The Afghan Humanitarian Crisis and Ireland’s Visa Policy: Swift Executive Action Required to Facilitate Safe Departure

The Afghan Humanitarian Crisis and Ireland’s Visa Policy: Swift Executive Action Required to Facilitate Safe Departure

James McGovern*

Introduction

On August 19, 2021, the agency responsible for the control of immigration in Ireland—the Immigration Service Delivery (under the guise of the Department of Justice)—announced that “[i]n response to the humanitarian situation in Afghanistan, the Department is currently focused on processing applications for Afghan family members of Irish citizens and Afghan nationals living in Ireland.”^[1] This is very clearly an encouraging response to a pressing human rights crisis, that the Minister for Justice (the “Minister”), Helen Humphreys—the individual responsible for immigration and asylum in Ireland—is taking to facilitate Afghan nationals. It follows calls from many non-governmental organizations for various immediate reforms of programs and policies. Brian Killoran, Chief Executive of the Immigrant Council of Ireland, stated that the Immigrant Council is

calling on the Department of Justice to prioritise family reunification applications from Afghan nationals. . . . We are also of the position that the Department [of Justice] should dedicate specific processing and external communication resources to supporting the Afghan community in Ireland who are either in the process of seeking reunification or are now enquiring about the process, due to what has happened [in Afghanistan].^[2]

In a jointly signed letter to Taoiseach Michaél Martin TD (the head of government), twelve organizations from the field of migration, asylum, and refugee rights, advocated for a number of responses to the Afghanistan crisis.^[3] These include resettlement of a minimum 1,000 Afghan refugees, fast tracking family reunification applications and the broadening of criteria, and to ensure the availability of protection for Afghans arriving to the state at ports of entry (while referring to the refusal of entry to ninety-seven Afghan nationals into the state between January 1, 2020 and May 31, 2021).^[4]

The expedition of visa applications for Afghan nationals is of course welcome but of limited assistance to the majority of persons in need of protection. The Minister can—and must—do more. This Post will argue that the Minister can, as the most helpful response, take the simple step of making Afghan nationals visa-exempt. Such a step will not just help Afghans reach their family members in Ireland more speedily and remove entirely the necessity for any visa or family reunification applications from outside the state, but it will also assist other Afghans simply wishing to leave Afghanistan, whether or not Ireland is their ultimate intended destination.^[5]

What will be argued here is that the Minister should, under a statutory power, make Afghans visa-exempt and determine their entry into the state in-situ upon arriving at the port of entry and any applicable processes adopted thereafter, whether that be a claim for international protection or otherwise. Determining eligibility for entry into the state at the port of entry (be it for family reunification or international protection), will also bring the individual person within the remit of the state’s non-refoulement obligations, which would not apply to decisions on visa applications made by a person in Afghanistan.^[6] Ireland cannot refuse entry to an individual who may face a risk of persecution, serious harm or torture, if refused leave to land.^[7]

I. Visa-Required and Non-Visa-Required Nationals

In Irish law, a person who is subject to immigration control is referred to as a “non-national.” A non-national may only be in the state in accordance with a permission granted by or on behalf of the Minister,^[8] and may only enter the state at an approved port of entry^[9] and present to an immigration officer and seek a permission.^[10] This is contrary to the widely, and very mistaken belief, that a visa authorizes entry into the state. Section 4(5)(b) of the Immigration Act 2004 (the “2004 Act”) states that any non-national not exempt from requiring a visa must be in possession of a valid visa. If a non-national is not in possession of a valid visa, an immigration officer “may” refuse that non-national entry into the State under Section 4(3)(e) of the 2004 Act.

