PAY-TO-PLAY: Is there a problem with asylum seekers and cybercrime in Direct Provision?
What is the best way to find out if my Facebook lover has my best interest at heart? How can I speak out online and preserve my anonymity? When should I catfish, and how long should I do it? Many humans face these ethical questions when creating a throwaway social media account to get the answers they need. But what if those accounts are being used to socially ostracise, share confidential information, and create a cyberworld of embarrassing and hurtful content that go to undermine an International Protection Applicant’s (“asylee”) claim? What if there is an ongoing problem with asylum seekers and cybercrime in Direct Provision?
Well, if you are an asylee with information technology (“IT”) experience, it just might earn you a Refugee Status Declaration in Ireland. At least, that is the consensus among Direct provision residents. Claims have surfaced that the International Protection Office (“IPO”), the department that oversees asylum applications, may be contracting with asylees with IT experience (“Confidential Informant Techs”)—a subset of the asylum morality police—to affect the removal of asylees they feel are incompatible with the overarching goal of International Protection. The nature of the agreement seems to involve accessing inculpatory information about an asylee that may not be before the IPO, which can be used to undermine the credibility of the asylee application.
In this article I argue the use of Confidential Informant Techs in Direct Provision undermines the humanitarian function of asylum, denies an asylee the right to an effective remedy, and violates the right to privacy.
Asylum Seekers and Cybercrime
The use of Confidential Informant Techs in Direct Provision undermines the humanitarian function of asylum. According to Christine Bhat, cyberbullying is defined as the “use of ICT to intimidate, harass, victimise, or bully an individual…” Cyberbullying also involves repetition, power imbalance, and intentional aggression toward the victim. When Confidential Informant Techs in Direct Provision obtain private information from brokerage sites about an asylee and republish it online, it serves to intimidate the asylee. Indeed, the Confidential Informant Techs goal is to force the asylee into the public eye through intimidation, which may force them to either relocate or abandon their asylum application—what I refer to as constructive deportation. However, there is one problem with this strategy. If the asylee’s past is splayed across a foreign public forum, that embarrassing content is likely to reach authorities in their country of origin, creating a host of issues on which the asylee may need to launch a new claim. It may also serve as a sur place claim for the asylee. While some may argue the circulation of past information about an asylee online may uphold the integrity of the asylum process, there is no way we can agree with this idea. Section 5 of the Non-Fatal Offences against the Person Act 1997 makes it an offence to threaten another person, by any means, or to cause serious harm to that person. The Confidential Informant Techs’ conduct is a threat because, if the asylee is not coerced into returning home, the Confidential Informant Techs will recreate an environment of oppression similar to the one fled. This action, in and of itself, undermines the intent of asylum, as the humanitarian function’s goal is to save lives and relieve suffering. Thus, one may conclude that the use of Confidential Informant Techs in Direct Provision undermines the humanitarian function of asylum.
Second, the use of Confidential Informant Techs in Direct Provision denies the targeted asylee the right to be heard. Asylees cannot rebut information secretly put before the IPO. Indeed, if the IPO withholds the “secret information” it has used to reject the asylum application, the asylee cannot mount an adequate defence on appeal. Such violates the rights enshrined in EU Charter. In C-300/11, Z.Z. v. Secretary of State for the Home Department, the Court of Justice of the European Union held there was a legal problem inherent in the usage of secret information. To be sure, the CJEU explicitly stated “the right to an effective remedy would be infringed ‘if a judicial decision were founded on facts and documents which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to state their views.’” While it cannot be denied there are limits to the right to an effective remedy, administrative authorities like the IPO and International Protection Appeals Tribunal must prove that it would be compromised by precise and full disclosure to the person concerned of the grounds which constitute the basis of the decision and of the related evidence. As can be seen, the use of Confidential Informant Techs in Direct Provision denies the targeted asylee the right to an effective remedy.
Third, the use of Confidential Informant Techs in Direct Provision violates the right to privacy. The right of privacy is one of the fundamental personal rights of a person which flow from the democratic nature of the State. Activities that restrict the right to privacy can only be justified when they are imposed by law, required to achieve a legitimate aim, and are proportionate to the aim. The use of Confidential Informant Techs in Direct Provision does not fit within this justification because no legislation in Ireland outlines when Confidential Informant Techs in Direct Provision may be employed, and how the information collected by Confidential Informant Techs will be used. While the IPO may have legitimate reasons for employing Confidential Informant Techs, its justification does not seem to meet the proportionality test, as the Confidential Informant Techs can target asylees on arbitrary, unfair, and irrational criteria. In Kennedy & Arnold v. Ireland, the High Court held “[t]he dignity and freedom of an individual cannot be ensured if [their] communications of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with.” The arbitrary procedure used by Confidential Informant Techs to select asylees raises the question as to whether a state is required under the Convention to provide a private remedy against Confidential Informant Techs. To be sure, the ECtHR held in von Hannover v. Germany (2004) that member states have an obligation to protect individuals “from an unjustified invasion of private life by another individual and an obligation on the courts of a member state to interpret legislation in a way that will achieve that result”. Therefore, one may conclude, the use of Confidential Informant Techs in Direct Provision does violate the right to privacy.
On the whole, what can be done about asylum seekers and cybercrime? If no pay-to-play contract with Confidential Informant Techs in Direct Provision exists, then the IPO is obligated to denounce the conduct of Confidential Informant Techs, and to protect asylees who are subject to this unjustified invasion of their private life.