In November 2020, a judge in the High Court greenlit Bulelani Mfaco’s application to challenge his rejected request to remain in the country.
Judicial reviews are the last resort for asylum seekers whose claims and appeals for international protection – and petitions against deportation – have been refused.
“I’ve been waiting since then,” says Mfaco, who has at this stage spent five years in direct provision.
The court put Mfaco’s case on a holding list, where cases making similar legal arguments sit until a lead case gets a decision.
If the decision is favourable, it applies to all cases on the holding list. If it is unfavourable, every person on the list risks being served a deportation order without having their case heard by a judge.
That is to save the court’s time, says Siobhán Conlon, a human rights lawyer at Siobhán Conlon Solicitors. “So that the court doesn’t have to hear a hundred individual cases.”
Immigration lawyers say there are different lead cases with their own holding lists, frustrating their clients who have to live with uncertainty for long stretches, sometimes in direct provision centres.
A shortage of judges is a vital factor behind the delays that deny people a speedy path to a ruling, says Wendy Lyon, partner and solicitor at Abbey Law. “It’s a massive issue.”
A new report evaluating judicial systems in 47 countries by the Council of Europe spotlights judge scarcity in Ireland. There are only 3.27 judges per 100,000 people, by far the lowest rate in the European Union, it shows.
A spokesperson for the Department of Justice said that the Minister for Justice, Fine Gael’s Helen McEntee, set up a working group in April 2021 to find out how many and what type of judges are needed to boost the efficiency of the judicial system over the next five years.
“Any further judicial resourcing needs will ultimately be informed by the report and recommendations of this Group,” they said.
Meanwhile, the government has already provided additional resources to the High Court, the spokesperson said, with six more High Court judges now than as of 1 October 2021.
”This represents one of the largest increases in judges in recent memory,” they said.
A spokesperson for the Courts Service of Ireland didn’t give figures for how long it takes for cases to be heard on average by the High Court, and how long after that it takes to get a judgement.
The service records wait times for hearings by the Court of Appeal and the Supreme Court, but not how long it takes after that to get a decision, and figures “show no undue delay or backlog”, they said.
“All of the court jurisdictions have been prioritising the conduct of hearings in recent years, so as to facilitate those matters where it may be possible to encourage a settlement of a case or the making of ex tempore judgements. This has been aimed at reducing the waiting times,” said the spokesperson.
Waiting in Line
Between 2018 and the end of September 2022, the Department of Justice rejected just over 6,800 applications for permission to remain on humanitarian grounds in the first instance, according to its official figures.
In the same window, it accepted a little over 3,100 requests to stay and granted close to 1,600 people permission after reviewing their first-round unfavourable decisions.
The slowness of judicial reviews means Mfaco and others in the same boat aren’t eligible for the asylum stream of the Minister for Justice’s recent amnesty scheme. Under that scheme, asylum seekers who have been in the system for two years with no final decision could apply for leave to remain.
Since those waiting on a judgement from the courts have reached the end of the asylum process, they’re technically no longer asylum seekers and don’t qualify.
Mfaco says his lawyer applied anyway just before the scheme closed, to save him a place, hoping the lead case would have a favourable outcome, in which case he would enter the asylum system again and could have his case examined under the scheme.
“The [International Protection Office] suspended making a decision on it until the case is resolved,” says Mfaco.
Inside Conlon’s small office in Smithfield, there are case files on her desk, on the ground and on a white shelf adorned by a line of thank-you cards.
Living in direct provision and watching people around them who haven’t been there nearly as long win residency through the amnesty scheme adds to the anxieties of those on judicial waiting lists, making them restless, Conlon says.
“That makes their view to be that the system is unequal and there is no equality in who’s getting status and who’s not,” says Conlon.
The asylum legal aid system doesn’t cover judicial reviews, so the option is typically only available to those with lawyers willing to take their cases to court free of charge.
Conlon, a member of the legal aid board’s international protection panel, is one of those lawyers and so ends up with clients struggling with the limbo of holding lists.
Understanding the judicial delays isn’t easy for some clients, says Conlon. Sometimes they grow to resent their lawyers, thinking they haven’t represented them well and that this is behind the lack of updates.
“The cases I have on this list, the clients are very, very frustrated, they’re very anxious, and they’re very depressed,” she says, a case file in her hands.
The list Conlon refers to is one with a complex lead case.
HK (Western Sahara) v Minister for Justice involves a former asylum-seeking child who left Western Sahara at 14 in 2011 to claim asylum in Europe.
He’s on a deportation order in Ireland and fighting a refused permission-to-remain review application to quash that.
HK travelled to Ireland in 2015, filed an asylum claim and then left the country to claim asylum elsewhere with no luck before returning to Ireland again.
The case, ongoing since 2020, with a decision issued in June 2022 by Ms Justice Aileen Donnelly, a Court of Appeal judge, sketches his troubled teenage years spent in Europe’s asylum system.
He did some time in Italy, where he lived homeless for long stretches and had several run-ins with the law over “minor drugs and shoplifting offences”, says the judgement.
The case makes two separate arguments, including how the same international protection officer rejecting someone’s asylum claim shouldn’t get to decide on their permission-to-remain application.
Ms Justice Donnelly sides with the applicant on one ground, enough to overturn the previous judgement.
But the case remains stalled, says Lyon, the solicitor, who has one client on its related holding list.
The Department of Justice needs to respond to the lead case’s outcome, Lyon says, either accepting or challenging it. In case of a challenge, it will move on to the Supreme Court, which means a longer wait.
“The Minister’s response to the HK judgement of the Court of Appeal has not yet been communicated to applicants on the HK holding list,” says Lyon.
Said a spokesperson for the Department of Justice: “The Department does not comment on matters that are sub judice”.
Ms Justice Donnelly mentions in her judgement the relevance of one aspect of the HK case “on a large number of pending judicial review proceedings concerning applications for international protection, and more particularly, for [permission to remain] PTR”.
A spokesperson for the Courts Service of Ireland said 55 cases are waiting for the HK case to be finalised.
In Search of Lost Time
Mfaco, the asylum seeker with a frozen case on another holding list, says the asylum system itself is characterised by long delays, and facing more of the same in the judicial procedures is unfair.
“It is not procedurally fair to keep asylum seekers waiting for a decision with no idea of when they’re going to receive it,” he says.
He says the government should beef up resources for the courts so cases get resolved faster.
Ireland didn’t give figures on its total spending on courts services in 2020, says the new report by the Council of Europe. But what it provided shows that its budget falls below the median rates for Council of Europe countries.
It spent only €31.1 per 100,000 residents in 2020, up from €22.8 in 2014, says the report, while the median rate is €43.5.
A spokesperson for the Department of Justice said that recent efforts in filling judicial gaps at the High Court amount to a “very significant investment by the state”.
A spokesperson for the Courts Service of Ireland said the average waiting time from filing paperwork to a decision greenlighting an appeal is five weeks at the Supreme Court. Then it usually takes a further 15 weeks for cases to get a hearing.
For the Court of Appeal in civil matters, the average waiting time from the date of appeal to the hearing date is 25 weeks, they said. They didn’t give figures for the High Court.
Mfaco says spending years in the limbo of the justice system means losing precious time to a life marked by deprivation. “There is no justice in that.”