Visas often act as no more than an additional barrier to seeking international protection, particularly where formal decisions on entry into the State are made at the port of entry, rather than by way of a visa decision. In Ireland, the position is no different. A visa has no inherent authority to permit residence in the State whatsoever.^[11] All a visa does is allow a person to board a plane to move from their home country where they may face persecution and present to the border of a prospective host country and seek entry. Whether entry will be given is not wholly dependent on the issuance of a visa—the decision rests with the immigration officer at the port of entry, who is empowered with a discretion to grant entry, or to refuse entry for certain specified reasons under statute. ^[12]

Moreover, Section 17(1) of the 2004 Act empowers the Minister to declare “that members of a specified class of non-nationals are not required to be in possession of a valid Irish visa . . . when landing in the State.” The default position is that all non-nationals require a visa unless expressly exempt by order of the Minister. The Minister makes such declaration by way of secondary legislation in the form of a statutory instrument. Under Section 17 of the 2004 Act, the Minister has made a number of ‘visa orders,’ the principal of which is the Immigration Act 2004 (Visas) Order 2014, which does not exempt Afghan nationals from possessing a visa.^[13] Section 17 of the 2004 Act also states that visa orders may be made by the Minister “for the purposes of [inter alia] ensuring the integrity of the immigration system.” In the circumstances that the Minister is empowered by statute to make Afghans visa-exempt effectively overnight but has not taken that step to contribute to rescue efforts, interesting questions arise as to what makes an immigration system integral.

Afghan nationals are an even smaller class of persons who not only need a visa to seek leave to enter the State, but also if intending to only transit through the state (by way of a transit visa).^[14] This obviously has implications for Afghans who are travelling by plane with a lay-over in Ireland and are seeking asylum or family reunification in a third country, thereby adding further barriers to their proposed route of leaving Afghanistan in attempts to reach particular destinations which would not involve lay-overs in Ireland, reducing their options even further due to the administratively burdensome nature of apply for visas.

The statement referred to above from the Immigrant Council points out the administrative difficulty facing many Afghans—particularly women—in light of their obligation to apply for an Irish visa:

In recent days we have also become aware of other issues arising in relation to the identity documents of visa applicants. We are calling on the Department to return identification documents, like passports, to applicants based in Afghanistan, so that they can comply with the rapidly-changing security requirements being imposed by the Taliban that require people—women in particular—to carry identity documents with them at all times.^[15]

Making Afghans visa-exempt would immediately limit this gendered risk. The above issue, however, is not an isolated example of the harm that can be caused by visa requirements (and the associated carrier liability on States) on persons seeking protection from persecution or serious harm.

With time being of the essence, and with the particular gendered-risks in mind, the Minister ought to exercise her statutory power and declare that Afghan nationals are visa-exempt and make prompt arrangements to return identity documentation such as passports. In the absence of this, Irish government assistance to Afghans will seem half-hearted, when a quick measure that will benefit thousands can be adopted. Instead, at the time of writing, the government has continued with preferring administrative decision-making over active humanitarian action.

There have been no overt reasons for why the government has not taken this action, but it may be due to the state having national security concerns. Such concerns, however, are unlikely to be alleviated by mere visa checks. Additionally, making Afghans visa exempt does not have to be permanent, and can be on a short-term, or “as needed” basis, lasting for the duration of the humanitarian crisis. Such a move is not without precedent—in fact, quite the opposite. Earlier in the on-going COVID-19 pandemic, the Minister took the swift decision to make previously visa-exempt nationals visa-required, such as nationals of Brazil, Bolivia, and Argentina.^[16] That decision came into effect at midnight on January 27, 2021 and was for the purposes of “Government efforts to tackle the pandemic.”^[17] This decision was then reversed on June 15, 2021 in respect of certain countries after conditions improved.^[18] There is an analogy to be drawn between making persons visa required for the health and safety of the state and making Afghans visa-exempt to ensure as much as possible their safe passage and departure from Afghanistan. It demonstrates the ability of a state to quickly alter its visa policy to reflect the particular circumstances of the state, be that strengthening visa policies to reduce the number of entrants (such as during COVID-19), or lessening visa policies to accommodate a higher number of entrants. It would not take away deportation powers nor take away powers of entry and refusal. It would merely facilitate at-risk persons fleeing persecution and serious harm when they would otherwise be hindered by visa requirements.

