogeneity in denial’ – while 2002) enacting refugee law and practice, to rights, appropriating difference through first argue, after Hannah Arendt, Zygmunt celebrations of the multicultural. The racial Bauman and Giorgio Agamben, that the can always be justified by the state is a state of power, asserting its refugee is s/he who has lost all rights and pretext that right is equivalent to control over those within the state and therefore ‘is the sole category in which it is being good or useful for the whole excluding others from outside the state. possible today to perceive the forms and in distinction to its parts. (Hitler’s Through constitutions, border controls, the limits of a political community to come’ motto that ‘Right is what is good for law, policy making, bureaucracy and (Agamben, 2004). Refugees, according to the German people’ is only the governmental technologies such as census Bauman, are human waste, with no useful vulgarised form of a conception of categorisations, invented histories and function to play in the land of their arrival law which can be found everywhere) traditions, ceremonies and cultural and temporary stay and no intention or (Arendt, 2000: 40). imaginings, modern states, each in its own realistic prospect of being assimilated and way, are defined by their power to exclude incorporated into the new social body; Since refugees are seldom considered (and include) in racially ordered terms, to from their new present place, the dumping ‘good’ or ‘useful’ by the state, on the categorise hierarchically, and to set aside. site, there is no return and no road forward contrary they present ‘problems’ for In the modern state, race and nation are (Bauman, 2004: 77). sovereignty and state boundary, it is defined in terms of each other to produce a unsurprising that despite the universal coherent picture of the population in the

PAGE 10 THE RESEARCHER face of a divisive heterogeneity, which that deportation is a legitimate part of the efforts at their integration’ (O’Mahony, may be defined as standing outside the ‘asylum process’. 2003: 135). state, or as the containment of the ‘other’ within. Dispersal and direct provision Detention Dispersal means that asylum seekers have Liza Schuster argues that the detention of I propose to theorise Ireland, like other no say in where they live, making the asylum seekers, whose only ‘crime’ is a modern nation-states, as a ‘racial state’, formation of networks of family and wish to settle in a country other than their whose main aim is to exert control over its friends near impossible. In Britain, the own, is widespread across Europe, even territory-nation nexus, even in the era of rationale behind dispersal is sharing the though conditions vary a great deal. globalisation, when, national boundaries burden imposed by asylum seekers Detention means depriving people of their arguably become secondary in a global, or (Schuster, 2003: 248). In Ireland, at the liberty for an unspecified period, without European ‘migration regime’. This end of March 2005, there were 7,280 trial, without rights to automatic bail or to explains the state’s impetus to control asylum seekers in 68 direct provision legal representation, without being asylum seekers and migrants, rarely centres (4 reception and 64 informed of their rights or of what is linking between conflict zones which accommodation centres) of whom 1,678 happening in a language they understand produce asylum seekers and their human asylum seekers (21%) had been residing in (Schuster, 2003: 249). While Ireland, consequences. Instead, the racial state direct provision for over 2 years. A contrary to several EU states, does not confines its concern to the need to quarter (2,094) of those living in direct have a policy of systematically detaining demonise asylum seekers, stem their flow, provision centres are under the age of 4. asylum seekers, the 1996 Refugee Act as preventing them from landing to present Asylum seekers with children, who arrived amended does provide for the detention of asylum applications (as has been seen in in the country after May 1st 2004, do not asylum seekers in certain circumstances Britain and Ireland, where the state boasts receive child benefit. In addition to basic (Fraser, 2003: 95).4 the success of its asylum policies by the accommodation and meals, each asylum declining numbers of asylum applications, seeker receives €19.10 per adult and €9.60 Deportations as asylum figures for Ireland demonstrate,2 per child per week, not raised since the In The Deportation Machine: Europe, omitting to mention the hardships heaped allowances were first introduced in 2000 Asylum and Human Rights (Feckete, upon potential applicants prior to (www.irishrefugeecouncil.ie/stats ). 2005), Liz Feckete, who documented 200 embarkation), all in order to regain control, case studies, argues that British political as I now demonstrate by citing some Not allowed to work or access education, parties compete in setting deportation examples of Irish refugee law and practice. asylum seekers, whose income is below 20 targets. This ‘target culture’ results in per cent of the national household average, brutal use of force in removals, often in Stemming the tide, regaining control are ‘the poorest of the poor’, their presence violation of domestic law via powers Colin Harvey (2003) links state marking ‘the nadir of the putative values of granted to immigration officers, in the sovereignty to the insistence by states on the Celtic Tiger; they are marginalized, removal of protection from refugees determining who is a refugee and who is poor, and, in many respects, they lack fleeing conflict, in the contravention of the entitled to enter their territory and become freedom’ (Loyal, 2003). In some dispersal UN Convention on the Rights of the Child a citizen. Although the 1951 Convention centres, asylum seekers are housed in rows when deportation officials entered schools relating to the Status of Refugees of mobile homes on a tarred surface. Food which become sites of deportations, and in combines this concern with the recognition is basic and insufficient, and while some overcrowded, poor and unsanitary of the humanitarian needs of displaced classes are provided, most residents have conditions in pre-deportation detention persons, it does not address the root causes nothing to do all day. According to Salome centres. The Institute of Race Relations has of refugee movements. Like all Mgubua, development support worker in published a National Declaration against international instruments, the 1951 the Athlone direct provision centre, this Deportations of School Students, stating Convention is a compromise (Harvey, resulted in asylum seekers feeling that ‘Deportation affects a child's 2003: 8). In line with critiques of segregated and dehumanised. While educational progress, health and well- international law as leaving too much to asylum seeker mothers often suffer from being…. We are also deeply concerned state discretion, Harvey concludes that depression and boredom, it is the men who about the detrimental effect on the wider refugee law, with its focus on the award of experience greater difficulties, having been school or college community when a status, leaves too much to the (racial) used to ‘being providers and working’ personal relationships are disrupted and state to decide. The purpose is always to (Holland, 2005: W4). friends are separated’ (www.irr.org.uk). ‘secure national level protection’ (Harvey, 2003: 17). Asylum seekers in Ireland are also In Ireland, before the enactment of the excluded from social welfare provisions in 1999 Immigration Act, the Minister of Liza Schuster posits the demonisation of relation to rent allowance.3 According to Justice’s power to deport non-nationals asylum seekers by states and media to the Free Legal Advice Centres (FLAC, was based on the 1935 Aliens Act and the conjure up cheat, liar, criminal, sponger – 2003), direct provision represents a 1946 Aliens Order, rendered ‘beyond the someone deserving hostility not by virtue departure from the normal Irish social scope’ only in 1999 with the enactment of of any misdemeanour, but simply because welfare code, creating what Agamben the Immigration Act, which, according to she is an ‘asylum seeker – a figure that has would call ‘a state of exception’, where the Irish Refugee Council, shifts the focus become a caricature just as ‘Blacks’, asylum seekers are positioned in a zone of from identifying persons in need of ‘Jews’ and ‘Gypsies’ have been and still indistinction between inside and outside. protection, ‘towards techniques devised to are. This is part of a racist asylum regime According to FLAC, direct provision screen out as many applications as (Schuster, 2003: 244). Wishing to exert contravenes the Equal Status Act, even possible’. 5 This has resulted in increasing control over their border, European racial though the Act does not permit a challenge numbers of deportations: from 146 in states – including Ireland – have developed to enactments by the government, further 2000, 278 in 2001, 521 in 2002, 1,528 in regimes and sets of practices – including reinforcing the racial state. Peter 2003 until 16 October, and 599 (out of dispersal, detention and deportation – once O’Mahony of the Irish Refugee Council 2,866 deportations orders) in 2004; in only possible at war time and today argues that the Irish state is enforcing and addition, 611 people were voluntarily considered ‘normal’ and ‘common sense’: enabling ‘policies of prevention and repatriated.6 In all, since 1999 a total of see the competition between British parties deterrence through the de facto exclusion 2,004 people were deported from Ireland, on limiting immigration, but also the of asylum seekers, while at the same time and 2,299 were ‘voluntarily repatriated’ by acceptance by many human rights NGOs presenting the illusion of making earnest July 2004 (www.irishrefugeecouncil.ie).

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The March 2005 deportations, in which want to argue that the very notion of 1 This is a version of a paper presented at the immigration officers entered schools and ‘human rights’ is no longer theoretically Irish Society of International Law’s Refugee allegedly behaved aggressively, upsetting adequate. Law in the Age of Globalisation conference, Institute of International Integration Studies, pupils and teachers, demonstrate the Irish Costas Douzinas (2000) follows Arendt in Trinity College Dublin 26 April 2005 state’s resolve to continue its policy of 2 Asylum applications in Ireland went up from targeted deportations (Lentin and McVeigh focusing on the plight of refugees who are 39 in 1992 to peak in 2002 at 11,634, 2006). denied even the right to have rights by significantly going down to 7,900 in 2003, virtue of their expulsion from their 4,766 in 2004, and 1,259 in 2005 to 31 Even though only a minority of those communities and the refusal of other March. Of 7,900 applications in 2003, 345 issued with deportation orders are actually communities to let them in. The human (4.2%) were granted refugee status, 5,841 (73.9%) were refused status on various deported, EU states monitor neither the rights discourse is above all limited by the grounds, and 1,123 (21.8%) were deemed dangers faced by deportees on arrival, nor differentiation made between refugees and withdrawn from the asylum process (ORAC the inhuman and degrading conditions citizens (sharpened by Ireland using a 2003 Annual Report, www.orac.ie). In under which people are deported, leading constitutional amendment to revoke birth 2006, following the abolition of the right to to several deaths in recent years (Schuster, right citizenship to further differentiate Irish citizenship to children born in Ireland to migrant parents, asylum numbers have 2003: 252). Schuster (2003: 253) argues between citizen and non-citizen). Douzinas fallen to 1997 levels. Schuster documents a that from the state’s point of view, the emphasises state sovereignty as the sharp decrease throughout the EU from reason for continuing deportations, despite ‘centrally important terrain for the battle 675,460 in 1992to 251,770 in 1997, with a the fact that they are expensive in both over rights in a globalised world’ (Hirsch, slower increase to 384,530 in 2001. Ireland, financial and human terms, is that they are 2003: 151). His critique of human rights with an annual average of 3,974, ranks 8th per 1,000 inhabitants (UNHCR, cited by both ineffectual and essential, confirming centres on exclusion being at the heart of a Schuster, 2003: 238). the lie that states can control their polity based on the rights of citizenship, 3 Section 13 of the Social Welfare boundaries and ‘remove from their and on human rights as covering up the Miscellaneous) Provisions Act, 2003, territory those without any right to ambitions of powerful states. He argues provides a statutory footing for the exclusion remain’, which is necessary to ‘assuage that human rights are at their strongest of asylum seekers from entitlement to rent public opinion, which would not view the when they are utopian and at their weakest supplement (O’Mahony, 2003: 134). state’s incapacity in this area with when they are tied to institutions or actions 4 McGee documents media reports of several cases of asylum seekers being detained prior equanimity’. However, the assumption that in the existing world. to deportation (2003: 189-90). the threat of deportation creates fear and 5 Irish Refugee Council, ‘Amendments to the may persuade some to return ‘voluntarily’ Alana Lentin (2005) further posits a strong Immigration Bill 2002’, (Dublin, press is only speculative. link between ‘historicist’ racism – based release IRC, 17 June 2003, emphasis added). on being able to civilise ‘racial inferiors’ 6 Immigration Division (ECRE Country Eithne Luibhéid (2004) contextualises the by exposing them to the ‘superior’ culture Report 2004, Ireland). arrival of asylum seekers to Ireland in of the dominant group – at the heart of global restructuring, global capital racial states’ integration policies, and accumulation, and global wars, and argues human rights which dehumanise those they that racial states need asylum seekers in seek to benefit because they are practiced The “IBC 05” Scheme and the order to ‘redraw racial and national on behalf of others and granted and Rights of Irish Citizen Children boundaries that have become destabilised violated by states in equal measures. When in the contemporary era’. Her critique of racial states seem committed to both anti- EU asylum policies leads Schuster to insist racism and human rights, and when human that all controls are unacceptable, despite rights become professionalised, she argues, costs to receiving countries, and that ‘migrants themselves have become protecting one’s identity is not a valid consistently absent from the discussions reason for denying people the opportunity that take place in these privileged to save or improve their lives (Schuster, transnational spaces, due precisely to the 2003: 255). fact that they are not free to travel across

