THE CABINET WILL today discuss the implementation of the US travel ban for citizens from seven Muslim countries at pre-clearance at Dublin and Shannon airports.
Questions have been raised about whether Ireland is required to implement policies that involve this kind of discrimination and about the direct involvement of Irish officials in this process at the two airports.
What does the travel ban mean for people travelling from Ireland?
On Saturday, the US Embassy in Ireland confirmed the executive order of a 90-day ban on people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen was in operation at Dublin and Shannon Airports.
The order suspends visa issuance and entry into the US of nationals from these countries – including those who have dual nationality of these countries. Nationals of these countries who already had a scheduled visa interview at the embassy were told not to attend.
Though the embassy said the majority of Irish people would not be affected, it does impact on any Irish citizen who also has citizenship in one of these seven countries.
It could also impact on travellers from these countries who either have dual citizenship in the US or a valid green card if they have a stopover in Ireland.
What happens if a person is denied entry into the US at pre-clearance?
Yesterday it emerged one person had been turned away from pre-clearance at Dublin Airport since the ban was implemented.
UCD law professor Liam Thornton explained Irish officials – possibly gardaí – will have to escort any person denied entry onto a flight out of the pre-clearance area.
“This means Irish officials are now potentially giving operative support to uphold the executive order which has been condemned by our own ministers,” Thornton said.
In a statement issued yesterday by a group of human rights bodies, including Amnesty International, the Immigrant Council of Ireland and the Irish Refugee Council, they also expressed concern that Irish officials will assist US pre-clearance officials implementing the ban.
If a person denied clearance is a dual Irish citizen, they will obviously be allowed to leave the airport. If they are not, they will have to pass through immigration in either Dublin or Shannon airports and request entry into the State.
“It’s likely immigration officials would be sympathetic to that situation,” Thornton said. He said there may be a number of people with valid green cards who are travelling for work and stopping in Ireland on the way. If they cannot return to the US, it is possible they will have to return to the country they were visiting for business.
How is this allowed to happen here under Irish law?
Pre-clearance officers in Dublin and Shannon airports have a number of powers. They can question people, detain them for limited periods of time and ultimately deny them entry onto their scheduled flight.
Officers can refuse any person who is found to be ineligible for entry into the US, and this now officially includes under the terms of the executive order.
These powers are all covered under the Aviation (Preclearance) Act of 2009 which lays out the agreement between the US and Ireland.
However, as Thornton pointed out, this agreement is not part of Irish law and certainly does not overwrite the rights detailed in the Irish Constitution.
Under the Irish Constitution, the rights of the individual have to be protected, including the right not to be discriminated against because of nationality or religion. The State also has an obligation to protect human rights under the ECHR Act of 2003.
This will likely form a big part of the discussion around the Cabinet table later today, as ministers work to determine what their legal obligations are to people travelling through these airports, and what action they can actually take.
What are the options?
As with any legal grey area, Thornton said court challenges are always an option.
“But courts are reluctant to intervene in what they might see as an exercise of government or foreign policy and relationships with other states,” he explained. Irish courts cannot order the US to accept people from these seven countries.
The government could, in theory, back out of the agreement entirely, but this would likely injure the relationship Ireland has with the US quite severely.
Canadian and British citizens with dual nationalities have been exempted from the order and it is possible this could be negotiated with officials in the US for Irish citizens.
Thornton pointed out that when the Irish government made the agreement, it did not believe it would be forced to allow the operation of discriminatory policy such as the one currently in place.
The Taoiseach yesterday confirmed he had asked for a review of Ireland’s pre-clearance at airports.
Thornton said the government will now have to assess the degree to which human rights are being breached at Irish airports and provide information for those who are caught up in it.
They will also have to clarify what the role of gardaí and Irish immigration officials play in this process – and how appropriate that is now.
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