II. Non-Conformity with Visa Policies, and the Minister’s Executive Discretion

In the alternative, where the Minister does not intend to make Afghans visa-exempt, the Minister may still grant a visa to Afghans who do not strictly satisfy the various conditions of the applicable policy upon which a visa is being applied for. In these circumstances, the Minister must exercise her executive discretion to grant a visa where the normal conditions are not—or cannot—be satisfied due to the on-gong humanitarian situation. The ability to grant a visa in Irish law is a matter for the Minister’s executive power, and the Minister is not wholly constrained by statute or administrative policies in deciding whether to grant a visa even where the conditions are not met.

This discretion is more important in this crisis given that Ireland does not have any “humanitarian” visa or an “asylum” visa. There is no special visa which can be applied for outside of the standard category concerning family reunification, excluding the exceptional categories of visas concerning business, investment, or employment permits,^[19] which are—realistically—not the type of visas which will be open to the majority of Afghan nationals wishing to flee.^[20] In those circumstances, the most realistic visa options concern family connections. The obvious limitation is that Afghans may only apply for this form of visa if they already have family in Ireland. There are generally only two ways in which family unification can be applied for in Ireland: (1) Family Reunification under the International Protection Act 2015 (the “2015 Act”), or (2) pursuant to Ministerial Discretion under the Non-EEA Family Reunification Policy Document (the “Policy Document”).

Family Reunification under the 2015 Act applies only to immediate family, namely the spouse or civil partner of the sponsor, parents (if the sponsor is under 18), and children of 18 or less. This excludes extended family such as grandparents, siblings, cousins etc. Furthermore, eligible sponsors are only persons with a Refugee Status Declaration or a Declaration of Subsidiary Protection. Additionally, an application for family reunification must be made within 12 months from the date of the relevant declaration, and only applies to “pre-flight” marriages.

The 12-month window within which an application must be made is clearly unworkable for many people from countries where administration is excessively burdensome or simply a failed state with no administration, making it more difficult for the required documentation to be obtained, translated, sent to, and received back from embassies and consulates (which may be based in a third country). Notwithstanding these difficulties, the Irish Supreme Court upheld the Constitutionality of the family reunification provisions of the 2015 Act, overturning a decision of the High Court which found the restrictions in the 2015 Act repugnant to the Constitution.^[21]

The alternative for anyone outside of the 2015 Act is the Policy Document, which is based entirely on the Minister’s executive discretion to grant or refuse the application.^[22] The Policy Document contains very stringent financial criteria, particularly for sponsors seeking reunification with their elderly parents and spouses or a number of children.^[23] If a sponsor cannot meet the financial criteria, their application may be refused on this basis alone.^[24]

If there was ever a time for the Minister to be flexible in operating a visa policy for family reunification, particularly where financial criteria cannot be met, this is the time. The Minister’s executive power is not constrained by the adoption of an administrative policy.^[25] The humanitarian crisis in Afghanistan is well documented, and any application for family reunification should be granted unless there is clear and convincing evidence of, for example, national security concerns.

Granting the application, notwithstanding non-adherence to formal criteria, will pave the way for safe passage from Afghanistan to Ireland or another third country. Thus, it will limit the risks traditionally associated with clandestine entry or risky irregular exits from countries under the control of the Taliban (who are reportedly limited the ability of persons to leave),^[26] particularly for women and young girls.

Much like the argument in respect of making Afghans visa-exempt, granting a visa notwithstanding an inability to satisfy criteria will not undermine the State’s immigration system. It does not make it any less integral. In fact, depending on one’s view as to what it means to have an “integral system,” making Afghans visa-exempt or broadening family reunification criteria, may make it more integral in the eyes of the international community and set an example.

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[*] Law Lecturer with City Colleges Dublin and a former asylum adjudicator for the Department of Justice. B.A., LL.B. (Hons.), LL.M. (Immigration Law), Ph.D. Candidate, Trinity College Dublin (School of Law)

[1] Immigration Notice on the Humanitarian Situation in Afghanistan, Republic of Ireland Department of Justice Irish Immigration Service (Aug. 19, 2021),https://www.irishimmigration.ie/immigration-notice-on-the-humanitarian-situation-in-afghanistan/ [https://perma.cc/JD9R-ZDAZ].

