ieExplains: Asylum seekers and the Northern Ireland border
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The Government has approved the drafting of emergency legislation aimed at closing a legal gap that means asylum seekers cannot be sent back to Britain if they cross the border with the North.
The necessity for the law was brought about by a High Court ruling in March, but intense spotlight was thrown on it after comments by politicians on both sides of the Irish Sea last week.
Last week at the Oireachtas justice committee, Justice Minister Helen McEntee said that more than 80% of asylum applicants come to Ireland over the border and that a previous agreement on returns was not being used due to a High Court ruling.
Tánaiste Micheál Martin then said that he believed this was an outworking of Britain's proposal to send asylum seekers to Rwanda.
"I believe the Rwanda effect is impacting in Ireland, I think that's been growing since the first iteration and publication of that strategy around Rwanda," he said.
This was seized upon by the British government who said that it was proof the Rwanda policy was working.
Last month, the High Court ruled that Ireland’s designation of Britian as a “safe third country” to which asylum seekers can be returned for processing is unlawful as a matter of EU law.
This is due to a finding that the justice minister exceeded her powers by designating Britain a safe third country in December 2020, in response to Brexit.
The Government will appeal this decision as it believes that interpretation is based on an EU directive into which Ireland is not opted.
Ms Justice Siobhán Phelan said the breach arises from a gap between safeguard requirements prescribed in the International Protection Act of 2015 and those mandated by the Dublin III Regulations.
This meant that any returns of asylum seekers who have status in Britain but have come to Ireland seeking protection had to be paused.
Ms McEntee has secured Cabinet approval for legislative proposals that will amend the International Protection Act 2015, enabling Ireland to resume the returns to Britain, even though the arrangement agreed in late 2020 has never actually been used.
The High Court found that the statutory scheme used to designate a safe third country under section 72A of the International Protection Act 2015 is legally flawed as it fails to require the minister to be satisfied that a person would not be subjected to serious harm when returned to that country.
Under the plans agreed on Tuesday, the act will be amended to insert provision for consideration of serious harm to take place under section 21, section 50A and section 72A.
It will also allow for family and private life rights to be considered in the context of issuing a return order under section 50A.
British prime minister Rishi Sunak said he is "not interested" in a deal to take back refugees "when the EU doesn't accept returns back to France where illegal migrants are coming from".
On Tuesday, a spokesperson for 10 Downing St said that any agreement between Ireland and Britain only exists informally and that it will decide who to accept.
The spokesperson said that there is “operational arrangements” between Britain and Ireland but “not a legal obligation to accept the return of asylum seekers and under those operational arrangements no asylum seekers have been returned to the UK".
Mr Sunak is currently facing a series of local elections and some in Government here anticipate that temperatures will drop in the coming weeks.
Amid the diplomatic spat, senior government sources in Dublin say that they are sanguine about the state of relations.
However, the issue the Government faces is whether Britain is willing to restart returns and if the law has any effect.