For asylum seekers from “safe countries”, a greater chance of being left to live in poverty

Melanie Van Rensburg used to run her own shop back in South Africa — her country of birth. “I’m used to working,” she said, recently.

But since she arrived in Ireland to seek asylum in August 2023, Van Rensburg hasn’t been able to work.

Asylum seekers can file for a work permit five months after lodging an asylum claim. But they can only get one if they haven’t had a decision on their case within six months of filing.

If they get a positive decision in that time, none of that really matters. With their new status, they can work without a permit.

But if they are refused within six months, they can’t legally work – even during what is currently a lengthy wait for their appeal to be decided – so have to get by on an allowance of €38.80 a week

Since November 2022, the Department of Justice has been fast-tracking first decisions for people whose country of birth is on the list of places it considers safe, churning out that first ruling within weeks of a claim.

Van Rensburg got her interview just two weeks after opening a case. And a decision in around three weeks. The process was a blur, she says. “I only got legal aid after I got the refusal.”

But the appeal process hasn’t been as fast for her. She’s waiting since last September, she says.

Stephen Kirwan, partner and solicitor at the law firm KOD Lyons, says the new sped-up process has been, at times, unfair and stressful for his clients.

And past court rulings suggest it’s unfair to stop asylum seekers from working altogether, he says – which effectively the current system does for those from “safe countries”.

He points to N.V.H. versus Minister for Justice. It’s a case filed back when asylum seekers couldn’t work at all if they hadn’t had a final decision.

“The court in the case of N.V.H said, in no uncertain terms, the state can restrict the employment of asylum seekers but can’t completely ban it,” said Kirwan.

A spokesperson for the Department of Justice didn’t say how long it takes for an applicant to get a decision on their appeal.

But of all cases, the tribunal upheld 72 percent of its first-stage refusals in 2023 and overturned 28 percent of them, they said.

So a person who was turned down in the first instance, may well later be found to have a valid asylum claim after all.

What is safe?

The concept of “safe countries” emerged in European asylum law in the 2000s.

A country can be designated as “safe” if, taking into account the legal and political situation, there is “generally and consistently” no persecution, torture, inhumane degrading treatment, punishment or violence there, says the International Protection Act 2015.

European Union member states designate different countries as “safe”. In June 2020, the European Commission gave up on its most recent push for a common list.

The Department of Justice updated Ireland’s list in January this year, adding Algeria and Botswana.

Freedom House, a non-profit democracy watchdog based in the US, considers Algeria to be an unfree country. It rated the degrees of democracy there 32 out of 100 in 2023.

It sees Botswana as a free country, giving it a freedom score of 72 out of 100 in 2023. Algeria and Botswana are joining eight other countries on Ireland’s “safe countries” list, including South Africa.

This changing pace

Citizens of countries on the safe list have applications processed in less than 90 days, says a Department of Justice press release from the end of January.

It doesn’t explicitly say whether that’s for a first or final decision. But the statement overall suggests it refers to initial decisions.

Sixty-eight percent of applicants fast-tracked under the new system had had first decisions by the end of 2023, it says. “Of which 81% were negative.”

The International Protection Office’s (IPO) processing times for initial decisions dipped to 65 days in August 2023 thanks to ramped-up staffing and a “digital-only” procedure, it says.

Van Rensburg says she read in an article that people like her would get final closure within 90 days – and that made her angry. It doesn’t match her experience of a long wait while stripped of the right to work, she says.

Not being able to work makes her feel unnecessary, she said.

She applied to carer courses to keep busy, she said, but some providers set out immigration requirements she couldn’t meet.

“Where is the justice in that, you understand? You just got to sit,” she said recently at a café in the city.

She’s alone here and spends her days wandering around the city or hiding out in her room in the hostel she lives in, she said.

It’s painful watching others at her centre get up and go to work every day, she says.  “It makes me feel bitter.”

“I can’t, I just can’t anymore,” she said, crying.

It’s not easy to live on €38.80 a week either, she said, lining up her receipts from the Department of Social Protection on the table. Her €5 a day can disappear on just a cup of coffee and a snack, she said.

A little later, she pulled out a pistachio-green notebook from her bag with a faint smile. She flips through it and lays it out on the table.

“Look,” she said. “I want to send this to Justice Minister, I will send it tomorrow.”

It’s a few pages of writing about how hard it has been to sit through life without anything to do and what a nightmare it was to get a medical card so she could get medication to calm her anxiety.

She has written too about how it’s not all done and dusted in less than 90 days. It’s just fast-paced at the start.

A spokesperson for the Department of Justice said that as of 31 January, 1,530 people who had gone through the speedy process got a first decision less than six months after they filed their asylum claim.

Kirwan, the solicitor, said the department needs to beef up resources for the International Protection Appeals Tribunal (IPAT) – which handles appeals – so it can keep up with the IPO’s current speed of first decisions.

A spokesperson for the Department of Justice did not directly respond to a query asking if it would consider granting the right to work to even some of those waiting on appeal decisions.

But they said that by 31 January, almost 595 citizens of designated safe countries had had a final decision on their applications processed in the fast lane. They didn’t say when exactly those people had filed their initial claim, but the fast-paced process kicked in back in November 2022.

Between January and December 2023, the IPO had gotten 1,065 fresh asylum claims from citizens of Georgia alone, another country deemed safe, according to its official figures.

Leave sooner

Adding to the stress caused by the long wait without permission to work, people waiting for decisions on appeals have been getting erroneous deportation letters, Kirwan says.

He says people are getting deportation letters even though they have lodged valid appeals. “I had three cases today,” he said by phone on Thursday afternoon.

A spokesperson for the Department of Justice said it is possible that an appeal isn’t recorded on the tribunal’s system by the end of the window during which people are allowed to lodge.

If that happens, the department might move the application to the next stage, assuming there’s no objection. “Such instances are not a common occurrence,” they said.

On the rare occasions where the tribunal accepts late appeals, they said, that cancels out its deportation orders or letters.

But Kirwan says that based on his experience, this has been happening even when his clients had filed appeals on time.

“Whatever is happening, the appeals body appears to be not communicating properly with the ministerial decision unit,” he said.

Kirwan has to send letters to the government to remind them not to send out early deportation notices. “And you’re threatening high court proceedings the whole time, and they eventually back down,” he said.

Kirwan says it’s not like he enjoys threatening the government with legal action all the time.

But it freaks out his clients when they are wrongly asked to turn up at a Garda station for deportation, he said.

Beyond that, Kirwan says citizens of “safe” countries sometimes get appeal decisions without a chance to present their cases before a judge at the tribunal. “It’s a massive problem at the moment.”

He said he’s concerned that as elections draw nearer, political parties want to use promises like ramping up deportation as a way to cajole some voters.

On 4 February, the Irish Independent quoted Fine Gael TD and Minister for Justice Helen McEntee as saying: “Obviously if we add more countries to [the safe list] you’re going to start to see more people deported.”

It says McEntee envisions deporting up to 5,000 people with chartered planes each carrying 20 to 30 persons.

Even opposition parties like Sinn Féin want to look like immigration hardliners these days, said Kirwan, the solicitor. “It’s a populist issue that is being exploited, unfortunately.”