borders once they reach Europe.’ It is worth noting, however, that many by John Stanley BL human rights NGOs, including the Irish Ultimately, according to Agamben, Introduction Refugee Council and Amnesty differentiating between refugee and citizen The Twenty-seventh Amendment of the International, accept deportations ‘as a harbours dangers not only for the refugee – Constitution of Ireland provided that reality’, and merely insist that deportations homo sacer, outside the law, forever children born on the island of Ireland to be carried out in conformity with Ireland’s positioned in the twilight zone of the ‘state parents who were both non-nationals human rights obligations (Irish Refugee of exception’ – but also for the citizen. If, would no longer have a constitutional right Council, 2004), which begs the question of as Agamben argues, the camp – to Irish citizenship. The amendment was whether states and human rights concentration camp as well as refugee effected by the Twenty-seventh organisations alike uphold the state’s right camp – is the paradigm for modernity, a Amendment of the Constitution Act, 2004, to control and maintain its sovereignty and state we are all still living in, then the which was approved by referendum on 11th boundaries. apparently marginal figure of the refugee, June 2004 and signed into law on the 24th in unhinging the old trinity of state-nation- June. It partially reversed changes that had Conclusion: Human rights and its territory, deserves to be considered the previously been made to the Constitution others central figure of our political history, as part of the Belfast Agreement of 1998. Harvey (2003) argues that international calling into question the very principles of law (including several conventions and The Irish Nationality and Citizenship Act the nation-state: th human rights instruments) provides 2004 gave legislative effect to the 27 minimum standards in relation to refugees, It is only in a land where the spaces of amendment, and this Act was commenced st but admits that much is left to national states will have been perforated and on 1 January 2005. Since that date it is no legal systems to decide. Therefore, topologically deformed, and the longer possible for people to bestow Irish deconstructing the accepted wisdom that citizen will have learned to citizenship on children by arranging for the inhuman treatment of asylum seekers acknowledge the refugee that he their birth in Ireland. by Western racial states is about the himself is, that man’s political th infringement of their ‘human rights’ (i.e. survival today is imaginable On 14 December 2004 the Minister Fraser and Harvey, 2003; Feckete, 2005), I (Agamben, 2004). announced revised arrangements for

PAGE 12 THE RESEARCHER processing claims from non-national remain in the State under the revised he was constrained by obligations flowing parents of Irish children for permission to arrangement, and stated that his from the Constitution, including rights remain in Ireland. A notice setting out application had been refused. guaranteed under Article 40, but did details of the scheme was published on dispute the extent of this constraint. The 15th January 2005. This notice invited Issues Before the Court Respondent did not dispute that he was applications for permission to remain in The applicants claimed that the taking of a bound to act in accordance with the the State from non-national parents of Irish decision to refuse a parent residency for principles of constitutional justice and fair born children before the end of March failure to meet a requirement of continuous procedures. 2005. The revised arrangements became residency without considering the rights, known as the “IBC 05” scheme. including welfare rights, of the citizen The High Court Decision child was in breach of the citizen child’s On 14th November 2006 the High Court rights under articles 40.3 and 41 of the Terms of the Scheme handed down judgment in Bode & Ors. v Constitution. The applicants asserted the The Court stated that the Respondent, by th the Minister for Justice, Equality and Law right of the citizen child to live in Ireland the announcement of 14 December 2004, Reform.1 In the application before the pursuant to article 40.3.1. This argument committed himself to consider and Court non-Irish parents of a child born in was based on the judgment of the Supreme determine applications pursuant to the Ireland prior to 1st December 2005 had Court in AO and DL.2 The applicants scheme. The Court further stated that there applied to the Minister for permission to asserted the child’s right to be reared and was nothing in any of the documents remain in Ireland pursuant to the IBC 05 educated with due regard to welfare under outlining the terms of the scheme that scheme. It was common case that the article 40.3.1. This argument was based on precluded from making an application child’s father was not continually resident the judgment of the Supreme Court in G v anyone who was not continuously resident in Ireland from the date of birth of his An Bord Uchtála3 and DG v EHB.4 The in the State from the date of birth of a child, and that the child’s father was in applicants also asserted that as the parent citizen child. The Court stated that insofar Ireland on the date he submitted his applicants were married to each other their as the Minister relied on the application application. While the citizen child’s daughter had rights that a child derives form, the details sought at section 3(e) did mother was granted permission to remain, from being a member of a family within not imply automatic exclusion from her father was refused. The applicants the meaning of Article 41. The applicants consideration if a person had left the State sought to quash the decision to refuse the also claimed that the taking of a decision since the date of birth of their child. The applicant father permission to remain. The to refuse residency for failure to meet a Court acknowledged that the length of Court’s decision quashing the Minister’s requirement of continuous residency absence and reason for absence might be decision clarifies some key issues without considering the rights of the child relevant. regarding the rights of Irish citizen to respect for her private and family life Susceptibility of the decision to judicial children. This article summarises the was in breach of the State’s obligations review decision and discusses some of these under article 8 of the European Convention The Court stated that what is and remains issues. on Human Rights, and consequently in policy is a matter exclusively for the breach of section 3 of the European Executive or Oireachtas and is not subject The Terms of the Scheme Convention on Human Rights Act 2003. The High Court noted that no one to judicial review, but that where the document sets out the terms of the revised The Respondent argued, inter alia, that the Oireachtas transforms policy into arrangements, but that the four relevant IBC05 scheme was introduced in the legislation or where the Executive takes a documents were (a) the announcement by exercise of the inherent power of the decision that impacts on an individual, the Minister on 14th December 2004, (b) Executive to formulate and execute then if it is alleged that such legislation or the notice setting out the scheme published immigration policy, that the determination decision is contrary to constitutional or on 15th January 2005, (c) the application of the scheme’s criteria was a matter of legally protected rights, then it is a matter form, and (d) a letter issued to the parent policy and not subject to judicial review, susceptible to judicial review by the applicant. and in the alternative, that the Respondent Superior Courts. was not obliged to consider the rights of Constitutional Rights The announcement stated that the Minister the child because the refusal did not alter The Court stated that the citizen child is intended to grant residence only to those the status of the refused parent, did not central to the scheme. The Court people who could show that they had been involve the breaking up of the family, and concluded that the Minister was bound to resident in Ireland taking care of their Irish occurred in the context of a scheme that act in a manner consistent with the State citizen children, had not been involved in granted a privilege rather than recognising guarantee to defend and vindicate as far as criminal activity, and were willing to an entitlement, and as the child’s rights practicable the personal rights of the commit to becoming economically viable. would be otherwise considered pursuant to citizen, including the right to live in the The announcement also stated that section 3 of the Immigration Act, 1999, as State and to be reared and educated with applicants would be required to provide amended. The Minister also argued that due regard for her welfare. The Court proof of their identity, period of residence, there was no interference with the child’s stated that the grant of permission to and of their relationship with their child. rights pursuant to article 8 of the European remain in the State is a benefit to the lives Question 3(e) of the application form Convention on Human Rights. asked “Have you left the State for any of the Irish child as well as for the parent reason since the birth of your first Irish It was undisputed that the Respondent is an applicants as the permission enables the born child?” Applicants were required to “organ of the State” and in considering and parents to work in the State, create a tick ‘yes’ or ‘no’, and give details if the determining applications under the scheme settled family life and make secure plans answer was yes. Section 4 of the form was performing a “function” within the for the child’s upbringing and education. requested evidence of continuous meaning of section 3(1) of the 2003 Act. The Court found that the Minister residence in the State since the birth of the The Court stated that the Respondent breached the rights of the citizen child child, or, in the alternative, an explanation accordingly was under a statutory under articles 40.3 and 41 of the why such evidence could not be provided. obligation pursuant to section 3 of that act Constitution in refusing an “IBC 05” The letter addressed to the child’s father to consider and determine applications application without consideration of the referred to the “requirement” under the under the scheme in a manner compatible rights of the citizen child in circumstances revised arrangement of continuous with the State’s obligations under the where he had committed himself to residency in Ireland, stated that he did not European Convention on Human Rights. consider applications for permission to meet the criteria for granting permission to The Respondent also did not dispute that remain on the basis of parentage of an Irish child. Applying the judgment of Murray J

