Espectroscopía de Resonancia Paramagnética

5.3.1 Asylum

Ireland initially legislated for its obligations under the 1951 Refugee Convention through the Refugee Act, 1996. Since then, Ireland has amended the Act several times, both because of domestic policy developments, and because of the development of the EU asylum acquis. Ireland does not automatically opt into EU asylum measures, but has an option to adopt such measures. In practice, Ireland is presumed not to be participating in such measures unless it expressly decides to opt in. There are generally two points at which Ireland might indicate that it wished to participate in an asylum or migration related measure; firstly, within three months of the publication of the proposal by the European Commission or, secondly, at any point following the final adoption of the measure. In this regard the legal relationship of Ireland and the UK to the Treaties is laid down in Protocol No. 21 to the Treaty on the Functioning of the European Union in relation to measures proposed in the area of Freedom, Security and Justice. Ireland has opted into most of the asylum acquis, though it is not participating in Directive 2003/9/EC (i.e. the ‘Reception Directive’). The ‘Dublin Regulation’ Council Regulation (EC) 343/2003, enabled through Section 22 of the Refugee Act, 1996 (as amended), and the Refugee Act, 1996 (Section 22) Order, 2003 (S.I. 423/2003), establishes the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States. Ireland opted-in to

Directive 2004/83/EC (the ‘Qualification Directive’), and the Directive is given

domestic effect in the European Communities (Eligibility for Protection)

Regulations, 2006 (S.I. 518/2006) in conjunction with the Refugee Act 1996.

Ireland has not opted into the recast version of the Directive (i.e. Directive

2011/95/EU). This will give rise to a situation whereby two Qualification

Directives will apply in different Member States simultaneously. Council

Directive 2005/85/EC (the ‘Procedures Directive’) establishes minimum

standards for procedures for granting and withdrawing refugee status. The State initially did not expressly transpose the Directive, relying instead of the procedures already in place under the Refugee Act, and in line with the

administrative procedures determined by the Minister and the various statutory bodies under that Act.

An emerging emphasis as noted by Irish policymakers consulted for this study was the impact of EU acquis through the European Court of Justice (ECJ). Several high profile ECJ decisions both in Irish cases, and across the EU, can be seen to have directly impacted on current asylum procedures. When a particular issue is under consideration by the ECJ and pending judgment, similar cases are put on hold in the Irish context until an opinion is issued by the ECJ.

5.3.2 Migration

Ireland has not opted to take part in many EU migration measures. Accordingly, the impact of EU legislation and policies on Irish migration law has been limited.166 _{Ireland opted into, but has yet to transpose, the Framework Decision} of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence. Ireland opted into

Directive 2004/82/EC, which has been transposed by the European Communities (Communication of Passenger Data) Regulations 2011. Ireland also opted into Council Directive 2002/90/EC defining the facilitation of unauthorised entry,

transit and residence and the Researchers Directive 2005/71/EC. Also, on the basis of participation in some aspects of the Schengen acquis, Ireland participates in several, but not all, Schengen-related measures, including Regulation (EC) No 377/2004, which creates an immigration liaison officers network.

The historical, cultural and economic importance of the Common Travel Area has profoundly affected Ireland’s external relationship with the EU acquis. In the interests of preserving the Common Travel Area, Ireland has aligned its immigration and asylum policies with the UK and as such has an external relationship with the EU acquis. Perhaps the most obvious consequence of this policy is the EU labour migration policy which has had no real impact on Irish immigration policy. As regards the provisions of international agreements involving the EU that fall within the scope of Part Three, Title V of the Treaty on the Functioning of the European Union; such agreements bind the United Kingdom and Ireland as separate contracting parties, and not as part of the European Union.167

In addition Ireland does not participate in visa and border aspects of the Schengen acquis, the legal basis of which is laid out in a separate protocol to

166 _{For example, Ireland has opted not to participate in Directive 2008/115/EC (the ‘Returns Directive), whichseeks} to establish common EU rules on the deportation of illegal immigrants; Council Directive 2003/110/EC on assistance in cases of transit for the purposes of removal by air; the Frontex Regulation (2007/2004); and Directive 2009/52/EC (the ‘Sanctions Directive’), which penalises employers of illegal immigrants.

167 _{Council of the European Union 665/08. Available at: http://www.dfa.ie/uploads/documents/EU%20Division/} EU%20Reform%20Treaty/consolidated%20eu%20treaties%20in%20english%20as%20amended%20by%20refor m%20treaty%20.pdf.

the Treaty on the Functioning of the European Union. As such Ireland is precluded from taking part in border-related initiatives. This would include the Frontex Regulation, the Border Code and the Common Visa Policy. While the Smart Borders proposals have not been published up to this point, it is expected that they will build on those provisions of the Schengen acquis in which Ireland does not participate and, as a result, it is unlikely that Ireland will be in a position to participate in the Smart Borders initiative.168

As referenced earlier, a number of current issues associated with the asylum and immigration system were to be addressed in the Immigration, Residence

and Protection Bill, 2010. The Minister for Justice, Equality and Defence has

stated in the Dáil that he intends to republish the Bill; it is currently expected to be introduced in late 2012. If enacted, the Immigration Residence and

Protection Bill would comprehensively reform and simplify the current refugee

status determination process by providing for a single procedure decision system. It is hoped that introducing a single procedure will facilitate speedier processing of an application without jeopardising the fairness of the decision reached. In line with the Programme for Government it is also expected that the Bill, if and when republished, will also contain a number of new elements, such as provision for a statutory appeals system.