Mediciones ONGs

repeal the European Communities (Eligibility for Protection) Regulations 2006. Under the Bill’s proposed scheme all functions currently being carried out by the Office of the Refugee Applications Commissioner with regard to protection, including

114 _{See H & D v Minister for Justice, Equality and Law Reform,[2007] IEHC 277} Unreported, High Court, 27/07/2007. See section 5.6 of this text.

subsidiary protection, would be carried out by the Minister for Justice, Equality and Law Reform.

The Bill proposes a reformed system for processing applications for protection, and proposes to repeal, inter alia, the Refugee Act 1996, the Immigration Acts 1999, 2003, and 2004, and Section 5 of the Illegal Immigrants (Trafficking) Act 2000. Proposed changes include a shift to a single protection determination procedure meaning that all protection claims, including claims for both asylum and subsidiary protection, would be examined under a single procedure. Applicants would be required to set out all of the grounds on which they wish to remain in the State (including non-protection-related reasons for permission to remain) at the outset of their claim, and all of these matters would be examined together.116 _{The Minister}

for Justice, Equality and Law Reform might then find that the person is (a) allowed to remain in the State on refugee grounds, (b) allowed to remain in the State on subsidiary protection grounds, (c) allowed to reside in the State on other discretionary grounds, or (d) not allowed to remain in the State.

The Bill proposes the establishment of a Protection Review Tribunal. This body would effectively replace the Refugee Appeals Tribunal. Under the new Act, the Minister for Justice, Equality and Law Reform would carry out those functions currently dealt with by the Office of the Refugee Applications Commissioner. The Bill seeks to transpose Council Directive 2005/85 EC (“The Procedures Directive”) into Irish law, and to integrate the provisions of the Asylum Qualification Directive Regulations 2006 (S.I. No. 518 of 2006), into primary legislation.

Definitions Regarding Protection

The Bill deals with both refugee status and subsidiary protection,117

and provides definitions of “actors of persecution”, “actors of serious harm”, “person eligible for subsidiary protection”, “refugee” and “serious harm”.118 _{If enacted, the legislation would provide that}

protection against persecution or serious harm would be regarded as being generally provided where reasonable steps are taken by “a

116 _{At present a person who wishes to claim protection in the State may lodge (a) an} asylum application, which is examined under the Refugee Act 1996, as amended, (b) an application for subsidiary protection pursuant to the Regulations contained in S.I. No. 518 of 2006, and (c) an application for leave to remain in the State pursuant to the provisions of the Immigration Act 1999, as amended.

117 _{Part 7, Section 61-104.} 118 _{Section 61.}

state or parties or organisations, including international organisations, controlling a state or a substantial part of a the territory of a state to prevent the persecution or suffering of serious harm…” Section 65 provides factors that would have to be considered with regard to the reasons for persecution. This Section provides elaboration on each of the five grounds of refugee status. Section 65(e) would provide that a particular social group could include a group based on a common characteristic of sexual orientation, depending on the circumstances in the country of origin. Section 65(f) would provide that gender related aspects could be taken into account in assessing whether an applicant is a member of a social group based on sexual orientation.119

Exclusion and Cessation

Sections 66 and 67 deal with, respectively, exclusion from protection and cessation of protection. Section 66(5) is similar to Regulation 13 of S.I. No. 518 of 2006 (the European Communities (Eligibility for Protection) Regulations 2006) and contrasts with Section 2 of the Refugee Act 1996 in that it provides that a person who has instigated or otherwise participated in the commission of a prescribed act or crime would be excluded from being given protection.

Status in the State

The Bill would provide that applicants for protection would be permitted to remain in the State for the sole purpose of having their protection application investigated.120

Detention of Applicants for International Protection

Immigration officers would be required, if it is practicable, to issue an applicant for protection with an entry permit or, if that is not

119 _{C.f. Section 1 of the Refugee Act 1996, which provides, inter alia, that membership} of a particular social group includes membership of a group of persons whose defining characteristic is their belonging to the female or male sex or having a particular sexual orientation.

120 _{Section 70(1) and (2). C.f., Section 9(2) of the Refugee Act 1996 which provides that} an applicant for refugee status shall be entitled to remain in the State until either his or her transfer pursuant to Council Regulation (EC) No. 343/2003, the date the application is withdrawn, or the date the Minister notifies refusal of a declaration of refugee status.

practicable, arrest and detain the person until an entry permit can be issued, or require him or her to remain in a specified place.121

Section 71 provides for further reasons whereby an applicant for protection can be arrested and detained. This Section is similar to Section 9(8) of the Refugee Act 1996, as amended. An immigration officer or a member of the Garda Siochana may also detain an applicant if the officer or Garda suspects that a protection applicant, immediately before the making of an application, was being, or was to be, removed from the State and has made the application for the purpose of delaying his/her removal from the State or, makes a further protection application.122

While Section 71(7) would provide that the powers to arrest and detain would not apply to people under 18 years of age, Section 71(8) allows for arrest if an immigration officer or a member of the Garda Siochána has reasonable grounds for believing that the person is not under 18. Section 71(14) would provide for the removal of a person detained under the Section who indicates a desire to leave the State. See also section 4.1.1.25 of this section regarding other detention provisions in the Bill.

