Former Guantánamo Bay Detainees Granted Leave to Remain

The Irish Times reports today that two Uzbek nationals who had been detained in Guantánamo Bay for seven years but who were found not to be a threat to national or international security have now arrived in Ireland. The former detainees could not be returned to their own countries of origin as there was a real risk that they would be subjected to persecution there. The former detainees have been granted leave to remain by the Minister for Justice, Dermot Ahern (right).

As a legal status, leave to remain is normally granted where someone has been unsuccessful in an asylum application but there are humanitarian reasons for not returning the person to their country of origin. This is provided for under s. 17 of the Refugee Act 1996. However, leave to remain can be granted in broader circumstances than this as it is a discretionary status. Recently a large number of people have been granted leave to remain on the basis of their being the parents of Irish born children, for example.

What is somewhat unusual about the present circumstances is that normally leave to remain is granted where an individual is already within the territory of the state and is a means of preventing deportation (see the interesting paper by Brian Ingoldsby here). In the case of the former detainees who arrived in Ireland this weekend, however, the Minister had announced that he would grant them the right to reside here by means of leave to remain before they ever entered the territory or made an asylum application. The Irish Times article linked to above, however, provides that “[b]oth men will be given leave to remain” (my emphasis) suggesting that the status will formally be given post-entry to the state although the entry to the state was clearly facilitated by the government itself. The process seems, therefore, somewhat irregular.

In addition, persons with leave to remain do not have a right of family reunification but in the case of these two individuals the prospect of freeing them from Guantánamo Bay and from seven years without seeing their families and then not permitting their families to come and reside here with them seems a cruel irony. The Department of Justice has not, as far as I know, made any announcements as to the status of their families but it is to be hoped that family reunification will be facilitated in these cases.

The decision by the Irish government to accept former detainees is an important one that ought to be welcomed; it has by now become clear that the United States has no intention of allowing former detainees to reside within the US itself and therefore other countries’ co-operation is needed to facilitate the closure of the prison there. Thus this action is a very positive one by the government. Putting that aside, however, this use of leave to remain and the means of deploying that status in this particular case is a little curious. Readers and my co-bloggers may have some views on this and I’d be very interested to hear them.