Anisimova: The Legal Basis for Return to a Third Country in Irish Law
| Author | Cassandra Byrne |
| Position | Junior Sophister Law student, Trinity College Dublin |
| Pages | 87-103 |
1998]
Anisimova:
Legal
Basis
for
Return
to
a
Third
Country
87
ANISIMO
VA:
THE
LEGAL
BASIS
FOR
RETURN
TO
A
THIRD COUNTRY
IN
IRISH
LAW
CASSANDRA
BYRNE*
Introduction
The
politics
of
human
rights
protection
is
a
dangerous
politics
of
freedom. Those
who are
most vociferous
in
their
support
for
human
rights
and
freedom
of
expression
are
often
the
first
to
be
silenced
or
forced
into
flight. The
determination
of
the
refugee
status
process
not
only
provides
the
mechanism
by
which
an
individual
is
protected
from
further
persecution,
but
acknowledges
the
nature
of
the
refugee's
experience.
It
sends a
clear
message
to
the
perpetrators
in
the
country
of
origin.'
2
The
Supreme Court
decision
in
Anisimova
v.
Minister
for
Justice
raises
the
question
of
what
message this country
is
giving by
its
treatment
of
asylum
seekers
and
refugees when
they
come
before our
courts.
Constant
changing
of
administrative
procedures
in
the
Department
of
Justice
has
resulted
in
confusion
on
the
part
of
practitioners
and
the
courts
as
to
the
exact
nature
of
the law
in
Ireland
on
this issue.
It
is
submitted
that
such
confusion
has
led to
a
Supreme
Court decision
which
has
harsh
consequences
for
asylum
seekers and
runs contrary
to
Ireland's
international
law
obligations.
This
article argues
that
the
use
of
the "safe
third
country"
rule
by
European
States, given
force
in
Ireland
by
the
Supreme
Court's
acceptance
of
it
in
Anisimova,
allows
Ireland
to
evade
its
responsibilty
to
examine
asylum
claims,
thus
violating
the
international
principle
of
non-refoulement.
The
issue
will be
looked
at
from several legal
Junior
Sophister
Law
student,
Trinity
College
Dublin
Clancy,
"Fortress
Europe
and
the
Irish
Refugee
Bill"
in
Focus,
Issue
54,
Spring
1996.
2
Unreported,
Supreme
Court,
28
November
1997.
Trinity
College
Law
Review
perspectives: firstly
by
defining
the
refugee
in
international
and
national
law terms;
secondly,
by
looking
at
the
various
procedures
involved
in
the
appeal
of
the
refusal
of
refugee status
by
the
Minister
for Justice;
and
finally
by
examining
the
legal
backdrop
to
Anisimova,
the
current leading
case
in
the
area
of
refugee
and
asylum
law.
It
is
hoped
to
comprehensively describe
the
position
of
the
refugee
or
asylum
seeker
under
Irish
law.
The
Definition
of
a
Refugee
Article
1A(2)
of
the
Geneva
Convention
on the
Status
of
Refugees
1951
provides that
the
term
"refugee"
shall
apply
to
any
person
who
can
establish
a
"well-founded fear
of
being
persecuted
for
reasons
of
race,
religion,
nationality,
membership
of
a
particular
social group
or
political opinion,
is
outside
the
country
of
his
nationality
and
is
unable or, owing
to
such fear,
is
unwilling
to
avail
himself
of
the
protection
of
that
country;
or
who,
not having
a
nationality
and being
outside
the country
of
his
former
habitual
residence
as
a
result
of
such
events,
is
unable
or,
owing
to
such
fear,
is
unwilling
to
return
to
it".
3
The
Convention
formulates
certain
minimum
standards
which
must
be met
by
contracting
states
when
dealing
with
asylum-seekers,
and
contains
"a
blueprint
for
refugee
rights
which
has been
widely
accepted
and,
morever,
has
proved
a
starting
point
for
supplemental
efforts
at
regional
and
muicipal
level". 4
The
Convention
also
clearly
establishes
the
doctrine
of
non-
refoulement,
5
which lies
at
the
heart
of
refugee
protection.
Under
this
doctrine
no
person
may
be
returned against
his
will
to
a
territory
where
"life
or
freedom
would
be
threatened on account
of
his
race,
religion,
nationality, membership
of
a
particular
social group
or
political
opinion".
See s.2
of
the
Refugee
Act
1996 for
the
definition
of
a
refugee.
See
also
Handbook
on
Procedures
and
Criteria
for
Determining
Refugee
Status,
published
by
the Office
of
the
United Nations
High
Commissioner
for
Refugees, Geneva
(1992).
4
Heffeman,
"In
search
of
a
Human Rights
approach
to
Refugees"
in
Whelan
(ed.),
Law
and
Liberty
in
Ireland
(1993),
at
p.18
6.
5
This
is
expressed
in
Article
33
of
the
Geneva
Convention
and incorporated
in
s.5
of
the
1996.
[Vol.
I
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