Tuesday, April 6, 2021

Cessation of Passport Services Raises Fundamental Rule of Law Concerns


Donna Lyons, Trinity College Dublin 



Restrictions on International Travel 

Regulation 4A(1) of the Health Act 1947 (Section 31A - Temporary Restrictions) (Covid-19) (No. 10) Regulations 2020 provides that ‘an applicable person shall not leave his or her place of residence to go to an airport or port for the purposes of leaving the State without reasonable excuse’ (this is a penal provision, as confirmed in Regulation 4A(3)). 


Regulation 4A(2) provides that ‘such reasonable excuse includes’ a person leaving one’s residence in order to engage in work; provide services to or perform the functions of an office holder or provide services essential to the functioning of diplomatic missions and consular posts; attend education; accompany a person with whom one is residing or a vulnerable person to attend education; attend a medical or dental appointment or accompany a person with whom one is residing or a vulnerable person to such an appointment; seek essential medical, health or dental assistance; attend to vital family matters, including providing care to vulnerable persons; attend a funeral; fulfil a legal obligation, and leave the State where one is not ordinarily resident here. Many of these activities mirror those outlined in Regulation 4(2) for the purposes of domestic travel, but the list of activities constituting a reasonable excuse for travel abroad is shorter and more stringent. Understandably, the government has felt it imperative to limit international travel for the purposes of protecting public health. 


Previous Observatory blog posts have focussed upon international travel in the pandemic (Oran Doyle has recently written about where things lie in relation to international travel restrictions and Conor White has analysed the fines which are in place for travelling abroad unlawfully). In this post, I examine the issue of renewal or replacement of passports for the purposes of international travel.  



Additional Restrictions in the Case of Expired or Lost Passports 

The Regulations do not themselves refer to the question of renewal or replacement of passports (a consolidation of the Regulations is available on the Observatory website here). According to the website of the Department of Foreign affairs, however, the passport service ‘has paused operations in line with the move to Level 5 of the Government’s National Framework on Living with COVID-19 from 24 December 2020.’ The passport service is still accepting online applications, but these will only be processed when the passport service resumes operations at Level 4. 


An ‘Emergency Passport Service’ is in place, which may allow for the processing of passport applications. According to the passport service’s website, an emergency ‘is defined as death or grave illness of an immediate family member, with a need for urgent travel within the next few days or for emergency medical treatment of the applicant.’ The website also notes that any supporting documentation which has been submitted will be held securely and that if individuals need documents returned to them, they should contact the Webchat service. It has been pointed out in this context that parents who were required to submit their own passports as part of applications for children, have been ‘waiting months’ for the return of their supporting documentation. 


A ‘limited Webchat service’ is available in the absence of phone lines, e-mail, or in-person contact. The Webchat service personnel do not have access to information in relation to specific passport applications. Webchat ‘agents’ are available between 9:30am and 4pm Mondays through Fridays. It is required that individuals make contact with the Webchat service regarding renewal or replacement of passports for the purposes of emergency travel. In the case of such a request, the Webchat agents recommend that individuals submit the passport application online and subsequently make contact via e-mail with the following address: ‘travelemergency@dfa.ie’ (Fig. 1 below). 


Fig. 1: Transcript of Correspondence Between Author and Passport Service Webchat Agent 


The Webchat agents note that the aforementioned e-mail account is monitored at all times, but in practice an automatic reply is issued from the emergency e-mail account outside of business hours (Fig. 2 below). The automatic reply e-mail provides a phone number which is manned at all times. 


Fig. 2: Automatic Reply from ‘travelemergency@dfa.ie’ outside of Business Hours 


Neither the emergency e-mail address, nor the emergency phone number are provided on the passport service’s website, such that in practice individuals facing an emergency like the grave illness or death of a family member, or the need for emergency medical treatment, will only obtain access to the relevant contact details during business hours via the Webchat agents. 


The narrow grounds of death or grave illness of an immediate family member, with a need for urgent travel within the next few days, or for emergency medical treatment of the applicant, are clearly more stringent than those in place for permissible travel abroad for individuals holding valid passports. If there are other grounds which fulfil the criteria for expediting, they are not outlined on the passport service’s website.