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(as he then was) in AO and DL to the facts The High Court stated that this means, at a meaning, the Court concluded that the of the case, the Court found that the citizen minimum, that the respondent is required scheme was not open to people who were child of non-national parents had a prima to determine whether the citizen child’s outside Ireland at the date of application. facie right to be educated and reared with right to respect for her private life requires The applicants’ claims in that case were due regard to her welfare. The Court stated that the parent be given permission to therefore dismissed. that these rights are qualified, and that the remain in the State, and must make a fair Minister may decide for good and balance between the rights of the Issues Arising sufficient reason, in the interests of the individual child and the community. The The Impact of Policy on Individuals common good, that a parent be refused Court stated that this in turn necessitates The Court helpfully clarified between permission to remain even if this would consideration of the relevant (i.e. policy, which is a matter for the Executive not be in the best interests of the child, so Constitutionally protected) rights of the or Oireachtas, and where policy is long as such decision is not citizen child. transformed into legislation or a decision disproportionate to the ends sought to be that impacts on an individual, which is a achieved. The Court found that in deciding to refuse the child’s father’s applications without matter for the Court on review if it is ECHR Rights considering the right to a private life, in the alleged that such legislation or decision is The Court distinguished between alleged sense of Constitutionally protected contrary to constitutional or legally interference in the right to respect for personal rights of the citizen child, was an protected rights. family life and the alleged interference interference with those rights for private Beneficiaries of Permission to Remain with the citizen child’s right to respect for life protected by article 8 of the The decision emphasises that the private life. The Court stated that whether Convention. The Court noted that a beneficiaries of a grant of permission to the applicants enjoy a family life is a decision that interferes with article 8 rights remain are not only those who make the question of fact. In the instant case the may be justified under article 8(2) of the application, i.e., the parents of an Irish Court was satisfied that at the date when Convention, but that no such submissions child, but also, and crucially, the citizen the father made an application the citizen were made on the Minister’s behalf. children themselves. As the court noted, child had a family life with her parents in permission to remain in the State enables Ireland within the meaning of article 8, and Finding & Relief the parents to work in Ireland, create a that her family therefore enjoyed a family The Court found that the Minister’s settled family life, make plans for the life in the State meriting the respect of the decision was in breach of the citizen child 5 upbringing and education of the child, and authorities. applicant’s rights under article 40.3 and under section 3 of the European remove uncertainty and the threat of The Court stated that the onus was on the Convention on Human Rights Act 2003. deportation. Accordingly, while the applicants to establish that the decision to The Court held that the applicants were applicants under the scheme were refuse residency constituted an entitled to certiorari quashing the invariably non-national parents of Irish interference with the right to respect for Minister’s decisions refusing the citizen children, the Irish children themselves family life. The applicants asserted that child’s father’s IBC 05 application, and benefited from the successful outcome of there was interference with the ability of ordered that his application be remitted to the applications, which vindicated their the parents to provide for the welfare and the Minister. rights. rearing of the child as a refusal meant the Continuous Residency and the Terms of parents would not be permitted to work in Supplemental Decisions the Scheme the State. The applicants advanced no The proceedings here discussed were heard The Court clearly set out that there was authority that found interference in the with four other similar but not identical 9 nothing in any of the documents regarding right to respect for family life in the applications, and three other similar the scheme that provided that the revised absence of interference in the ability of applications were heard immediately 10 arrangements would not apply to a person family members to maintain or develop afterwards. While there were some who was not continuously resident in their relationships, and the Court found factual differences between the applicants’ Ireland since the birth of the child. The that the applicants had therefore not situation in theses other proceedings, the Minister’s reason for refusing the parent discharged the onus of proof on this point. Court found that there was no substantive difference between the instant case and the applicant’s application was that the parent The Court stated that the applicant child position of the applicants in six of the applicant had not fulfilled the criterion of who had lived in Ireland since her birth seven supplemental cases. Accordingly, continuous residency. Instead, the Court must be considered to have a private life in those judgments follow that of Bode. emphasised that the citizen child is central Ireland that demands respect from the to the scheme, and that the Minister was Minister (Niemietz v Germany;6 Sisojeva v The Court found that the applicants in one bound to act in a manner consistent with Latvia7). The Court stated that the issue of the supplemental cases, Edet & Anor. v the State guarantee to defend and vindicate therefore was whether the applicants had The Minister for Justice, Equality and Law as far as practicable the personal rights of established that the taking of a decision to Reform, were in a significantly different the citizen, whatever the criteria of the refuse an application under the scheme factual situation that had a bearing on the scheme were. By way of comparison, the constituted an interference with the respect outcome of the case. The parent applicant Court found in Edet that it was an essential for such a right. The Court stated that the in Edet, a Nigerian national, applied under feature of the scheme that applicants be Convention guarantees rights that are the IBC 05 scheme from Nigeria. The resident in Ireland at the date of practical and effective rather than Court stated that the essential feature of the application, as otherwise the application theoretical, and noted that the citizen child revised arrangements was that would have necessarily been for both was dependent on her parents’ presence in “applications from non-national parents of permission to enter and remain. st Ireland for the effective exercise of her Irish born children born before 1 January, Accordingly, while continuous residency right to a private life. 2005, for permission to remain in the State was not an essential term of the scheme, it can be made on form IBC 05”. The Court is essential that an applicant be resident in The Court noted that in Kutzer v stated that an application from outside the Ireland at the time of application. Germany8i the European Court of Human State would inevitably have to have been Rights stated that regard must be had to the an application to re-enter the State and an Theoretical v Effective Rights fair balance that has to be struck between application thereafter to remain in the The Court’s approval of the cited ECHR the competing interests of the individual State. Construing the announcement of case law clarifies that the child’s rights and the community, and that the State 14th December 2004 and the other relevant under the Convention are to be guaranteed enjoys a certain margin of appreciation. documents in accordance with their plain in a practical and effective manner. As the

PAGE 14 THE RESEARCHER child in Bode was of an age that the to respect for his private life requires that Structure and Services effective exercise of her right to a private the parent be given permission to remain in Guided by a Constitution and supported by life in Ireland was dependent on her the State, and must make a fair balance patrons 2, the organization is governed by a parents’ presence in the State, and their between the rights of the individual child Board of Directors.3 At operational level, ability to provide for her, Article 8 of the and the community. This in turn services are provided by a ECHR was therefore seen to pose a necessitates consideration of the child’s multidisciplinary and intercultural team of positive obligation on the Minister to grant Constitutional rights, and any decision that 30 full-time and 35 part-time staff with the child’s parents permission to remain in results in an infringement of a citizen assistance from 48 volunteers. Uniquely in Ireland. The Court noted that these rights child’s Constitutional rights must not be Irish Migrant NGO terms, 36 nationalities are not absolute and are subject to disproportionate to the Minister’s stated are represented in the staff. qualification. Article 8(2) of the ECHR aim. The Minister will likely appeal the permits derogation from the right to decision to the Supreme Court. The governance, management and service private life where interference by a public structure of SPIRASI is presented in figure authority with the exercise of the right is in 1 Decision of Finlay-Geoghegan J. 1. It can be seen that client services are 2 AO & DL v The Minister for Justice, Equality delivered through the Centre for the accordance with the law and is necessary and Law Reform [2003] 1 IR 1 and in the interests of national security, 3 [1980] IR 32 Education and Integration of Migrants public safety or the economic well-being 4 [1997] 3 IR 511. In supplemental cases where (CEIM), the Centre for Health Information of the country, for the prevention of the citizen child’s parents were married to each and Promotion (CHIP), and the Centre for disorder or crime, for the protection of other, the applicants asserted the right that a the Care of Survivors of Torture (CCST). child derives from being a member of a family This overview takes as its focus the work health or morals, or for the protection of within the meaning of article 41. the rights and freedoms of others. The 5 See Boultif v Switzerland [2001] 33 EHRR 1179 of CEIM. Minister, however, offered no justification 6 (1992) 16 EHRR 97 in terms of Article 8(2). 7 16th June 2005 8 (2002) 35 EHRR 653 9 Oguekwe & Anor v The Minister for Justice, Vindication of the Rights of the Child at all Equality and Law Reform; Fares & Anor. v The Times Minister for Justice, Equality and Law Reform; The Minister did not dispute that the Dimbo & Ors v The Minister for Justice, citizen child had certain personal rights, Equality and Law Reform, Edet and Anor. v The but did assert that these rights were not Minister for Justice, Equality and Law Reform. 10 Adio and Ors. V The Minister for Justice, relevant to the IBC 05 scheme. The Equality and Law Reform; Oviawe and Ors v Minister argued that refusal of a parent’s The Minister for Justice, Equality and Law application under the scheme did not Reform; Duman v Minister for Justice, Equality change that parent’s status in the State, and and Law Reform. that it would not be until a deportation order issued against that parent, with its consequence of the possible breaking up of the family, that the rights of the citizen Educational Services at SPIRASI Fr. Michael Begley, CSSp child would have to be considered. The Court clearly rejected this argument, and Director of SPIRASI The Centre for the Education and emphasised that the rights of the child Organizational Context Integration of Migrants (CEIM) require respect not only at deportation The Trustees of SPIRASI (Spiritan Figure 2 gives an overview of the number stage, but that as the personal rights of the Asylum Services Initiative), the Holy of participants for each of SPIRASI’s child require continuing guarantees, such Ghost Fathers, have a long standing programmes. In 2005, 2,285 individuals rights had to be defended and vindicated at tradition of founding and supporting availed of our services. Of these, a quarter all times, and therefore required the NGO’s with a broad humanitarian remit. In participated in educational activities Minister’s respect in his consideration of Ireland, many readers of The Researcher offered under the auspices of CEIM. the parent’s application for permission to will be familiar with organizations like remain, particularly as the Minister had Aidlink, Aids Partnership Africa, Concern, Figure 2. SPIRASI Participants committed himself to considering Kimmage Development Studies Centre, per Programme 2002 to 2005 applications for permission to remain, Refugee Trust, Self-Help Development predicated on parentage of an Irish child. 2000 International, and the World Mercy Fund. 18 14 The Court’s decision clarifies that the 18 0 0 All of these were established to respond to 16 0 0 effective rights of Irish children, including 14 0 0 14 5 2 the humanitarian needs of impoverished 12 8 3 Irish children of non-national parents, 12 0 0 populations in developing countries. In 10 0 0 903 require positive vindication, and not just 800 78 1 contrast, SPIRASI, established in 1999, 870 consideration when, for example, the 600 518 571 focuses on the needs of newly arrived 420 parent of such a child faces deportation. 400 307 431 disinherited immigrants into Ireland. This 200 343

orientation is reflected in our mission 0 2002 2003 2004 2005 Conclusion statement: “SPIRASI is a humanitarian, The Court’s decision places the rights of intercultural, non-governmental CCST CHIP CEIM the Irish child at the heart of the “IBC 05” organization that works for asylum scheme, while continuous residency in the seekers, refugees and other disadvantaged The 11 CEIM staff members provide an State since the birth of a child is revealed migrant groups with special concern for adult learning environment to those not to be a requirement of the scheme at survivors of torture. In partnership with members of the asylum seeking and all. Precisely what the respect due from the others, SPIRASI enables access to refugee communities who would otherwise Minister to the children’s rights consists of specialist services to promote the well- have no or little access to such provision. It remains to be seen. It is clear that regard being of the human person, and encourages receives support from the European must be had to the fair balance that has to self-reliance and integration in Ireland”. In Refugee Fund, the Gender Equality Unit of be struck between the competing interests advancement of this aspiration, and across the Department of Justice, Equality & Law of the individual and the community, and all its programs, SPIRASI works in Reform, the CDVEC, World Mercy Fund, that while the State enjoys a certain margin 1 collaboration with statutory and other and the Trustees. of appreciation, the Minister is required to voluntary bodies. determine whether the citizen child’s right

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Since its inception, modules on language, initiative. For registration details, contact examining the authenticity of documents literacy, and life skills have been provided. Ovidiu Matuit, Integration Officer, at called Super Mini Ultra Violet Fluorescent Gaining proficiency in English is seen by [email protected] Lantern JML 1197UV. Reg. Design No. immigrants as a primary pathway to 1000903 and Information on the reliability integration. Equally, the value of the For further information, please contact of the instrument’. A commercial internet ‘learning wide’ and ‘learning deep’ Edige Dhala, CEIM Manager, at site resolved the former and an embassy dimensions of adult education are seen as [email protected] . site addressed the latter issue as follows intrinsic in the process of adaptation to any 1 See Spenser, S (2006). Migration and Integration: The “…there is a very useful item called a new cultural setting. During 2005, 316 Impact of NGO’s on Future Policy Development in students were registered for English Ireland. Oxford: The Centre on Migration, Policy and "Super Mini Ultra Violet Fluorescent Society, University of Oxford. Lantern". This is basically a small ultra language courses and 68.4% of these 2 Mr. Peter Sutherland, Professor William Shabbas, & violet detector, which detects a particular completed their courses and received Senator Shane Ross. certificates. Figure 2 above gives a 3 Dr. Paddy Roe (chairperson), Dr. Mohammed Al- watermark logo at the bottom of each breakdown of participants according to Sader, Fr. Michael Begley (secretary), Mr. Chinedu certificate… For those of the manning their status. It can be seen that nearly half, Onyejelum, Dr. Michael Murphy, & Fr. John Coleman. agencies which do not already posses(sic)

43% of participants, were asylum seekers. 1 such a device, we would strongly suggest An armchair anthropologist obtaining one. It is a very efficient and