[2] Press Release, Immigrant Council of Ireland Press Release, Immigrant Council of Ireland Calls on Department of Justice to Prioritise Family Reunification Applications from Afghan Nationals (Aug. 16, 2021), https://www.immigrantcouncil.ie/news/immigrant-council-ireland-calls-department-justice-prioritise-family-reunification [https://perma.cc/3853-6RJC].

[3] Letter from Nick Henderson et al., Chief Executive Officer, Irish Refugee Council, to Michaél Martin, Taoiseach (Aug. 17, 2021), https://www.irishrefugeecouncil.ie/Handlers/Download.ashx?IDMF=be1f6a9e-d25b-4e7f-b0bc-7cbb139c12d7 [https://perma.cc/HZ56-R23D].

[4] Id.

[5] While not the issue dealt in this Post, I suggest that similar action can be adopted by the European Union, which requires Afghan nationals to possess a ‘Schengen Visa’ when wishing to enter the Schengen Zone (of which Ireland is not a part).

[6] See Thomas GammelToft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control 44–100 (Cambridge University Press ed., 1st ed., 2011).

[7] Immigration Act 2003 (Act No. 23/2003) (Ir.), §5(1).

[8] Immigration Act 2004 (Act No. 1/2004) (Ir.), §5(1).

[9] Id.

[10] Id.

[11] VI v. Minister for Justice, Equality and Law Reform [2007] 4 IR 42, 52 (Ir.). See also Ezenwaka v. The Minister for Justice, Equality and Law Reform [2011] IEHC 328, 10 (Ir.).

[12] Immigration Act 2004 supra note 8. See also Ezenwaka, [2011] IEHC 328, 12 (Ir.).

[13] Immigration Act 2004 (Visas) Order 2014 (SI 473/2004) (Ir.) §5 and Schedule 5.

[14] Id.

[15] Department of Justice, supra note 1.

[16] The full list of countries was Argentina, Bolivia, Brazil, Chile, Colombia (also transit visa required), Ecuador (also transit visa required), Guyana, Paraguay, Peru, South Africa, Suriname (also transit visa required), and Uruguay. Available at https://www.irishimmigration.ie/covid-19-visa-arrangements-updated-15th-june-2021/ [https://perma.cc/RX28-HE8K].

[17] Id.

[18] Immigration Act 2004 (Visas) (Amendment) (No. 2) Order 2021 (SI 287/2021) (Ir.).

[19] A non-EEA national may apply for an Employment Permit under Section 4 of the Employment Permits Act. Employment Permits Act 2006 (Act No. 16/2006) (Ir.), §4.

[20] The Minister did, however, announce the allocation of 150 visas under the Irish Refugee Protection Programme, aimed at resettling refugees from abroad into Ireland. This is welcome, but very clearly not sufficient in light of the scale of the on-going humanitarian crisis unfolding in Afghanistan. In any case, all places on the Programme have been filled. Press Release, Department of Foreign Affairs, Government Calls for An End to the Violence in Afghanistan and Announces More Humanitarian Visas (Aug. 16, 2021), https://www.dfa.ie/news-and-media/press-releases/press-release-archive/2021/august/government-calls-for-an-end-to-the-violence-in-afghanistan-and-announces-more-humanitarian-visas.php [https://perma.cc/LVJ5-3KDT].

[21] A v. Minister for Justice & Equality & Ors, S v. Minister for Justice & Equality & Ors, I v. Minister for Justice & Equality & Ors (Approved) [2020] IESC 70 (Ir.).

[22] Department of Justice and Equality, Policy Document on Non-EEA Family Reunification (December 2016), para. 1.5.

[23] Id. at para. 17.

[24] Id. at para. 21.3.

[25] See A.Z. v. Minister for Justice (Approved) [2021] IEHC 770 (Ir.).

[26] Ben Dogherty et al., Afghanistan: reports emerge of Taliban beating Afghans seeking to flee Kabul, The Guardian (Aug. 18, 2021), https://www.theguardian.com/world/2021/aug/18/afghanistan-reports-emerge-of-taliban-beating-afghans-seeking-to-flee-kabul [https://perma.cc/BGM7-JG52].