The Irish Times, on 20 February 2021, quoted the passport service to the effect that the following services were available: a same-day service for emergencies, a weekly urgent service for Irish citizens resident overseas requiring a passport for local immigration purposes, and in general, adult renewals for work purposes on a weekly basis where a letter from the employer was provided. Expediting passport issuance for immigration or work is nowhere mentioned on the passport service’s website. 


The same article quoted the passport office as stating that while routine online passport applications did not involve face-to-face interaction with applicants, staff did need to attend the passport office to process the applications as staff do not have access to the private, personal data of applicants when working remotely. 


The problems arising from this state of affairs are analysed below. 


The Data Protection Defence: Fact or Fiction? 

It is unclear why passport applications as a general rule must be halted on the basis that staff need to attend the passport office to process the applications. If it is the case that staff in the passport office do not have access to the private, personal data of applicants when working remotely, it would be useful to have an explanation by government officials as to (a) what the specific problem is with staff attending offices in-person to perform this essential service when other essential service-providers have been encouraged to return to the workplace, and (b) how the passport service differs from the likes of the NDLS, RSA, and Revenue in the context of access to personal data on a remote basis.  


According to the NDLS website, ‘[u]nder Covid-19 Level 5 Government restrictions effective from 06 January 2021 you can attend an appointment at an NDLS centre if you are an essential worker involved in the provision of essential services or essential retail outlets.’ Full licences which expired during lockdown have been automatically renewed by 13 months, but the online processing of all other licence applications is in effect, as is the processing of learner permits. The RSA is operating in-person for the purposes of holding driving tests for essential workers. Revenue is still operational (‘[w]e continue to carry out our vital role as a tax and customs administration to the greatest extent possible having regard for the safety and well-being of both our staff and taxpayers’). Indeed, there has been no delay by Revenue in processing tax liable on social welfareentitlements in the form of the Pandemic Unemployment Payment (PUP). 


In another article on 20 February 2021, an Irish Times journalist commented on the ‘data protection’ justification offered by the passport office as follows: 


‘[T]his seems more than a bit disingenuous, when Revenue staff are working away remotely with equally private and personal data, and driver’s licences are still being issued. Britain may have introduced mandatory hotel quarantine to discourage travel, but it hasn’t stopped issuing passports.’ 


In the UK, the online processing of passports is in full effect, taking approximately three weeks for each passport to be renewed or replaced. A passport may be processed in a shorter timeframe where it is urgentlyneeded. Therefore, it is possible to obtain a passport urgently in order to travel for compassionate reasons (including urgent medical treatment for the applicant or someone in the applicant’s care, or where a family member or friend is seriously ill or has died), to prove your identity, or to travel urgently for work (including for an airline or haulage company, offshore, for government or local government, in healthcare, for social services with a need to travel with children, and for the armed forces or police). 


Even if the ‘data protection’ ground were defensible, it is indefensible that the general phone lines and e-mail contact services have been closed down. Moreover, even in a genuine emergency, applicants are restricted to contacting the passport office during 9:30am and 4pm, Mondays through Fridays, since the actual emergency contact information (e-mail address and phone number) are only accessible via the Webchat service and emergency e-mail account respectively. It is difficult to avoid the conclusion that a deliberate strategy has been put into place to make it difficult to communicate with the office, even in the case of a genuine emergency, and ‘data protection’ simply cannot be a defence to this in its entirety. Making the emergency e-mail address and telephone number available on the website, for example, would not interfere with the personal data of any applicants. Moreover, if the passport office has told the Irish Times that passports will be issued for work or immigration purposes, why have those grounds not been advertised on the website alongside grave illness, death, or medical emergency? 


