Beyond Trafficking and Slavery

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

Research from Nasc sheds light on the treatment of those refused ‘leave to land’ at Irish borders and individuals held in detention for immigration-related purposes.

Emily Cunniffe
26 April 2018

stephane333/flickr. (CC BY-SA 2.0)

On 18 July 2017, Paloma Aparezida Silva-Carvalho, a 24-year-old Brazilian woman, was detained at Dublin Airport. Paloma was entering Ireland to visit the Muller-Wieland family in Galway, for whom she had worked as an au pair the year before. However, despite evidence of her return flight and providing the contact details of the Muller-Wieland family, she was accused by immigration officers of entering Ireland to work without a valid permission. She was subsequently denied entry to Ireland (‘refused leave to land’) and detained in Dublin’s Mountjoy Prison in the Dóchas Centre. 

Paloma spent the night in prison. However, following significant media attention and political pressure garnered by the Muller-Wieland family and their community, she was released and granted 10 days to stay in the country in a discretionary decision by the Minister of Justice and Equality. 

The ensuing public outrage and shock at Paloma’s treatment demonstrated how little is known and discussed about immigrant detention and refusals of leave to land in Ireland. Yet, Paloma’s experience is far from exceptional, with over 28,000 individuals refused leave to land between 2008 and 2016. Of that figure, Brazilian is the nationality most frequently refused entry, despite the fact that people from Brazil do not require a visa to enter Ireland. 

In comparison to many countries in Europe, the number of individuals detained for immigration-related purposes in Ireland is relatively low. Yet, Ireland is one of the few countries in Europe that continues to use prisons as designated spaces for immigration-related detention. That is, for individuals who have neither been accused or convicted of a crime in the state.

Ireland has faced continuous international criticism for its practice of immigration detention, most notably from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). But despite this criticism, Ireland continues the practice of placing individuals detained for immigration-related purposes in criminal facilities.

In February 2018, Nasc, the Migrant and Refugee Rights Centre based in Cork, released the ‘Immigration Detention & Border Control in Ireland: Revisiting Irish Law, Policy and Practice’ report, which takes as its starting point Mark Kelly’s seminal research on the area of immigration-related detention in Ireland, first published in 2005. The 2018 report is based on over two years of research, which included interviews with migrants and asylum seekers detained due to refusals of leave to land, as well as those detained as protection applicants and pending deportation. Throughout this research it became clear that little has changed in the area since 2005, and there continues to be a lack of safeguards and transparency in border control practices and immigration-related detention in Ireland.

Border controls: a two-tiered, discretionary system

The system of border control in Ireland today developed in an ad hoc manner and relies significantly on the discretionary decisions made by immigration officials on duty. In our report, we examined what happens after an individual is refused leave to land by the on-duty immigration officer and the safeguards in place for those individuals following their refusal and subsequent detention. These safeguards are based on those employed in Kelly’s 2005 report, key international human rights legislation, EU legislation, and principally, CPT recommendations.

The key safeguards examined include: (1) the right to not be held incommunicado; (2) access to legal representation; (3) access to medical attention; (4) access to information on the reasons for detention and an explanation of one’s rights once in detention; and, (5) access to a right of appeal.

With the above five safeguards as points of analysis, the report demonstrates how very few of these safeguards and protections are granted in law under the Immigration Acts (2003; 2004) to assure the rights of those refused leave to land at ports of entry. Strikingly, it is only when an individual is admitted to a prison that some of these key safeguards are met. 

It is only when an individual is admitted to a prison that some of these key safeguards are met.

Eight individuals who had been refused leave to land at Dublin Airport and were being detained at Cloverhill Prison in Dublin were interviewed for this report between 2015–2017. On the whole, these individuals reported that the majority of the above five safeguards were not met at Dublin Airport when they were denied entry.

Although all eight individuals interviewed knew the reasons for the refusal of leave to land, five of the eight did not understand why these reasons applied to them. In addition, a number expressed difficulty in understanding the refusal due to a language barrier, with, in some cases, no interpretation being offered to those refused and in other cases, the wrong language for interpretation being used.

Of particular concern is the lack of access to justice and to communicate with a third party once an individual has been refused leave to land. Of the eight interviewed, six expressed frustration with the confiscation of their phones and their subsequent inability to contact a third party of their choice.

A further area of concern is the lack of access to justice once an individual has been denied entry. In Ireland, the venue for an appeal of a decision of refusal of entry is the High Court, where cases typically take a number of years to be heard. Thus, reviews are highly unlikely to take place and result in a grave financial and temporal burden – not only on the individual but also on the state and its resources. Of the eight individuals interviewed who were refused leave to land, only one individual was pursuing legal action.

With very few High Court proceedings pursued following a refusal of leave to land, there is not only a concerning lack of recourse for individuals refused entry but also a resultant lack of accountability for the wide powers of discretion available to and exercised by immigration officers. There is an urgent need for the establishment of clear right of appeal against a decision to refuse leave to land.

Given the absence of legal safeguards and basic rights, such as access to a lawyer; medical treatment; or a lack of a real and substantial review of a decision, the people detained in the airport, especially those held for protracted periods of time, are effectively detained in a no man’s land and in a setting that sits outside the law.

Verifying information at the border

In the context of Nasc’s research, it was communicated to us by those we interviewed in the Department of Justice and Equality that every effort is made by border control officials to verify information supplied to them by people seeking to enter the country.

