A change to the law means people deciding asylum appeals no longer have to be practising lawyers

A change to the law means that International Protection Appeals Tribunal (IPAT) members responsible for deciding asylum appeals no longer have to be practising lawyers.

Lowering the required qualifications is meant to make it easier to recruit more IPAT members to process more asylum appeals faster.

Senior IPAT officials had discussed the tweaks earlier this year, show documents released under the Freedom of Information Act.

President Michael D. Higgins signed off on these changes to the law on 23 July.

Previously, only practising solicitors and barristers could serve as members of the asylum appeals tribunal.

Broadening the conditions means legal academics or people “in a profession that corresponds substantially to the profession of solicitor or barrister” can now qualify.

Another tweak means people from abroad could also decide asylum appeals in Ireland.

It’s unclear whether they would work for IPAT remotely or have to relocate. A spokesperson for the Department of Justice did not respond to a query sent on 21 October asking that.

Lowering the threshold to qualify should help IPAT recruit more tribunal members, as it works to catch up with the speed of cases passing up to it from the International Protection Office (IPO).

The IPO has accelerated its decisions for citizens of countries perceived as “safe” and from countries with a high number of applications.

But some, like Albert Llussà, partner and solicitor at Daly Lynch Crowe and Morris, have concerns. He says he’s especially worried about whether people can make calls on cases from abroad.

Those who have neither lived in Ireland nor practised law here, he says. “The law is not just a text disconnected from the cultural and political context,” he said.

Judging from afar

The current wording doesn’t make it clear how wide a net IPAT may cast in searching for new tribunal members.

When referencing non-EU locations, it says: “practising, in a jurisdiction other than a member state”.

Documents imply that internal IPAT deliberations about non-EU tribunal members were in the context of the UK.

On 19 June, during a meeting among IPAT’s senior management team, “UK qualifications” for lawyers had been discussed, minutes show.

The Legal Service Regulation Act 2015 says for tribunal members,  there “must be experience in Ireland as a solicitor, barrister or registered EU lawyer”, the minutes say.

The chairperson had said that the Department of Justice was seeking further clarifications on that from the attorney general.

As good as a lawyer?

A spokesperson for the United Nations High Commissioner for Refugees (UNHCR) said it was aware of the recent changes in the law.

It’s not against them, they said, “provided that all members have the appropriate experience for the role as outlined in the revised legislation”.

A spokesperson for the Department of Justice has not responded to queries asking what relevant experience for non-lawyers means.

In the United Kingdom, tribunal members can be non-lawyers who have “gained experience in law” in the opinion of the tribunal president.

In April, Gillan, the deputy chairperson of IPAT, wrote to the tribunal chairperson and suggested the wording “ equivalent legal experience”.

“This lowers the statutory bar, but of course when we are recruiting we can ourselves set the bar for experience where we like each time,” she wrote.

Though practising in a profession that “corresponds substantially to the profession of solicitor or barrister” is the current wording.

Gillan had also suggested lowering years of experience from five to three, though the law says two now.

The spokesperson for UNHCR said, “It is important to stress that the recruitment process should remain robust and thorough.”

Llussà, the solicitor, says he’s concerned about the calibre of non-lawyers who will join.

“I think they [IPAT members] should all be legally trained, practising or retired lawyers,” he said.

Keeping up the pace

In May of this year, IPAT had listed 57 tribunal members besides its chairperson and deputies on its website. The number is now 92.

In November 2022, the Department of Justice began processing asylum claims from citizens of “safe” countries in November 2022 within weeks. But appeals haven’t moved so fast.

The Department of Justice keeps adding more countries to its safe list and expanded its fast lane for processing claims to include countries with the highest number of applications.

Once the EU’s Asylum and Migration Pact kicks in, member states must speed up the process for everyone.

Fiona Hurley, CEO of migrants’ rights non-profit NASC, says she worries about the implications of lowering qualifying conditions for tribunal members and the quality of judgments.

Cases have to be wrapped within 12 weeks under the pact, she said, “from application to appeal and potential decision on removal”.

Hurley says she understands the growing pressure on IPAT and their decision to lower qualifying standards. But “this cannot come at the expense of fairness”.

Appeal decisions can be life-changing, she said, and the integrity of their process must be upheld.

Having enough capacity for efficient decision-making is key to fairness in fast-track asylum processes, says a recent policy brief from the Kaldor Centre for International Refugee Law at the University of New South Wales (UNSW) in Australia.

But fairness also boosts efficiency, says the brief, which looked at Switzerland as a case study.

“Supporting applicants to adequately prepare and put forward their case contributes to faster decision-making and lower rates of appeal,” it says.

In Ireland, access to early legal advice for initial asylum interviews and filling out questionnaires has been narrowed under the fast-tracked scheme.

“Given that many asylum seekers face significant challenges accessing early legal advice before their first-instance decisions, the appeals process plays a critical role in ensuring a fair outcome,” said Hurley of NASC.

The UNSW brief recommends having the option to have more flexible deadlines for more complex cases “which need more time to assess fairly”.

Even at that, it “can only work effectively where all applicants have early access to in-depth information on the procedure as well as independent and high-quality legal assistance”.