Minister of State, Colm Brophy, stated in March that ‘[w]hen there is an essential reason to travel each case will be considered.’ If the grounds for processing are broader than those outlined on the website, one might imagine that staff in the passport office have guidelines regarding which applications to expedite and which to decline. If that is the case, the public have certainly not been made aware of these. On the other hand, if there are no guidelines and staff are permitted to decide on a case-by-case basis, one would have to ask what authority in law those staff have for making such fundamental decisions regarding people’s basic constitutional rights? On public accountability in the pandemic, readers may wish to see David Kenny’s blog post for the Observatory on the specific issue of NPHET’s de facto decision-making power during the pandemic. 


Rule of Law Problems  

The question of cessation of passport services in this way raises serious rule of law concerns. Rule of law is a principle which is emphasised as paramount in both domestic law and international human rights law. The Office of the High Commissioner for Human Rights, for example, has emphasised that while the Covid-19 pandemic may require extraordinary measures, ‘[e]ven in a public emergency, these steps need to be based on the rule of law.’


In a Report launched in February 2021, authored by four members of the Covid-19 Law and Human Rights Observatory (including this author) for the Irish Human Rights and Equality Commission, issue is taken with the Irish government’s emergency response to the pandemic on the basis that certain actions taken offend the rule of law. The Report explains, on page 13, as follows: 


The rule of law is a core value in a liberal democracy. In essence, it requires first that those who are subject to the law can know what the law is so that they can guide their behaviour accordingly; and second, that state officials exercise their powers in accordance with the law. Laws should be published before they come into force; they should be clear and non-contradictory.


The vagueness of the concept of ‘reasonable excuse’ is criticised from a rule of law perspective at pages 75-76 of the Report (and a previous blog post by Oran Doyle also deals with this). Indirect enforcement of the law as a threat to the rule of law is discussed at pages 96-98 of the Report. In this context, the Report makes particular reference to the controversy which arose in July 2020 regarding the denial by the Department of Social Protection (DSP) of the PUP and other welfare benefits to those travelling abroad for holidays during the pandemic. At the time, social welfare inspectors from DSP were questioning people in Dublin airport and information was being fed back to DSP which allowed for the sanctioning of PUP recipients. The Report suggests that ‘[t]his episode was a questionable use of powers under the Social Welfare Acts in order to apply legal sanctions to people for breaching public health guidance’ (page 98). Mel Cousins wrote a blog for the Observatory on the PUP scandal in July 2020 (and a second one which is available here). 


Oran Doyle has theorised (in a podcast for the Observatory) that during the pandemic, each State becomes more like itself. Anyone who has engaged with the DSP in pre-Covid times will know that its modus operandi is a constant blurring of the distinctions between law and guidance, ongoing lack of clarity regarding entitlements, and a perpetual threat of sanction (and indeed actual sanction) for reasons that are ambiguous, constantly changing, and frequently contradictory. If the Irish State treated some of the most vulnerable members of its population in this way before the pandemic, it has certainly become more like itself during the pandemic. 


In the context of passports, the State is yet again contravening basic rule of law principles by indirectly enforcing a stricter set of criteria for international travel than are laid down in the official Regulations. Rather than honouring the already stringent list of reasonable excuses for international travel in the Regulations, the State is now indirectly enforcing a much narrower set of criteria (death, grave illness, medical emergency, and possibly immigration and work, though it is far from clear whether the latter two belong on this list) to a sub-set of potential travellers, the desired outcome being to drive the overall number of travellers down as far as possible. While the objective of restricting international travel for the purposes of protecting public health is itself a worthy one, indirect enforcement of vague policies which contravene the law is unacceptable. This practice is discriminatory, contrary to the letter of the Regulations, and breaches the most fundamental rule of law principles set out in both national and international human rights law.  


Dr. Donna Lyons is a member of the Covid-19 Law and Human Rights Observatory and a coordinator for its Human Rights and Civil Liberties Working Group. Donna also acts as Trinity College Dublin representative to the Irish Department of Foreign Affairs Committee on Human Rights. 


Suggested citation: Donna Lyons, ‘Cessation of Passport Services Raises Fundamental Rule of Law Concerns’ COVID-19 Law and Human Rights Observatory (6 April 2021) https://tcdlaw.blogspot.com/2021/04/cessation-of-passport-services-raises.html

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