Figure 3. Legal Status of English easy way of verifying fake documents, 3 Language Participants 2005 money notes etc’’. (N=316) Other, 16 . 5 % Asylum Asked about the Flec Fac flag the Flags of Parent of Seeker, the World portal provided an answer to Irish Born 42.4% Child, 10 . 4 % questions about its design, insignia and colours, including different factional flags 4 of Flec Fac. By Patrick Dowling, RDC EU The following was requested of Cote Citizen, d’Ivoire: the ‘treatment of those with non- 12 . 3 % Some of the researchers in the RDC in Refugee, 18 . 4 % their thousands of searches for country of Ivorian names.’ IRIN in January 2006 points out origin information have become akin to

255 students also completed a diversity of armchair anthropologists. While much of the information sought fits into familiar “Migrant workers from neighbouring courses in information technology ranging countries such as Burkina Faso and Mali from basic computer literacy skills to web categories, we can still be surprised by the requests for the exotic and the obscure. comprise nearly 26 percent of Cote design. A higher proportion (58%) of those d’Ivoire’s population. Many immigrants doing IT courses, were asylum seekers (see Knowing the importance of COI for refugee and subsidiary protection complain of intimidation and racketeering figure 3). by security forces, while rebels in the north hearings concentrates the mind, whatever say that foreigners and Ivorians born of Figure 4.Legal Status of IT the information sought. Patrick Dowling, Training Participants 2005 a researcher with the RDC, has collected immigrant parents are often treated as (N=255) second-class citizens’’.5 Other below some of the more uncommon 18 % requests for information and parts of the ‘Is it common for a brother and sister in Parent of responses we have issued. Irish Born the same family to have different surnames Child 13 % in Rwanda’ was addressed in a document In this article an armchair anthropologist is from African Rights which elucidated that:

taking a look at the unusual side of COI “Each family member has his or her own Asylum research, navigating a selection of Seeker individual surname, as well as first name. 58% unconventional and imaginative research Refugee Some urban middle class families use 11% requests received, adding in each case, the family surnames shared by their children, supporting material ( if any ) found to but this is still comparatively rare. Hence Following a review of CEIM’s activities in answer the question. It is a journey from siblings can have different surnames, and 2005, it was decided that all students birth to senescence, traversing multifarious having a common surname is not a sign of would benefit from a more intensive, issues including ‘Flec Fac flags’, ‘Sheep being related, but of coincidence’’.6 integrated program offering 20 hours of names in Chad’, ‘Chewing tobacco in tuition weekly. For registration details, Darfur’ and ‘Rwandan surnames’. Regarding Somalia ‘What would happen to contact David Mooney, ESOL Habar Gedir female who married or Information sought on ‘women in Nigeria Coordinator, at [email protected]. At became pregnant by a member of the Reer giving birth in churches’ was answered in present, modules on English language, Hamar or other minority clan’ was a query a publication by the UNFPA which stated computer literacy, life skills, and art are submitted to the RDC. No information ‘’poverty has engendered a spiritual offered. Individualized mentoring is also could be located on this subject, however revival, which has resulted in many provided. the Norwegian Refugee Council note how women choosing to deliver their babies in 2 lineage is important to Somalia’ In parallel with this development, an churches.’’ employment program - Employment for ‘’ “Based on their patrilineal kinship and A question was asked of Saudi Arabia Parents of Irish Born Children (EPIC) in lineage segmentation, the Somali people ‘whether the authorities are known to partnership with Business in the are divided into six major clans, which in make numerous mistakes on official Community and others was recently turn branch out into numerous sub clans, documents such as Birth certs and launched by the Minister for Justice, and minority groups. The major clans passports’. No information was found on Equality and Law Reform, Michael Mc include Darod, Dir, Hawiye and Issak th this issue. Dowell, TD on 20 November 2006. Our collectively known as Samale group, and role is to provide the occupational English, Shedding light on documents concerning the Rahaweyn (Digile and Mrifle) life skills training, psychosocial services, Iran the RDC was asked to find community categorized as Sab group. The and employment mentoring support ‘Information on an instrument used in Hawiye clan includes Habargedir, Abgal, dimensions as part of a wider employment

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Murusade, Hawadle, Galjel, Moblen, adults who today bear facial marks did not Sheikal, Djijele, Badi Adde, and Ajuran have any choice in the matter but as In Zambia a question was asked on while the Darood group include Majerten, parents it behoves on them to decide ‘practices of the occult/rainqueens’. No Marehan, Dhulbahante, and Ogaden, whether their children should be marked or specific sources were available for this but LeelaKase, Ortoble, Kaskiiqabe and not."10 on witchcraft an article from Reuters notes Dashiishe. The Dir sub clans include “A Zambian man has been jailed for Biyamal, Gadsan, Gadabursi, Fiqi ‘Is there any information regarding Soaod witchcraft after a human heart was found Muhumud, Samaron, Qubeys, Werdai and (chewing tobacco) in Darfur in Sudan’. No in his possession, and police are Akishe. The Issak are subdivided into COI could be sourced referring to chewing investigating a possible murder, state radio Habar Awal, Habar Jalo and Habar Yunis, tobacco as "Soaod". A map from the and prosecutors said Thursday”.15 Edigale, Ayub and Arab. The Digil and Humanitarian Information Centre Darfur shows that the North Darfur areas of Mirifle are subdivided into sub clans. The ‘Information on the practice of voodooism Tawila and Korma are mainly associated Digil include Geledi, Shanta Aleen, in Benin’ was requisitioned in a US Bagadi, Garre, Tuni, Jido, and Dabarend with the production of tombac (chewing 11 Department of State report which found tobacco). while the Mirifle are divided into Siyed that and Sagal. Some of the major sub clans in Another agricultural issue was sought, this the Mirifle group are Laysan, Harin, Elay, ‘’Many individuals who nominally identify time for Chad: ‘Names and types of Boqol Hore, Jiron, Jilible, Gelidle, themselves as Christian or Muslim also 7 indigenous sheep’. The European Farm Hadame, Luway, Huber and Yantar’’. practice traditional indigenous religions. Animal Biodiversity Information System Among the most commonly practiced is lists breeds of sheep in Chad as follows ‘How accurate are bone density tests in the animist "Vodun" system of belief, also determining age’ was required in the ‘’Arabe (Local names: Black Maure, commonly known as voodoo, which context of Iranian COI. A medical agency Mauritiana, Moor, Moorish); Barbarin originated in this area of Africa. Almost all Imagis in a survey said citizens appear to believe in a supernatural (Local names: Fezzanais); Bornu (Local order’’.16 “The accuracy of bone mineral density test names: Balandji, Balani, Balemi, 8 Balonndi); Bororo (Local names: Fellata, is high, ranging from 85% to 99%’’. In neighbouring Nigeria a request on ‘the Waila); Fulani (Local names: Foulbe, custom of bride price’ was surveyed by ‘Any information on treatment of suffers Fulbe, Peul-Peul, Peulh); Kababich (Local Asylum Aid who in an analysis on refugee of epilepsy in Zimbabwe’. An Abstract of names: Bidiri North Sudanese, Desert women and domestic violence answered a pilot study of epilepsy in Zimbabwe by Sudanese, Drashiani, Gash); Kirdími

National Center for Biotechnology (Local names: Djallonke, Fouta Djallon, ‘’The commodification of women in Information reported that: Futa Jallon, Guinean’’ marriage – the bride price. This low status

European Farm Animal Biodiversity of women is confirmed on marriage by “As a preliminary to designing a health Information System (EFABIS) (undated) abuse of the bride price system. The bride education programme on epilepsy for Breed Names: Sheep – Arabe; Barbarin; price is a sum of money paid by the groom teachers in Zimbabwe, we evaluated the Bornu; Bororo; Fulani; Kababich; and his family to the family of the bride, knowledge and attitudes to epilepsy of 12 Kirdimi ‘’. and completes the marriage contract. teachers in Epworth, a poor, high density Originally a sign of respect for the value of suburb of Harare, Zimbabwe. A query on Iran was posed: ‘if there is a the bride, it has now become a symbol of MATERIALS AND METHODS: All particular season in Iran when lambs or “purchase” of the woman by the man, and teachers in Epworth were invited to ewes are born’. The ‘Summary’ of an FAO of the right of a husband to do as he wishes awareness workshops on epilepsy. A report says with his “possession”. The institution questionnaire on knowledge and attitude of therefore commodifies women and sets epilepsy was distributed to all consenting ‘’ The adequacy of quality and quantity is into place a power structure whereby participants. RESULTS: 165 teachers very important for breeding ewes. The women are excluded from decision- (Male: Female 1:1.9) responded. Of the range forage plant supply and its quality making and violence and abuse may respondents 89% had heard or read about are adequate for only a limited time in the result’’.17 epilepsy, while 70.6% had observed an late spring and early summer each year. Following an autumn mating, the lambs epileptic seizure. Epilepsy was considered For Guinea the RDC had to source are born in late winter or early spring. hereditary by 34.6%, while 12.6% thought ‘information regarding the traditional Under this regime, it is not possible to it was a form of insanity. Only 0.6% marriage ceremonies of the Fulani tribe’. have more than one lamb crop per year. In thought evil spirits were a cause, 22.6% The Encyclopaedia of World Cultures addition, because the range forage for the thought that epilepsy was contagious, 82% (Africa and the Middle East) says ewes does not meet their requirements, the would allow their child to play with an epileptic child, 76% would marry an percentage of lambing is low and lamb 13 "There has been some confusion regarding epileptic while 55.7% would employ an mortality is high’’. what constitutes the marriage ceremony epileptic. The majority would among the Fulani. Because neither bride Information was sought on ‘when the rainy accommodate an epileptic and teach an nor groom may be present at the seasons occur in Somalia’. Sources epileptic child in class. CONCLUSIONS: ceremony, owing to shame-avoidance consulted by the RDC state that there are These positive attitudes towards epilepsy taboos, the significance of the cattle two rainy seasons in Somalia: a long rainy by teachers may be attributed to their ceremony (koowgal) overlooked. In that season called Gu and a shorter rainy higher level of education and may imply ceremony the bride’s father transfers one season called Day, Dayr or Deyr. A that with increasing levels of formal of his herd to the groom, legalizing the country profile on Somalia published by education in the general African marriage. There may also follow a typical Forced Migration Online says that population, a more tolerant attitude Islamic ceremony termed Kabal. Again, 9 towards epilepsy can be expected’’. “The Somali differentiate between four neither bride nor groom may actually be 18 seasons, two wet and two dry: Gu (long present at the ceremony’’. An article in the Nigeria newspaper This rainy season) lasting from April to July, Day on the topic of ‘facial markings’ Regarding the subject of ‘widows in Togo Hagaa (dry) lasting from July to October, purports being forced to marry their brother-in- Dayr (the small rains) from October to law’, a singular reference by the "In Nigeria generally, facial marking is December, and Jilaal (long dry season) 14 International Federation of the Red Cross lasting from December to April’’. fading. Because it is done to infants most pointed out

