letter from justice to d/per dated 2013-03-22

8/19/2019 Letter from Justice to D/PER dated 2013-03-22

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IRISH NATURALISATION ANT) IMMIGRATION MIR\ » t HNIS

SHIRBHfS LA DO IRSE ACUTA AG l IS INfMIRCL Na ill-IRFAN N

♦

Department of Public Expenditure and Reform

Upper Merrion Street

Dublin 2.

Att; Ms. Evelyn O’Connor

Re: Lead in time and retrospectiv ity of the new FOI Act in respect o f the Office

of the Refugee Applications Commissioner (ORAC) and the Refugee Appeals

Tribunal (RAT).

Dear Evelyn,

I refer to your recent Email in respect of the above. As outlined in previous

correspondence the position of the ORAC and RAT are rather unique in that the nature of their business is such that it is constantly under attack with regular judicial

reviews taking place not just in relation to the specific merits of individual cases but

also in relation to the process and procedures adopted. Such judicial reviews, which

represent the largest proportion of cases on the High Court lists, often result in the

organisations concerned being unable to process large numbers o f cases pending

receipt o f judgments which can often take several years.

The costs awarded by the courts against these bodies in 2012 amounted to over

€1 .8m. This only tells part of the story as it does not include the State’s costs which is

borne by the Ch ief State Solicitor’s Office. In addition, in calculating the overall

impact of any delay in processing, the direct impact on the costs in the Direct

Provision system also has to be factored in. The cost o f the added delay for each 100 persons for a year on the Direct Provision system amounts to approximately €1.6m

per annum.

It is against this background that we have major concerns about the application of

retrospectivity in respect o f both bodies. It may often be the case that the ultimate

motive and objective is simply o f delaying the process with the result o f FOI requests

being secondary. Accordingly, any risk o f either the FOI Act being used as an

additional method of delay o f ongoing case processing or of it being used as a

potential avenue to re-open cases that have already been dealt with must be avoided at

all costs. This, along with concerns regarding the extent of work involved as outlined

below, are the key concerns o f INIS. In that regard, the following points are made:

(1) The numbers and extent o f the records involved must be considered. For

example, the number of potential records involved in the QRAC amounts to

some 4 million. These cover the contents of live and archived databases and

paper records which may or may not be on databases. The determination of

this would be impossible to do without extra trained resources etc. A similar

situation pertains in the RAT.

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(2) We have to consider the application date in the context of the massive loss of

institutional memory in the organisations over the years. We simply may not

be aware of all the individual records still held and their location as the older

records in particular may not even be coherently referenced. This will mean

that there cannot be certainty about being able to comprehensively address all

FOI requests. A Handbook will enable general information to be provided on

the records held but there will be no guarantee that even' possible record will be retrieved if staff are not aware o f their existence.

(3) ORAC commenced its operations in November, 2000 and, since then it has

undergone a number of significant structural changes. This has been associated

with a massive increase in record creation over the years in line with the

exponential growth in application numbers and much of this was done in an

environment where FOI did not apply.

While we can probably stand over the contents of our records as everything is

discoverable in the context o f JR proceedings, the tests for discovery are

different to FOI as judges of the High Court decide what can and cannot be

released.

(4) At its peak, ORAC had a staff complement o f some 300. The number of staff

now stands at around 100 but the number of records has risen to over 4 million

and are contained in both paper files and computer databases. The volume of

work generated over the years by 300 people cannot now be dealt with by a

small FOI Unit in ORAC without diverting a greater proportion o f the current

core processing staff onto dealing with FOI requests. This will inevitably lead

to delay in processing of cases which, as a result, has a direct impact on costs

in the Direct Provision system. A similar situation pertains to the RAT where

at their peak they had some 160 staff and currently their staff complement is

60.

(5) While many o f the records held can be classed as personal information and

may qualify under one or other o f the exemptions, this would still require - 1

presume - individual searches in respect o f each FOI request, the preparation

of tables listing the information and the specification o f the relevant

exemptions. This would be a huge task in itself, would interfere with the

agencies core processing functions and, as outlined above the bodies could not

guarantee the accuracy o f the results. I should also point out that there is an

increased tendency for applicants to issue costly mandamus proceedings in the

High Court against the state in cases where there are processing delays and

diverting large numbers of core processing staff to FOI searches etc would

simply make this situation worse.

The ongoing priority within ORAC and RAT is for staff to concentrate on the speedy

and fair processing o f refugee applications and appeals in accordance with our

domestic and international obligations and to prepare for new streamlined and less

costly processing arrangements with the introduction o f the single procedure under

the Immigration, Residence and Protection Bill (now before the Houses of the

Oireachtas) or earlier i f done by way o f Statutory Instrument which is also actively


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ol the ( >R AC and RAT m the near future and e cu id have even treat er impacts on the* _ i

ORAC in particular depending on how the matter of Subsidiary Protection is dealtwith.

Should the application o f the FOI Acts be retrospective, this will impact in a major

way on the organisations and on processing times. Consideration would have to be

given to pulling staff off core processing and putting them onto FOI search and recording functions. Core processing is becoming much more complex with even

larger numbers of judicial reviews in recent years thus increasing the need for

ongoing quality assessment of recommendations and complex and comprehensive

training etc. Again this takes resources to be assigned.

In reaching a decision on this matter all o f the above factors need to be taken into

account and should be measured against the actual benefits to be gained. In

considering the extent of any advantage one must take into account that the papers

involved will in many cases have been made available to the applicants over the years

in terms o f appeals and judicial review proceedings. A lot o f information including

statistical material is also made available on the websites o f the organisations

concerned. However, this will not alleviate the need to go through records and compile schedules o f these records and process cases through to finality.

To conclude, there is no capacity to divert any staff onto this retrospective work and

this will become even more difficult in the context o f the introduction o f the planned

Single Procedure with even greater emphasis on quality assurance and tight timelines

for processing. Trying to do this at the same time as having to deal with FOI

legislation going back to November 2000 (the commencement date of ORAC & RAT)

would not be possible. Accordingly, it is the view o f INIS that no retrospective

application o f legislation should apply to these bodies and we strongly recommend

that the scope o f FOI be applied prospectively.

With regard to the commencement date, this is obviously linked to the decision on

retrospectivity. Assuming retrospectivity does not apply, INIS would view this as not

a major issue and could live with a six month lead time following enactment.

letter from justice to d/per dated 2013-03-22

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