Is it fair to have a fast-track and a slow-track for processing asylum claims?

Sophia Obierika lifts up her crying baby and clutches him to her chest. The tiny boy calms down.

Obierika and her husband live with their newborn and two toddlers in one room in an asylum shelter. They’ve been waiting to be called for an interview about their asylum claim for 11 months now, she said on a video call recently.

They’re Nigerian citizens – which means the long wait is particularly surprising.

In April, the Department of Justice began to fast-track applications from citizens of the country with the highest number of applicants in the previous quarter. At that time, it was Nigeria.

“I don’t know why they haven’t called me,” says Obierika.

Stephen Kirwan, partner and solicitor at KOD Lyons, says he has noticed a pattern. Even if new applicants from a country are rushed through the system, older applicants aren’t, he says.

A spokesperson for the Department of Justice hasn’t responded to a query sent on Tuesday asking why the policy might not include older applicants.

Says Kirwan: “I think they’ve gone from one extreme where everyone was waiting for ages to another extreme where some applicants are waiting longer than they should be and some are being fast-tracked without fair procedures.”

Fast-tracked cases on average take 11 weeks at the moment, said a spokesperson for the Department of Justice. For others, it’s 18 months, they said – which is down slightly from 2021, when it was 23 months for all, show past figures.

The department is taking all necessary steps to manage the asylum system “fairly, efficiently, and effectively” while upholding its integrity, they said.

The new EU Pact on Migration and Asylum, which Ireland has signed up to, lays out mandatory processing times for asylum claims, the spokesperson said.

Once it kicks in, fast-tracked cases have to get a decision in three months, cases from people already granted refugee status or subsidiary protection in another country in two months, and others within six months, they said.

How fast is fair?

It’s not just cases filed by citizens from the country with the highest volume of applications that are sped up.

In July, the Department of Justice announced it would also fast-track applications from citizens with the second-highest number of applications at any time, which is currently Jordan.

And, it also fast-tracks applications from citizens of the 15 countries currently designated as “safe”, and applicants who already have been granted refugee status elsewhere.

Processing cases faster allows people who need sanctuary to move on quicker and rebuild their lives in Ireland, said a spokesperson for the Department of Justice.

“It also means that those who do not qualify, return to their country of origin,” they said. (Although applicants are likely to appeal, and not all of those refused necessarily leave.)

Fast-tracking cases has led to a decrease in applications from those targeted countries, Department of Justice figures show.

But immigration lawyers have raised concerns that applicants with fast-tracked cases go through the crucial initial stages of the process without legal advice.

Legal aid lawyers struggle to keep up with its pace, says Kirwan, the solicitor. “We are so slammed at the moment.”

Processing new cases from citizens of countries with an uptick in applications faster and depriving them of early legal advice is just unfair, says Kirwan. “Is that an equitable way to deal with cases of persecution?”

Those in the fast-track system also effectively lose the right to work because those who get an initial decision faster than five months can’t apply for a work permit. It means they’re unable to work as they appeal their decision, which, unlike the initial decision, can take months to process.

Kirwan says that, as he sees it, there are now effectively three categories of applicants.

After the Kremlin’s full-scale war on Ukraine, Ukrainian refugees were treated differently than those escaping war and conflict elsewhere, making the latter second-class applicants, Kirwan says.

Now, he said, those who are deprived of early legal advice, fast-tracked, and refused in haste are third-class applicants.

Who should be fast-tracked?

Kirwan, the solicitor at KOD Lyons, says that ideally, it should take longer to assess applications from a country that is considered safe.

“Because you need to look at the case for its own merits rather than country of origin information,” he says. And be faster for applications from countries that everyone agrees isn’t, he says.

Yet, the European Union has not activated its temporary protection directive – which unlocks the zone and offers temporary asylum to citizens of a war-torn country and which it activated for Ukrainians – to shelter those escaping war and conflicts in places like Palestine and Sudan.

“I actually have clients from Gaza who applied months ago, and I asked for prioritisation, and they completely ignored it,” says Albert Llussà, partner and solicitor at Daly Lynch Crowe and Morris solicitors.

The government does still grant a small number of people refugee status without a hearing if they’re escaping war and conflicts, Llussà says. “But they’re certainly not prioritising these cases.”

A spokesperson for the Department of Justice has not yet responded to a query sent on Tuesday asking how many people got their status without a hearing in 2023 and this year to date.

Llussà says he has observed an attitude shift, especially since last November and the Parnell Square attack when anti-immigration activists weaponised the perpetrator’s background to push false theories linking ethnicity and crime.

Kirwan says something similar. When a group is stigmatised, it becomes harder to get positive decisions on cases involving members of that group, he says.

It’s not that different to class bias in social-welfare cases, he says. He used to do lots of domiciliary care allowance cases for children with disabilities, he says. “And at first instance, you would have easily, 80 or 90 percent rejection.”

On appeal with the Department of Social Protection, refusals would be smoothly overturned, he says. “Like what the hell is going on here?”

Kirwan says he worries about a political desire to use the fast-tracked process to drive up deportation orders.

“Like there’s an election coming up, we need to be able to show through our statistics that we have targeted a certain cohort,” he said.

More staff

A spokesperson for the Department of Justice says that the Minister for Justice Helen McEntee has added staff at the International Protection Office (IPO) to accommodate the fast-track system.

Earlier this month, Minister McEntee told the Dáil that the IPO has 517 staff members now, a 144 percent increase since 2022.

That “has trebled the number of decisions issuing from the IPO”, said the spokesperson for the Department of Justice.

But the quality of decision-making at the IPO varies more now than ever before, says Kirwan. “I’ve been at this game 12 years now and this is the worst I’ve seen.”

Llussà, the other solicitor, says he has also noticed varied quality. “I was dealing with an Afghan, for example. He was refused everything.”

Asylum officers didn’t believe that his brother was an interpreter for the US Army, says Llussà. “Ninety percent of my cases are refused on credibility because the interviewer doesn’t believe certain elements of the story.”

Some asylum officers have good reason to dispute an applicant’s story but some don’t, Llussà says. “Some are quite weak in that they’re just quite subjective without good logical inferential basis.”

Meanwhile, Obierika, the woman from Nigeria who’d been waiting for the past 11 months, says it’s not easy to live in limbo and bring up three kids in one room.

Sometimes, when she feels like the walls are closing in around her, she slips out of their centre and cries, she said. “Some days I’m like, ‘Oh my God, oh my God, oh my God.”

Other families in her centre are in the same boat, says Obierika, still counting the days until they are called for an interview. “It’s not been easy, it’s not been easy at all for me, it’s affected me a lot.”