THE RESEARCHER PAGE 17

"Togolese Red Cross activities, which Files)/BC127850FB1156B9802570BA00540318 Directory on Return for were carried out in cooperation with the /$file/Somalia%20-November%202004.pdf 8. Society’s various partners made the Imaginis, ( July 2005 ), Diagnosis of Asylum Seekers Osteoporosis with Bone Mineral Density following types of impact on the Measurement communities... Better understanding and http://66.223.111.234/osteoporosis/osteo_diagno change in attitudes of the communities se.asp#tests regarding some traditional, but harmful 9. National Center for Biotechnology Information, practices such as: widows forced to marry ( September 1997 ), Knowledge and attitudes of their brother in-law".19 teachers towards epilepsy in Zimbabwe http://cat.inist.fr/?aModele=afficheN&cpsidt=27 The moribund practice in Togo of widows 80469 10. Max Amuchie, ( 25 September 2003 ), ‘’ forced to marry their brothers in law is part Vanishing Attraction of Facial Marks’’, This of the same human reciprocity that this Day article began with. The succeeding http://groups.yahoo.com/group/ndokwa- by Bobby Pringle parturition issues have witnessed a trek web/message/1506 International Organisation for through a variegated array of COI 11. Humanitarian Information Centre, ( 20 August Migration requests; therefore it is not inappropriate, 2005 ), North Darfur Agricultural Economic The Dublin Mission of the International completing a cycle of growth, to conclude Zones http://www.reliefweb.int/rw/fullMaps_Af.nsf/lu Organization for Migration recently with care of the elderly. FullMap/E3215E97ABC054E285257065006D4 launched their new research project titled 1DE/$File/hicd_AGR_northdarfur_sdn200805.p Directory on Return for Asylum Seekers A discussion of ‘Care of the elderly in df?OpenElement (DORAS). This research project aims to Nigeria’ was addressed in a study by 12. European Farm Animal Biodiversity Information Uzoma Okoye which states System, ( undated ), Breeds in Country: Chad, assist asylum seekers, with both pending Sheep and rejected status, to make a more ‘’ Caring of the elderly has always been http://efabis.tzv.fal.de/ informed decision on voluntary return to taken for granted to be filial responsibility 13. M.B. Ghadaki, P.J. Van Soest, R.E. Mcdowell, their country of origin. It is also intended with little or no government support in B. Malekpour, ( 1975 ), ‘Chemical composition that this research project will enhance the and in vitro digestibility of some range forage Nigeria (Ekpeyong, 1995; Ohuche & species of Iran’, Evaluation and mapping of reintegration assistance currently offered Littrell, 1989). However social and tropical African rangelands, Proceedings from by IOM in countries of return. economic changes currently occurring the seminar, International Livestock Centre for have put into doubt the continued viability Africa, 3-8 March 1975 Bamako-Mali, Food The International Organization for of such traditional arrangements for the And Agriculture Organization Of The United Migration currently operates a number of Nations elderly. Such changes like increased Assisted Voluntary Return and http://www.fao.org/wairdocs/ilri/x5543b/x5543b Reintegration (AVR) programmes which emphasis on smaller family units, 0z.htm are open to asylum seekers and irregular migration to urban areas, more working 14. David Griffiths, ( July 2003 ), Somalia-Country wives, new life styles and changing values Profile, Forced Migration Online migrants from non-EEA countries. The all have effects on the entire society the http://www.forcedmigration.org/guides/fmo016/ programmes are for those who wish to youth inclusive and will to a large extent fmo016.pdf return to their home country, but do not 15. affect their overall relationship with the Reuters, ( 1 August 2002 ), ‘’Man Found with have the means, including the necessary Human Heart Gets Witchcraft Rap’’ elderly now and in future’’.20 documentation, to do so. An important http://www.wwrn.org/article.php?idd=7706&sec optional component of the AVR =73&con=62 programme is a Reintegration package The RDC has no control over what it will 16. US Department of State, ( 8 November 2005 ), be asked for COI but it is our role as Benin International Religious Freedom Report designed to help people resettle in their researchers to answer as well as we can 2006 country of origin. whatever we receive. Now back to those http://www.state.gov/g/drl/rls/irf/2006/71286.ht sheep in Chad… m The DORAS research project arose as a 17. Asylum Aid, ( May 2003 ), Refugee Women and result of reoccurring questions and 1. Anthropology is defined by Harris as follows Domestic Violence: Country Studies, Edition 5, concerns expressed by AVR applicants on ‘’Anthropology is the study of humankind – of Nigeria matters such as the citizenship of children, ancient and modern people and their ways of http://www.asylumaid.org.uk/New%20RWRP/R WRP%20Publications/RWRP%20Refugee%20 access to employment, education living.’’ ( Marvin Harris, ( 1997 ), opportunities and questions on healthcare Culture, Nature, People, An introduction to Women%20and%20Domestic%20Violence%20 general anthropology, 7th edition, New York: May%2003.doc provision in their home country. In the Longman, p1, 18. Frank A Salamone, ( 1995 ), ‘Fulani’, in John past IOM attempted to respond to these 2. UNFPA, ( 22 November 2004 ), Nigeria Middleton and Amal Rassam, ( editors ), concerns on a case by case basis. DORAS http://www.unfpa.org/fistula/docs/nigeria.pdf Encyclopaedia of World Cultures, Volume IX, now aims to address such needs by 3. Africa and the Middle East, New York: GK Hall Royal Norwegian Embassy in Manila, (17 July & Company, pp. 100-104. compiling and distributing information 2003), Fake Seaman’s Certificates 19. International Federation of the Red Cross, ( 5 sheets addressing as comprehensively as http://www.norway.ph/info/maritime/july03/july possible the most frequently return related 03.htm July 2003 ), Programme Update, Togo, Appeal 4. No. 01.33/2003; Appeal Target: CHF 325,053, concerns of IOM applicants. DORAS aims J Bakker, ( 4 April 2001 ), Cabinda, ( Angola ), Programme Update No. 1; Period covered: Flags of the World to provide information on service January to June 2003 providers for a wide range of social http://www.crwflags.com/fotw/flags/ao-cabin.html http://www.ifrc.org/docs/appeals/annual03/0133 5. IRIN, ( 13 January 2006 ), COTE D IVOIRE: 0301.pdf supports and service provision.

Burkina Faso nationals arrested, shot dead after 20. Uzoma Okove,( 2004 ), The erosion of attack on barracks traditional forms of care for the elderly and its The information packs will include http://www.irinnews.org/report.asp?ReportID=5 implications for the elderly in Nigeria, information on one or more of the 1102 Department of Social Work, University of following topics: 6. African Rights, ( August 1995 ), Rwanda: Not so Nigeria Innocent – When Women Become Killers http://www.uaps.org/confageing/uzoma%20oko Information on Benefits or Entitlements http://www.africanrights.org/publications/Innoce ye.pdf including, but not limited to: nt895.pdf 7. Norwegian Refugee Council, ( 24 November ƒ Government agencies which provide 2004 ), Profile of internal displacement: Somalia, Global IDP Database benefits or entitlements http://www.internal- ƒ Non-governmental agencies which displacement.org/8025708F004BE3B1/(httpInfo provide advice and assistance on obtaining benefits or entitlements

PAGE 18 THE RESEARCHER

ƒ Types of benefits available This project will be monitored by IOM and sustainable training pool in order to ƒ Healthcare regular reports will be submitted to the provide trainings for COI users. The ƒ State healthcare Department of Justice, Equality and Law Refugee Documentation Centre Ireland ƒ Health insurance Reform. A final report will the contain will be in charge of implementing this part ƒ Social Services information resulting from the project, as of the project in cooperation with ƒ State organisations well as a supporting narrative on these ACCORD and Hungarian Helsinki ƒ NGOs results, along with future Committee. The RDC will host three two- ƒ Services for children recommendations. day train-the-trainer seminars in Dublin ƒ Services for the elderly during 2007. The seminars will provide ƒ Education trainers with the skills necessary to create a ƒ Primary and Secondary education (Private and State) learning environment for participants on ƒ Third level education COI Network Project III training courses. A wide range of topics

ƒ Apprenticeships and other Training will be covered including presentation and ƒ Accommodation communication skills, types of training and ƒ Finding accommodation the pros and cons of each, practicalities of ƒ Private Rented accommodation organising a training course, e-training ƒ Deposits skills, motivation of participants and ƒ Complaining about accommodation sustainability of quality assurance. standards ƒ Emergency Accommodation COI Master Class ƒ Employment The master class aims for the enhancement

ƒ Reintegration funding from IOM and of professional performance of research by Carol Doyle, RDC other sources staff of COI units. The master class is ƒ Funding for small businesses The Refugee Documentation Centre intended to be a forum for up to 40 COI ƒ Getting advice on starting a business professionals whereby professional ƒ Apprenticeships and other Training (RDC) was invited to join the COI experience and know-how can be ƒ Citizenship in Countries of Return Network and Training group in 2003. ƒ Through marriage Since then the RDC has contributed exchanged. It will take the form of ƒ Through descent actively to building a network of non- workshops, lectures etc. It is intended to ƒ Through Birth governmental/independent COI centres in hold the master class immediately prior to ƒ Application Procedures Europe, identifying best practices in COI a COI Seminar i.e. country presentations ƒ Support Groups and aiming for a common training on two selected countries of origin by ƒ Contact details of other support groups approach in COI. The RDC participated in human rights experts and UNHCR experts ƒ Contact details of International NGOs and contributed to the production of a to an open forum of governmental and and Intergovernmental training manual, Researching Country of non-governmental representatives. ƒ Organisations active in the country of Origin Information, which was produced ACCORD will implement this part of the origin in three languages. The course was adapted network project in cooperation with all partners. It is hoped that this information will as an e-training module available in cd- rom or a networked version. positively contribute in enabling asylum Good practice of COI seekers to make a more informed decision The Network’s third project, COI Network The aim is to analyse leading nd rd on return as well as facilitating a more III, commences in December 2006 with a jurisprudence from 2 and 3 instances of sustainable and comprehensive meeting in Vienna. It comprises all EU member states, from the European reintegration provision of the AVR governmental and non-governmental Court of Justice (ECJ) and the European programme. organisations from 15 EU member, Court of Human Rights (ECtHR). The

accession and candidate states. It is based project will examine the use of COI in the The research project which runs for 18 on preliminary recommendations and asylum field in the European Union. The months is a joint collaboration between experience of the COI Network II project. research will result in a comparative study IOM Dublin, The Irish Government, IOM The COI training activities will be which may serve as a helpful tool offices in countries of origin, local partners expanded geographically to incorporate contributing to EU Member States’ efforts in Ireland and local partners in country of more member states and accession states to establish a single asylum procedure and origin. It is funded jointly by the Irish of the European Union. The training will common standards in refugee status Government and the European Refugee also be expanded institutionally to determination. The Hungarian Helsinki Fund. Committee will be in charge of this part of incorporate asylum authorities. In order to the project. Considering the frequency and distribution contribute to the EU goal of achieving an objective, transparent and accurate COI of IOM offices worldwide, IOM are in a The Dutch Council for Refugees is system that delivers official, relevant and unique position to provide concise, responsible for continuous monitoring and reliable information, the COI Network III informed and up-to date country of origin evaluation of the COI Network III project. information. Such information will be project will concentrate on the following gathered with reference to current best activities: - A Steering Committee was formed to practices in relation to return related oversee the third project and the Refugee Training countries of origin. Research results will Documentation Centre was invited to Training will be provided for COI users be made available in hardcopy and also on become a member. The first Steering and decision makers involved in RSD the IOM Dublin website. Committee meeting is taking place in procedures. During the project COI It is important to note that the return Vienna on 12th December followed by a training will be provided in 12 European information provided will not relate to Network Meeting on 13th and 14th countries including EU member states and protection concerns, or concerns directly December. COI Network III has officially Croatia, Romania and Turkey. related to asylum claims. IOM is not a commenced and I will keep you up to date protection agency, and any issues of this COI Trainer Pool with all developments throughout the nature which may arise will be referred Up to 12 experienced COI researchers, project. onto appropriate agencies, including legal selected from governmental and non- representatives. governmental COI units, will be trained as

