Sunday 16 December 2018

‘We are in breach of our own laws by turning a blind eye’

'Should the executive order impact on an EU citizen with dual citizenship of one of the listed countries, this would be contrary to Article 18 of the Treaty on the Functioning of the European Union, which prohibits discrimination based on nationality.' Photo: REUTERS
'Should the executive order impact on an EU citizen with dual citizenship of one of the listed countries, this would be contrary to Article 18 of the Treaty on the Functioning of the European Union, which prohibits discrimination based on nationality.' Photo: REUTERS
Shane Phelan

Shane Phelan

A group of legal academics believe the application of Donald Trump's hugely controversial 'Muslim' travel ban at US pre-clearance in Dublin and Shannon Airports may be unlawful.

They believe the facilitation of the ban here potentially puts Ireland in breach of both Irish and EU anti-discrimination laws.

The legal analysis came as Taoiseach Enda Kenny ordered a complete review of US pre-clearance in Ireland amid concern over the ban on refugees from Syria and a 90-day bar on citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen entering the US. Already, one person has been refused pre-clearance at Dublin Airport.

The agreement under which air travellers clear US immigration in Ireland and are then treated as domestic arrivals once they land in the US was struck in 2008 and is governed by Irish legislation, the Aviation (Pre-clearance) Act 2009. Under the act, gardaí and customs and excise officials may be involved in supporting the exercise of powers by US pre-clearance officers.

In an analysis published by the humanrights.ie website, a number of legal experts said they believed Ireland had international legal obligations in relation to what happens in pre-clearance areas as these are within the jurisdiction and territory of the State.

The analysis, contributed to by UK-based legal academics Professor Fiona de Londras, Professor Colm O'Cinneide and lecturer Mairead Enright, and Australia-based Dr Darren O'Donovan, argues these legal obligations cannot be set aside. They say equality guarantees in the Irish Constitution and the European Convention on Human rights outweigh any agreement with the US.

Should the executive order impact on an EU citizen with dual citizenship of one of the listed countries, this would be contrary to Article 18 of the Treaty on the Functioning of the European Union, which prohibits discrimination based on nationality.

The analysis also argues that Section 42 of the Irish Human Rights and Equality Commission Act 2014 also applies.

This requires public bodies, including An Garda Síochana and the customs service, to have regard to the need to eliminate discrimination and protect human rights.

Several prominent Irish law firms have said they would be willing to assist anyone who is affected by the travel ban in Ireland.

Gareth Noble of KOD Lyons Solicitors said the State was "in some difficulty" if it allowed the executive order to be enforced here.

"Whilst there is an argument to suggest that it is American travel space, the facilitation of that can only come about by agreement with the Irish authorities," he said.

"So, in effect, we would be facilitating them and allowing them or permitting them to do something which we wouldn't tolerate in this country, but which they cannot do without our agreement and participation in.

"The analogy I would use is one where you have two people involved in a criminal offence. One commits the crime and the other assists them or helps them prepare for that crime.

"The person who assists is as guilty of that breach of the law as the person who actively commits the crime. That's what joint enterprise and common design is.

"In the same way, this is a scheme which cannot get off the ground without the participation of the Irish State.

"We are in breach of our own constitutional order, our own domestic legislation and the European Convention on Human Rights by not just turning a blind eye to this but actually facilitating it."

Irish Independent

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