Early legal advice and assistance would benefit both State and applicants resulting in higher-quality decisions and fewer appeals, writes Victoria Oluwatobi Isa Daniel, School of Law and Criminology

The rights of international protection applicants, asylum seekers, and refugees have been very much in the limelight over the past two years. This is as a result of movements like Black Lives Matter globally and End Direct Provision in Ireland and the war in Ukraine. But the provision of early legal advice and assistance to international protection applicants - in matters which in many cases could mean life or death - is simply not a state priority here.

How the Irish international protection system works
The Irish international protection system has six steps: an application to the International Protection Office, a preliminary interview, the submission of a questionnaire, a personal interview, the decision of first instance status, and the appeal process. Legal advice and assistance are only mandated by law at the sixth and final appeal stage, rather than at the start of the process.

The questionnaire comprises of an extensive 39-page booklet and must be submitted within 20 working days of applying for asylum. The answers must include all relevant information about the reason for the application, the applicant's prospective permission to remain on humanitarian grounds and family reunification. Due to the importance and weight of the information provided in this questionnaire, the International Protection Office recommends that applicants seek legal advice prior to submission. Yet reports show that 84% of applicants complete the questionnaire by themselves, without any assistance.

The personal interview is conducted by a protection officer some eight to 10 months after the initial application submission. The questions are primarily dependent on the contents of the questionnaire, where the applicant's responses or lack thereof are scrutinised. This is the applicant's first meaningful chance to explain their story and substantiate their claim for international protection. Once again, most applicants in Ireland do not have legal representation at this stage.

The importance of legal advice and assistance

Since the majority of international protection applicants do not have a legal practitioner present during the interview, they are required to self-represent their case to the protection officer. When English is not their native language, they are assigned a translator. This causes various challenges owing to the system's reliance on translators to accurately present and translate information, ensuring applicants have the best opportunity to make their case.

Other jurisdictions show that a strong correlation between providing early legal advice and a low rate of overturned decisions. For example, Ireland has a 33.37% overturned decision rate compared to Sweden, a country with an early legal advice system, which has a 7% overturned rate.

Miscarriages of justice may occur throughout the international protection process in the absence of adequate legal advice and assistance, particularly during the interview stage. It may involve the possibility of improper questioning conditions, as well as the likelihood of false, misleading or forced testimony.

Early legal advice and assistance would benefit both state and applicants, resulting in higher-quality first-instance decisions and fewer appeals. With the assistance of skilled legal representation, the applicant would be able to provide the strongest case possible. As a result, the decision maker would be better able to provide a detailed justification for their decision as they would be better acquainted with the facts of the case. This would reduce the number of appeals that emerge as a result of candidates not receiving legal assistance with their application until the appeal stage. Initiating the legal support process earlier will also foster strong ties and cooperation between the applicant and their legal representative.

Other jurisdictions show that a strong correlation between providing early legal advice and a low rate of overturned decisions. For example, Ireland has a 33.37% overturned decision rate compared to Sweden, a country with an early legal advice system, which has a 7% overturned rate.

The approach of providing early legal advice was piloted twice in the UK. The research reports from the pilot projects illustrated the advantages of thsi approach, while also emphasising the need for increased resources to ensure fruitfulness. Regrettably, due to the lack of political will, the concept was not adopted throughout the UK system. Recent developments involving the relocation of asylum seekers to Rwanda have challenged the UK's commitment to upholding human rights and international law.

What can be done?
In order to introduce a system of early legal advice in Ireland, the State should first opt-in to the EU Law Asylum Procedures Recast Directive, which guarantees legal assistance to international protection applicants prior to the first instance determination. More resources in terms of staffing and financing within legal aid services are required to create a service that provides quality early legal advice. Numerous strikes around the country this year have highlighted the poor renumeration offered to legal practitioners contracted under the legal aid system currently. This is a critical issue that needs to be addressed to recruit and retain practitioners.

The Legal Aid Board, which provides limited advisory services, is only located in major cities, making it less accessible to all applicants. Other avenues must be explored, where services may be offered in all Direct Provision centres and communities.

Without providing early legal advice, Ireland will continue to fall short of its international and EU legal obligations to develop and maintain an effective and efficient asylum system, one that properly supports and serves the needs of international protection applicants and the state.

This article was originally published in RTE Brainstorm.