COI trainers. These trainers will form a

THE RESEARCHER PAGE 19

Who are the Janjaweed? been armed and trained in Libya. indiscriminately killed, whipped and Following the Libyan defeat in 1987 this raped. Hundreds of villages have been militia retreated into Darfur, where it was burned to the ground after looting. Grain in given sanctuary by Sheikh Musa Hilal, storage or about to be harvested is chief of the Mahamid Rizeigat Arabs of destroyed. These tactics have led to the north Darfur, eventually been incorporated depopulation of entire areas inhabited by into his own forces. the Fur, Zaghawa, Massaleit, and other

smaller groups of black African origin.” David Goggins Investigates. What does the name Janjaweed mean? RDC Researcher The term “Janjaweed” is often translated Human Rights Watch (HRW) has reported as “Devils on horseback, or “Evil spirits on extensively on the situation in Darfur, Introduction horseback”. HRW offers the following providing the following description of the Mukesh Kapila, United Nations definition: campaign against the civilian population: Humanitarian Coordinator for Sudan, has described the present situation in the “Definitions of the term generally allude to “Since the February 2003 official Darfur region as “the World’s greatest armed horsemen. One Arabic speaker told emergence of the Darfur rebel groups, humanitarian crisis and quite possibly the Human Rights Watch that “Jan” referred to attacks on civilians have increased in scale, world’s cruellest war at the moment.” a gun and “Jaweed” to horse. A Darfurian number and brutality and have been Louise Arbour, UN High Commissioner scholar of Darfur, remarked that conducted on villages and towns in the for Human Rights, has stated that the “Janjaweed” was the term used during his absence of rebel presence or military Sudanese government and an allied militia youth to describe outlaws.” targets. Civilians sharing the ethnicity of known as the Janjaweed are “responsible the rebel movement, namely the Fur, for the most serious violations of An alternative explanation of the origin of Masaalit, and Zaghawa and a few small international human rights and the name “Janjaweed” is presented by the tribes, have become the main targets of humanitarian law.” According to a WHO, anonymous author of an entry on the government military offensives aimed at survey about 200,000 people have died Janjaweed in the Wikipedia online destroying any real or perceived support since this crisis began, and there are many encyclopedia who suggests that the term is base of the rebel forces. Government other studies which suggest that the actual a derivative of the Persian words “Jang” forces and Janjaweeed militias have death toll may be 400,000 or higher. (war) and “Jangawee” (warrior). inflicted a campaign of forcible Between 2 and 2.5 million people are said displacement, murder, pillage, and rape on to have been displaced, either internally or Rebellion in Darfur hundreds of thousands of civilians over the to refugee camps in Chad. The present crisis arose in February 2003 past fourteen months” when two rebel movements, The Sudanese Background to the conflict Liberation Army/Movement (SLA/M) and A typical HRW report describes attacks on The Darfur region is in western Sudan, the Justice and Equality Movement (JEM) civilian villages as follows: bordering the Republic of Chad. It is about began an insurgency in Darfur, rebelling the size of France, with a population of against what they claimed was the “Dozens of refugees interviewed by about 5 million people. This population marginalisation of the region by the Human Rights Watch and others have consists of about 40 ethnic groups, broadly government in Khartoum. Both SLA/M described repeated attacks on their villages divided on the basis of language and and JEM were dominated by members of and towns. Hundreds and hundreds of occupation into “Arabs”, who are Arabic- the Zaghawa tribe. villages have been destroyed, usually speaking nomadic herders of camels and burned, with all property looted. Key cattle, and “Africans”, who are mainly To counter this rebellion the Sudanese village assets, such as water points and sedentary farmers. The most prominent government enlisted the services of mills, have been destroyed in an apparent African groups are the Zaghawa, the existing “Arab” militia groups, who they effort to render the villages uninhabitable. Masalit and the Fur. (Darfur means land of considered to be more reliable than the Numerous civilians have been killed and the Fur) However, Alex de Waal, regular Sudanese army. injured by aerial bombardment and militia

Programme Director at the Social Science raids. Hundreds of women have reportedly Janjaweed attacks on civilians Research Council, says that: been raped by militia and government The principal charge levelled at the troops. Children have been abducted in “Despite talk of ‘Arabs’ and ‘Africans’, it government of Sudan is that, rather than large numbers. Once they fled their homes, is rarely possible to tell on the basis of skin use the militia in direct conflict with the thousands of civilians have been subjected colour which group an individual SLA/M and JEM, they have instead incited to systematic attacks, looting, and violence Darfurian belongs to. All have lived there the Janjaweed to attack civilian villages by militias in government-controlled towns for centuries and all are Muslims.” suspected of providing support for the and at Janjaweed checkpoints that dot the rebels. Among the crimes of which the roads. Even when displaced persons have Originally the various ethnic groups of Janjaweed have been accused are mass reached the larger towns where they hope Darfur lived in harmony. However, a killings, the burning of homes (sometimes to find assistance and at least a refuge from severe drought in the 1980s led to with the occupants still inside), gang rape, further attacks, they continue to be competition over scarce resources such as looting of cattle and other livestock, the systematically preyed upon by the land and water, resulting in increasingly destruction of crops and food stores, and Janjaweed” violent clashes between farmers and the abduction of children. nomads. As a result of these clashes the A day-day record of incidents in the Darfur Arabs formed militia groups which had An International Crisis Group (ICG) report region can be found on the website of the support from the Arab-dominated published in 2004 described Janjaweed Humanitarian Information Centre (HIC) government in Khartoum, while African attacks on civilians as follows: for Darfur. villages formed self-defence units to “Testimony of displaced people and (http://www.humanitarianinfo.org/darfur/) protect themselves. refugees depict a consistent pattern of attacks by a government aligned militia, Role of the Sudanese government Origin of the Janjaweed the Janjaweed, whose horse-and camel- Although the Sudanese government has According to Alex de Waal, the Janjaweed mounted fighters use scorched-earth consistently denied any connection with were originally members of a Chadian tactics, backed by government air and land the Janjaweed, human rights groups, such militia which had supported Muammar strikes. Survivors tell of Janjaweed as HRW and ICG, have stated that the Gaddafi’s invasion of Chad and which had assaults in which villagers are government is financing and arming the

PAGE 20 THE RESEARCHER militia, providing them with weapons, Janjaweed militia, both as a client and an region, the prospect of loot apparently has training and uniforms, The ICG says that: ally to carry out counterinsurgency and been a greater incentive for most.” ethnic cleansing against Fur, Masalit and “Travellers to the region relate that most Zaghawa Sudanese in the Darfur region.” According to the BBC, “the main clans Janjaweed are armed with either AK-47s involved on the Janjaweed side are the or G3 rifles and ride camels or horses Kenneth Roth, Executive Director of Jalul, Ereigat and Mahariya of Musa provided by the government. It is alleged Human Rights Watch, has commented on Hilal.” It should be noted that not all Arab that the government paid many of them the close co-operation between the groups in Darfur have joined the roughly U.S $100 when fighting began.” Janjaweed and government troops, saying Janjaweed, with many tribes remaining that: neutral instead. HRW suggests that Janjaweed members receive between $100 and $400, as well as “The Janjaweed are no longer simply Janjaweed uniforms continuing state support for their relatives militias supported by the Sudanese HRW cites Masalit witnesses as saying should they die in combat. government. These militias work in unison that the only difference between Janjaweed with government troops, with total and army uniforms is a badge depicting an HRW has alleged that there is collusion impunity for their massive crimes.” armed horseman that the Janjaweed wear between the Janjaweed and government on their breast pocket. forces, saying that: A HRW report which identifies 16 Janjaweed camps in Darfur says that: Structure of the Janjaweed “Massacres or mass killings of civilians in ICG states that the government set up three Fur, Masalit and Zaghawa areas have taken “Five of the 16 camps, according to separate Janjaweed divisions: The Strike three forms: extrajudicial executions of witnesses, are camps the Janjaweed share Force, The Border Guard and the Hamina men, by army and Janjaweed; attacks in with the Sudanese government army. Even (traditional tribal leaders). HRW says that which government soldiers and Janjaweed more ominous, the Sudanese army has rebel leaders have identified six Janjaweed have played an equal role, fighting side by incorporated members of the Janjaweed brigades, naming two of them as the “Liwa side; and attacks in which government militia into the police and the Sudanese al-Jammous, or Buffalo Brigade, formerly forces have played a supporting role to army, including Islamist militia the headed by Musa Hilal, and the “Liwa al- Janjaweed – “softening up” villages with Popular Defense Forces (PDF), which is Nasr, or Victory Brigade, formerly led by heavier weapons than those carried by the under army jurisdiction.” “Shukurtallah”. Janjaweeed, providing logistical support and, in the opinion of many villagers The London-based human rights Current activities of the Janjaweed interviewed, “’giving the Janjaweed organisation Justice Africa says that: A treaty known as the Darfur Peace protection as they leave’.” Agreement (DPA) was signed in May “During the last twenty years, the 2006. However, this treaty is seen as been Usman Tar, a Doctoral Researcher at the characteristic mode of action employed by seriously flawed as it rejected by the two University of Bradford, in a paper on the successive governments in Khartoum, main rebel groups, who have continued to activities of civil militias in Darfur refers when they want to fight a cheap and fight against the government. to the relationship between the Sudanese effective counterinsurgency, has been to government and the Janjaweed as follows: employ militias and to give great Following pressure from the African discretion to commanders on the ground. Union (AU), the Sudanese government “There is a relative consensus, both within Thus the militia massacres in Bahr el announced in October 2006 that it had Sudan and outside, on the role of the Ghazal and the killings and forced plans to disarm the Janjaweed within two government of Sudan in the recruitment, relocations of the Nuba were carried out, months, although it was not specified how deployment and maintenance of the in a way that the government could pretend the government intended to accomplish Janjaweed militia. While the government was not at its direct behest. On every this. continues to keep mute or at best present a occasion, however, it subsequently became cloaked official position, confessions by clear that military officers were involved A November 2006 report from the several serving and past state officials, as in supplying militias and directing their Christian Science Monitor on the presence well as evidence from intercepted activities. The involvement of the air force, of the Janjaweed in the town of Tine says classified official documents, tends to whose raids must be directly authorised by that: reveal that the Janjaweed militia are indeed the chief of staff’s office in Khartoum, is an ad hoc unit of Sudan’s army. Outside evidence for high level involvement.” “Under a peace agreement signed last Sudan, several concerned individuals and May, Sudan’s was supposed to disarm the organisations such as the UN Secretary- Membership of the Janjaweed Janjaweed and inform the AU commanders General, Mr Kofi Annan, US Secretary of Questions such as how many Janjaweed of any troop movements. They have done State, Mr Colin Powell, and UK Secretary members there are and which tribes they neither. In fact, the arrival of the fighters in for International Development, Mr Hillary are recruited from are answered in a HRW this border town is fresh evidence that the Benn; UN High Commission for Refugees, report which says: government is remobilizing the Janjaweed Amnesty International, Human Rights and other irregular Arab militias in large Watch, and so on have blamed the “The Sudanese government is reported to numbers” government of Sudan for complicity with have recruited 20,000 Janjaweed militia the Janjaweed militia.” members. Most are believed to be from On 27 November, a report from the BBC Arab camel-herding tribes from North quoted Minni Minnawi, a former rebel Usman Tar also says that: Darfur and Chad. The tribes and clans leader who is now a special adviser to most frequently mentioned by refugees and President Omar al-Bashir, as saying that: “Within Sudan, experiential testimonies of other credible sources are the Irayqat and threats and utterances of Janjaweed militia Ouled Zed subclans of the camel herding “They know, everybody knows that the on their victims as well as confessions northern Rizeigat, the Mahariya, and the government is re-arming the Janjaweed, made by key state functionaries validate Beni Hussein. Many of the militia that the Janjaweed are activated even more the concerns held by the international members are believed to be Chadian in than before somehow.” community: that there has been a citizenship and while some have been deliberate and well planned decision by the attracted to the Janjaweed by the government to involve and support increasing ethnic polarization in the

THE RESEARCHER PAGE 21

Refugee Documentation Centre EU law Books: a Wealth of Background The library has a good collection of core European law textbooks as well as books Reading and Analysis relating to the European dimension of refugee and human rights law.