Nonetheless, many of those interviewed for this research reported that not every effort was made by the acting immigration officer to verify their information, nor was all information taken into account before a final decision was made. Two Hong Kong nationals refused leave to land who were travelling to Ireland to attend an English course were deemed to have insufficient funds. They felt that the immigration officer did not take all information into account:

“They didn’t allow us to prove we had some funds. I told them we had money in Hong Kong. I can’t give the certificate now, because it is in China. How do you know I don’t have enough funds, if you don’t give me a chance to show you, if you don’t give me time?”

Further to this, border controls in Ireland currently operate on a two-tiered system wherein Dublin Airport has recently civilianised their border control management with civil servants from the Irish Naturalisation and Immigration Service, while all other ports of entry continue to be operated by the Garda National Immigration Bureau (a wing of the Irish police force). With different training and institutional structures, we would be concerned with regard to the consistency of decisions made at ports of entry.

An area of particular concern in verifying information is access to the asylum system. In law, any individual who presents at the border has the right to seek asylum in the state. However, our research found that not all claims for asylum are being heard at the port of entry, with a concerning number of individuals from regions of conflict or humanitarian concern being refused leave to land or ending up in prison before their case for asylum can be submitted. Of the previously mentioned figure of 28,000 individuals refused entry between 2008 and 2016, over 2000 of these individuals were from areas of conflict and/or of humanitarian concern. 

One detainee interviewed while in Cloverhill Prison wished to seek asylum in Ireland. He travelled from Sudan on an Eastern European passport and was refused leave to land on the basis that it was not a valid passport. He felt that the immigration officers were not receptive to his side of the story: “I said, ‘I want to seek asylum.’ They said no, because of the passport. They didn’t want to listen. They said ‘Yes, yes sit down there.’ I answered things, but they didn’t listen. They didn’t want to know about my situation, my country.”

Immigration officers need to be sufficiently trained to recognise individuals who may be interested in applying for asylum, including in situations in which the language may not be explicitly used. An inability to recognise applicants for asylum and subsequently refusing them leave to land, would mean Ireland is in violation of a key tenet of the 1951 Geneva Convention for Refugees and the subsequent protocol of non-refoulement. 

Places of detention: prisons and garda stations

In his 2005 report, Mark Kelly criticised that Ireland’s only spaces of detention were Garda stations and prisons. Thirteen years on, the spaces of detention for immigration-related purposes remain the same in Ireland.

The report found that those being refused leave to land are unnecessarily being held in prisons and are not being returned on the next available flight back. In the case of a Somali man with refugee status in a Scandinavian country, there was no flight back that day. He was told he might be removed two days later. He offered to buy his own ticket back home but was informed that “that’s not how it works”. Another detainee, from Ukraine, flew on his Romanian passport (considered a fake by immigration authorities) from Bucharest and had a return flight booked for 10 days later. He stated, “It is my first time in prison. I am very frightened. There have been many flights every day. Why is it taking so long? For three days I am here.”

From the outset, it is important to recognise that there have been strong calls for prison reforms more broadly in Ireland, particularly with regard to overcrowding and high levels of criminality. Although beyond the scope of our report, we recognise and align ourselves with those broader calls for reform. 

"if you don’t speak English, they play with you.” 

In our research, those detained for immigration-related purposes reported their experiences of this overcrowding and levels of criminality. A Congolese man detained in Cloverhill for a total of 2 months reported that during his time in prison the rooms were overcrowded: he was the fourth individual in a room for three, and he explicitly stated that he stayed away from Irish prisoners as a “fight always broke out.” Another Somalian individual who was detained in Cloverhill Prison stated that he got hit on the back of his head in the prison pool room and that “if you don’t speak English, they play with you.”

One interviewee from Pakistan in Cloverhill Prison awaiting deportation stated that he began a job in catering in the prison kitchens, but he described the job as dangerous as “there were no cameras, it was easier to take you down. There were many knives. There were misunderstandings. Someone tried to bully me. I am a peaceful person. I don’t look for fights.” 

Prisons are inappropriate places of detention for individuals who have neither been accused or convicted of a crime in the state. Nonetheless, it is paradoxically in prisons where individuals detained for immigration-related purposes in theory have the most rights and protections in the whole immigration detention process.

The future of immigrant detention in Ireland

The Nasc report makes a number of key recommendations to the Irish government in the fields of border control and immigrant detention. We call for the granting of access to key safeguards from the outset of a refusal of leave to land and throughout the detention process, including the right to access medical attention, to not be held incommunicado and to access the asylum procedure, among others.

The report strongly advocates for the use of alternatives to detention, which are already legislated for in Irish law, and the need for greater transparency within border control and detention practices with the regular publication of relevant statistics and information.

Finally, Ireland has signed but not ratified the Optional Protocol on the Convention Against Torture (OPCAT), which addresses monitoring and transparency of detention and borders, and it is strongly recommended that this is ratified this as soon as possible.

With Ireland set to open its first immigration detention facility at Dublin Airport in 2018, and the tender for this construction announced earlier this week, our report urges the Irish government to ensure that this centre is not a criminal institution and is a space in which all legal safeguards and the material and psychological conditions recommended by the CPT are met.

To read the full report, please click here.

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