Immigration and refugee law A large collection of books and handbooks relating to a variety of jurisdictions are available. These include books by Hathaway, Goodwin-Gill and Symes.

Human rights law The library has a varied collection on human rights. Butterworths Human Rights

By Isabel Duggan, Cases are held.

Librarian of RDC and LAB Libraries Sociology

In the previous edition of The Researcher, Sociological themes such as race, identity we provided a brief introduction to the and citizenship are well represented in the resources available in the RDC library. In collection.

this edition, I am going to concentrate on Religion the most visible resource, the books! Comprehensive guides to all main

The vast majority of research work religions are held as well as short undertaken by the RDC is via online introductions to Islam, Buddhism, Judaism resources on, for example, subscription and Hinduism.

databases such as Lexis Nexis or reputable Who can the RDC lend material to? portals such as www.ecoi.net. However, The RDC lends material to staff of the the RDC also has a growing number of Refugee Legal Service and Legal Aid books on a range of topics relevant to COI Board, Office of the Refugee Applications research. A catalogue of the RDC books is Commissioner, Refugee Appeals Tribunal, available for all users of the RDC COI Ministerial Decision Unit and other service. The RDC also has a lending agencies of the Department of Justice, section. Please see below for further Equality and Law Reform. Solicitors and details. Barristers on the RLS panel may also

The RDC book collection borrow material. Members of the public may not borrow material. Reference The reference section has a large number Registering as a library member of travel guides from countries as diverse You may register as a library member by as Ethiopia, Azerbaijan and Cuba. contacting the library staff. The generic Dictionaries and language guides to lesser email for registering is

known languages are available. Other Refugee_Documentation_Centre@legalaid reference resources include the Europa board.ie World Yearbook, the Times Atlas of the World, Regional Surveys of the World, Accessing the RDC catalogue encyclopaedias of world cultures and You may access the RDC library political dictionaries. management system in either of the two following ways: Country information Click on the link for RDC library system Books in this section are classified on Lotus Notes or the web address for the according to country. They cover topics RDC LMS is http://lib.lab.ie such as history, politics, sociology, (IP address http://15.199.2.11) and log in. ethnicity, religious beliefs and culture. Sample titles are as follows: The opening hours of the RDC library The opening hours of the RDC library are Alexander, Jocelyn: The Unsettled Land – from 10.00am to 12.30pm and 14.00pm to State-making & the Politics of Land in 17.00pm. It may be possible to Zimbabwe 1893-2003. Oxford, 2006. accommodate visitors prior to 10am and Gardner, Judith: Somalia, the Untold between 13.00pm and 14.00pm if you Story. The War Through the Eyes of contact us in advance. Somali Women. Pluto press, 2004. Contacting the Refugee Documentation McCarthy, Rory: Nobody Told Us We Are Centre Defeated – Stories from the New Iraq. You may contact the RDC in the following

Chatto & Windus, 2006. ways: Tel: 01 477 6250 Fax: 01 661 3113 Moorehead, Caroline: Human Cargo – A Email:

Journey Among Refugees. Vintage, 2006. Refugee_Documentation_Centre@legalaid Irish law board.ie.You may also email in a query

The library has a small collection of core form as you would for a COI query. Irish law books.

PAGE 22 THE RESEARCHER

How long may I keep a borrowed item? The Situation of Christians in “According to official estimates, the You may borrow 3 items may for a one Iraq number of Christians decreased from 1.4 month period. This is renewable if the million in 1987 to fewer than 1 million, items are not required by another with Catholics (Chaldeans) comprising the borrower. majority. Christian leaders estimated that approximately 700,000 Iraqi Christians Contact us to avail of the treasure trove of lived abroad5.” COI and legal material which is the RDC library! IRIN gave one reason for the exodus in the 1990’s:

“The last Iraqi census, in 1987, counted Refugee Appeals Tribunal Paul Daly, RDC 1.4 million Christians, but many left during the 1990s when economic sanctions Decisions Now Searchable by 6 The situation in Iraq at present is one of were imposed on the country .” New Unit in RDC civil war, according to outgoing UN Secretary General Kofi Annan in a BBC By contrast, the International Religious The Legal Aid Board has established a 1 interview broadcast on 4 December . The Freedom Report quoted the Christian and Decision Search Unit (DSU) managed by Iraq Study Group stated on 6 December Other Religions Endowment as reporting a the Refugee Documentation Centre (RDC) that “the situation is grave and very different reason for the recent mass to undertake searches of the Refugee deteriorating. …[i]f the situation continues departure: Appeals Tribunal decisions database for to deteriorate, the consequences could be RLS solicitors and for Private Practitioner severe. A slide toward chaos could trigger “[A]fter a series of church bombings and solicitors and Barristers on the RLS panels. the collapse of Iraq's government and a incidents of violence targeting Christians The DSU service is also available to other 2 humanitarian catastrophe... ” Much of the over the past two years, more than 200,000 agencies in the asylum process in common coverage has focussed on the sectarian non-Muslims left the country or fled to the with other RDC services. violence between Shia and Sunni Muslims. North. Many remained in Jordan or Syria awaiting improvement in the security Requestors should identify the keywords In this article Paul Daly looks at the 7 situation of Christians in Iraq. situation .” and issue(s) of legal principle involved and forward a request in writing to the Over half the Christians in Iraq have left in Religious Demography Decision Search Unit in the RDC – using the last three years. The US Library of According to the CIA Factbook, religions the query form (electronic or hard copy Congress stated in August 2006: in Iraq are made up as follows: version available). On receipt of a request the DSU will conduct a search and request “Muslim 97% (Shi'a 60%-65%, Sunni “It was estimated that there were 700,000 8 the identified relevant redacted decisions to 800,000 Christians in Iraq in 2003 32%-37%), Christian or other 3% ” which will be sent to the requestor as soon mostly belonging to the Chadean Catholic as they are received. The International Religious Freedom Church. However, up to 2004 Report gave a breakdown of these figures: approximately 500,000 left Iraq following Requests for specific decisions identified the acceleration in targeted attacks against by “TRC” or “69/” number can be made “The country has an area of 437,072 Christians. A further 40,000 left Iraq in directly to the Tribunal without going square miles and a population of 26 2004 after a series of bombings targeting million. An estimated 97 percent of the through the search process. DSU will 3 Christians .” population is Muslim. Shi'a Muslims-- process such requests if required. Copies of any redacted decisions received from predominantly Arab, but also including The Guardian reported on 6 October 2006: Turkmen, Faili Kurds, and other groups-- such direct requests should be copied to the DSU. It is expected that the DSU will “[A]lthough Christians made up less than constitute a 60 to 65 percent majority. operate at full capacity by mid December four per cent of the population - fewer than Sunni Muslims make up 32 to 37 percent 2006. one million people - they formed the of the population, of whom approximately largest groups of new refugees arriving in 18 to 20 percent are Sunni Kurds, 12 to 16 Queries for the Decision Search Unit Jordan's capital Amman in the first quarter percent Sunni Arabs, and the remainder should be sent to: of 2006, according to an unpublished Sunni Turkmen. The remaining 3 percent report by the UN High Commission for comprises Chaldean (an eastern rite of the Decision Search Unit Refugees (UNHCR). In Syria, which has a Catholic Church), Assyrian (Church of the Refugee Documentation Centre longer border with Iraq, 44% of Iraqi East), Syriac (Eastern Orthodox), Montague Court asylum-seekers were recorded as Christian Armenian (Roman Catholic and Eastern 7/11 Montague Street since UNHCR began registrations in Orthodox), and Protestant Christians, as Dublin 2 December 2003, with new registrations well as Yazidi, Sabean, Baha'i, Kaka'i (a hitting a high early this year. Fleeing small, syncretic religious group located in Phone: 01-4776250 – ask for Decision killings, kidnappings and death threats, and around Kirkuk), and a small number of Search Unit they come from Baghdad, from Basra in Jewish believers. Shi'a, although Fax: 01 6613113 the zone of British control and, predominantly located in the south, were Email: [email protected] disproportionately, from Mosul in the also a majority in Baghdad and had

north. The Catholic bishop of Baghdad, communities in most parts of the country. Sunnis formed the majority in the center Andreos Abouna, was quoted recently as 9 saying that half of all Iraqi Christians have and the north of the country. ”

fled the country since the 2003 US-led 4 Distinguishing the different Christians, the invasion .” report went on to state:

The decline in the number of Christians in “There were approximately 225,000 Iraq is not a recent phenomenon. The US Assyrian Christians and an estimated Department of State International 750,000 Chaldeans (Eastern Rite Religious Freedom Report 2006 stated: Catholics). The Chaldean and Assyrian Christians are descendants of the earliest

THE RESEARCHER PAGE 23

Christian communities, and they share a the teachings of the Koran and persons control over entire neighbourhoods in similar cultural and linguistic background. refusing to convert to Islam) 14.” various cities and villages in Iraq. There Both communities speak the same ancient are reports from almost all parts of the language (Syriac); however, they are Apart from religious reasons, the country about assaults and attacks against considered by many to be distinct ethnic Guidelines gave a variety of other causes Christian individuals and facilities. For groups. Chaldeans recognize the primacy for the violence: example, on 1 August 2004, nearly of the Roman Catholic Pope, while the simultaneous attacks on five Christian “Others have been attacked because of a Assyrians, who are not Catholic, do not. churches in Baghdad and Mosul killed at widespread belief among the insurgents While some Chaldeans and Assyrians least 15 persons. In the course of another that Christians assisted and supported the considered themselves Arab, the majority, devastating series of attacks on six US invasion of Iraq and continue to as well as the Government, considered Christian churches in Baghdad on 16 support the presence of the MNF, as the both groups as ethnically distinct from October 2004, at least one person was 10 MNF is composed of mainly Western Arabs and Kurds. ” killed and nine persons were injured. On 8 Christian ‘infidel’ nations…Others have November 2004, car bombs exploded in been targeted for kidnapping against In October 2005 Guidelines UNHCR front of the St. George and the St. Matthias ransom based on the perception that described Iraq’s Christian population as church in Baghdad, killing at least three Christians are generally more wealthy than follows: people and wounding dozens of others. others. Resentment towards Christians Further attacks on Christian churches in “Iraq’s Christian population includes, appears to be particularly vehement in the Baghdad caused substantial property among others, members of the Assyrian, South and in the so-called Sunni triangle, damage. On 7 December 2004, a series of Chaldean, Armenian and Catholic sects. where rising extremist attitudes are attacks on Armenian and Chaldean Many Assyrian Christians originate from fuelling the trend towards a stricter churches in Mosul caused substantial the Governorate of Ninewa, whose capital interpretation of Islam15.” damage to property. In January 2005, the Mosul is the second largest city in Iraq. head of the Christian Democratic Party in Other Assyrians, including some members The situation of women is noted in the Iraq, Minas Al-Yousifi, as well as the of the Assyrian Democratic Party or Guidelines: Syrian Catholic archbishop of Mosul, sympathizers thereof, originate from “Muslim and even Christian women are Basile Georges Casmoussa, were Baghdad and its surroundings. Many of increasingly being encouraged and kidnapped. In February 2005, a Christian Iraq’s other Christians originate from 11 pressured to wear veils. Many Christian nurse was beheaded by her kidnappers and Basrah .” on 18 March 2005, Ansar Al-Sunna, which women have taken to wearing a veil The Situation of Christians in Iraq simply to avoid drawing attention to mainly operates in Northern Iraq, UNHCR stated in October 2005: themselves. In the aftermath of the war, announced the killing of a Christian certain Islamic groups have also taken general of the Iraqi Army on its internet “Most Iraqi Christians claim fear of positions at universities, hospitals and website. In all parts of Iraq, Christian persecution from insurgent groups (e. g. other institutions and ordered women to women face increasing pressure by Ansar Al-Sunna) and Islamic militias such cover their heads and put on a scarf at all extremist groups to adhere to strict Islamic as the Badr Organization or the Mehdi times, often threatening those who dare to dress codes and to cover their hair with a Army, which have substantial control of show themselves in public places without a veil. In spring 2005, some 1,500 female the streets in various major cities and hijab 16 ” students left Mosul University in order to towns12.” avoid constant threats directed against In relation to RSD the Guidelines noted: them, including through leaflet campaigns. The UNHCR Guidelines distinguish the On various occasions, Christian-owned situation of Christians from that faced by “While discriminatory acts against shops selling alcohol, CDs or videos have Iraqis in general: Christians do not always amount to become the target of bomb attacks or persecution per se, the results of combined looting. For example, on 28 September “While much of the hardship and and continuous discriminatory measures 2004, four Christian-owned shops were harassment they report that they face is must be assessed carefully in each case completely destroyed in a series of arson symptomatic of the situation of general since they could amount to persecution on attacks in the Iraqi town of Bald. Due to insecurity faced by all Iraqis in present-day cumulative grounds. Particular the previously described inefficiency of the Iraq, members of the Christian minority consideration should be given to those ISF [Iraqi Security Forces] and the nevertheless appear to be particularly cases where discrimination creates religious component inherent to the targeted. Iraqi Christians feel especially unreasonable obstacles, makes it assaults, most such incidents are not apprehensive about the overwhelming impossible to earn a livelihood or enjoy reported to the authorities. The victims presence of extremist Islamic groups and socio-economic rights, or has created a frequently keep a low profile in order to armed militias, whose display of climate of fear, insecurity or apprehension 17 not attract further attention. Finally, they intolerance towards non-Muslim has for the individual concerned .” may decide to leave their place of 13 become a nearly daily feature in Iraq .” residence in order to avoid further threats. UNHCR published a Background Consequently, it is assumed that a high The UNHCR Guidelines details reported Information paper on Iraq also in October number of incidents go unreported. acts of violence to Christians: 2005. This paper described the situation of Attacks, assaults and discrimination are “Acts of violence reported by Christians non-Muslim communities in Iraq: often motivated by a variety of factors and/or which appear to target Christians which may have to be considered include bombings and other attacks on “Christians are seriously affected by the alternatively or cumulatively. 18 ” churches, the forcible closure of Christian- dramatic deterioration of the situation of non-Muslim communities. They owned liquor shops by armed militias, In relation to state protection the same increasingly experience discrimination serious or fatal attacks on shop owners document stated: and/or business persons involved in trading with regard to access to the labour market and selling alcohol, harassment, extortion, or basic social services. Many Iraqi “The Iraqi Security Forces (ISF) are kidnapping and even torture of persons Christians are particularly afraid of currently not capable of effectively perceived as not respecting Islam (e.g. persecution by insurgent groups such as maintaining law and order. In addition, the women who appear in public without a Ansar Al-Sunna as well as Islamic militias lack of a functioning judiciary often leaves hijab, persons accused of not respecting such as the Badr Organisation or the victims of assault, maltreatment, Mehdi-Army, which have gained de facto expropriation and other attacks without

PAGE 24 THE RESEARCHER legal protection and redress, including http://www.irinnews.org/report.asp?ReportID=5 Nearly 1,500 Somalis and Ethiopians members of religious minorities. 6005&SelectRegion=Middle_East&SelectCount arrived in 12 smugglers' boats between 16 ry=IRAQ Increasingly, Iraqis are resorting to extra- 7 and 24 November of this year, according judicial conflict resolution and protection US Department of State International Religious to UNHCR spokesperson, Ron Redmond5. Freedom Report 2006 mechanisms such as tribal law. Members At least 18 people aboard those boats died http://www.state.gov/g/drl/rls/irf/2006/71422.ht 6 of religious minorities often do not have m and 17 are missing, he said . The boats access to such traditional mechanisms, as 8 CIA World Factbook from Somalia usually land along a remote, they do not necessarily belonging to a https://www.cia.gov/cia/publications/factbook/g 300-km stretch of tribal-ruled coastline tribal grouping19.” eos/iz.html according to Mr Redmond7. The refugee 9 US Department of State International Religious agency have only limited access to the Conclusion Freedom Report 2006 often insecure coast but they were able to The situation of Christians in Iraq, as that http://www.state.gov/g/drl/rls/irf/2006/71422.ht transport 853 Somalis and Ethiopians to m of the country as a whole, is in the words 10 their May'fa reception centre in the eight of the Iraq Study Group “grave and US Department of State International Religious Freedom Report 2006 day period in November, providing them deteriorating”. Whether, as that report http://www.state.gov/g/drl/rls/irf/2006/71422.ht with food, water, medical care and other hopes, a political solution can be found by m assistance8. the diplomatic engagement of Iran and 11 UNHCR - Guidelines Relating to the Syria and international consensus remains Eligibility of Iraqi Asylum-Seekers October Most of the new arrivals told the UNHCR to be seen. In the meantime, our hearts and 2005 teams that they were from southern and prayers must go out to the people of Iraq of http://www.unhcr.org/cgi- central Somalia, where they claim their whatever faith or none. The recent IRIN bin/texis/vtx/home/opendoc.pdf?tbl=RSDLEGA freedom has been significantly curtailed story of Julie Carla expresses life for many L&id=4354e3594 since the region came under the control 12 Ibid 13 Ibid 13Ibid 14Ibid 15Ibid 16Ibid 17Ibid in Iraq: 18UNHCR - Background Information on the earlier this year of the Islamic Courts 9 Situation of Non-Muslim Religious Minorities Union (ICU), according to Ron Redmond . “Julie Carlo, 36, has tried to leave Iraq for in Iraq (October 2005) The arrivals also cite an increase in inter- Jordan several times to be with her parents, http://www.unhcr.org/cgi- tribal and inter-clan conflict and say they but hasn't been allowed in by the Jordanian bin/texis/vtx/rsd/rsddocview.pdf?tbl=RSDLEG fear for their lives10. authorities. The reason for her desperation AL&id=4371cf5b4 to leave is her religion. She is Christian 19 Ibid 20 UNHCR have been working with the and has been threatened by Islamic IRIN – ‘Iraq: Christians live in fear of death authorities in Puntland, in north-eastern militants. squads’ http://www.irinnews.org/report.asp?ReportID=5 Somalia, on ways to tell people about the dangers of using smugglers to cross the ‘Recently, life for Christians in Iraq has 6005&SelectRegion=Middle_East&SelectCount Gulf of Aden. This includes the making of turned into a horror movie,’ Carlo said. ‘I ry=IRAQ videos and radio programmes to raise will leave everything here [and] even if I awareness among Somalis and Ethiopians do not have anything to eat there [Jordan], 11 of the risks involved in such crossings. it is better to die from hunger than be beheaded’. UNHCR: 22,000 Cross Gulf of 1 UNHCR Briefing Note (24 November

Aden in Smugglers’ Boats 2006) …In the meantime, Christians who can not http://www.unhcr.org/news/NEWS/4566d leave Iraq make do the best they can. by Paul Daly, RDC Christian parents have stopped their 1594.html 2 Ibid children from attending schools and 3 universities after many fellow students UNHCR -International help needed to halt made verbal threats against Christian deadly people-smuggling across Gulf of students. Aden http://www.unhcr.org/cgi- Christian women have started to wear bin/texis/vtx/photos?set=aden ‘Abayas’ (the traditional full-length cloak 4Ibid that Muslim women wear) and head 5 UNHCR Briefing Note (24 November scarves to prevent them from being 2006) http://www.unhcr.org/news/NEWS/4566d distinguished from Muslim women. 1594.html A young mother waits for a boat with ‘We now are being forced to be Christians 6Ibid 7Ibid 8Ibid 9Ibid10Ibid her two children. Her husband and two just in our heart because externally we 11 UNHCR (See note 3 above) other children are waiting for them in should be like Muslims, even though we don’t have anything to do with the Saudi Arabia. / UNHCR / K. McKinsey / 20 February 2006 sectarian violence’ Carlo said. ” The Researcher is published

quarterly by: 1 More than 22,000 people have crossed the BBC News Refugee Documentation Centre, Gulf of Aden from Somalia to Yemen this http://www.bbc.co.uk/pressoffice/pressreleaes/st Montague Court, year in smugglers' boats, according to ories/2006/12_december/03/kofi_annan.shtml 7-11 Montague Street, 2 UNHCR1. The refugee agency state that at BBC News Dublin 2 http://news.bbc.co.uk/2/hi/middle_east/6212918 least 355 died making the perilous voyage .stm and more than 150 are missing2. UNHCR Phone: + 353 (0) 1 4776250 3 Library of Congress – Federal Research Fax: + 353 (0) 1 6613113 say that the deaths are frequently the result Division Country Profile: Iraq, August 2006 of overcrowded boats capsizing or http://lcweb2.loc.gov/frd/cs/profiles/Iraq.pdf Also available on the Legal Aid Board 4 breaking down and going adrift without website www.legalaidboard.ie The Guardian ‘'In 20 years, there will be no 3 more Christians in Iraq' 6 October 2006 food or water . Those who survive the 5 US Department of State International Religious voyage to Yemen often give brutal Editors: Freedom Report 2006 accounts of smugglers beating passengers Seamus Keating http://www.state.gov/g/drl/rls/irf/2006/71422.ht or forcing them overboard while still far [email protected] m off shore -- in some instances with their 6 Paul Daly [email protected] IRIN (19 Oct 2006) IRAQ: Christians live in hands and feet bound.4” fear of death squads