Protection Procedures

The Bill sets out proposals for new procedures for protection applications.123 _{Applications for protection would be made to the}

Minister for Justice, Equality and Law Reform, rather than to an independent body as is currently the case.124 _{The Minister (and, on}

appeal, the Tribunal) would be obliged to assess the credibility of a protection applicant, and have regard to certain matters in this regard.125 _{This section is similar to Section 11B of the Refugee Act}

1996, as amended. The Minister’s determination of an application for protection would determine whether an applicant is entitled to asylum, subsidiary protection and/or permission to remain in the State.126 _{Where the Minister’s determination cannot be made within}

six months of the application, the Minister would be required, upon request, to provide an estimate of the time it will take for the determination to be made.127

121 _{Section 70.}

122 _{Section 71(g) and (h).}

123 _{Chapter 3 of Part 7, Sections 73-90.} 124 _{Section 73.}

125 _{Section 76.} 126 _{Section 79.} 127 _{Section 79(4).}

Protection Review Tribunal

Under the new Bill, the Minister’s determination could be appealed to the Protection Review Tribunal (PRT). Appointment of the Tribunal Chairperson or a member in a full-time capacity would be by the Public Appointments Service128_{, but the Chairperson of the}

current Refugee Appeals Tribunal would be deemed to be the Chairperson of the PRT and would hold office for the unexpired period of his/her office.129 _{A member appointed to be a member in}

a part-time capacity would be appointed by the Minister.130 _There

are no regulations contained in the Bill specifying how many part- time members will be appointed. The chairperson of the Tribunal would be required to have not less than five years’ experience as a practising lawyer, and the members of the Tribunal not less than five years’ relevant experience.131 _{This contrasts with the}

requirement in the Refugee Act 1996, whereby both the chairperson and the members of the Tribunal are required to have not less than five years’ experience as a practising lawyer.

The chairperson of the Tribunal would have the power to assign and reassign the business of the Tribunal from one member to another, and to request a Tribunal member to review his or her draft decision where it appears to the chairperson that the decision might contain an error of law or fact.132 _{The chairperson would}

have the power to refer, on notice to an applicant, any final decision of the Tribunal to the High Court for that Court’s direction.133 _The

chairperson would be responsible for the conduct of the Tribunal’s functions in relation to any proceedings relating to the transaction of the business of the Tribunal.134

Access to Decisions

Applicants for protection would, at the time of making an appeal, be able to apply for legally-relevant decisions of the Tribunal. Under the new section, legal representatives would no longer be able to access and search a database of decisions. Instead, a legal representative would need to apply to the Chairperson for previous

128 _{Section 92(5).} 129 _{Section 137(5).} 130 _{Section 92(4).} 131 _{Section 91.} 132 _{Section 93.} 133 _{Section 93(9).} 134 _{Section 93(18).}

decisions. The Chairperson would grant access only where the Chairperson considers that the request is reasonable and there exists a decision which is legally relevant to an applicants appeal.135

Where there is more than one legally-relevant decision, and the chairperson is of the opinion that a representative sample of the decisions would serve the requirements of fairness, the making available of such a sample would comply with this Section’s requirements.136 _{The chairperson could also refuse an application}

for legally relevant decisions where the chairperson is satisfied that the request is frivolous or vexatious. An applicant’s legal representative would be required to bring to the Tribunal’s attention any decisions of which the representative is aware that may tend not to support the appeal.137 _{There is also an obligation on the legal}

representative to use the decision given only in support of the applicant’s appeal.138 _{It is an offence not to comply with this}

section.139 _{A person guilty of an offence is liable, on summary}

conviction, to pay a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months, or both or, on conviction on indictment, to a fine not exceeding €500,000 or to imprisonment for a term exceeding 5 years or both.140

Information Regarding Applicants for Protection

Information holders, on request of another information holder, would be required to furnish such relevant information (i.e. about or relating to the entry into, presence in and removal from the State of foreign nationals) as is in the information holder’s possession, control or procurement.141 _{The Minister would be required not to}

disclose information about an applicant to alleged actors of persecution or serious harm.142 _{A foreign national would be}

required to furnish, on demand, any biometric information as may reasonably be required.143 _{Such biometric information will be}

destroyed if the foreign national becomes an Irish citizen.

135 _{Section 95(2)(b) and (c).} 136 _{Section 95(3).} 137 _{Section 95(7).} 138 _{Section 95(8)(b)(i).} 139 _{Section 95(9).} 140 _{Section 119(1).} 141 _{Section 106.} 142 _{Section 107.}

143 _{Section 108: Section 2 defines biometric information as meaning: “information} about the distinctive physical characteristics of a person including: (a) measurements or other assessments of those characteristics, and (b) information about those

Minors

An immigration officer would be required to notify the Health Service Executive (HSE) where a foreign national protection applicant is under 18 years of age.144 _{An interviewer on behalf of}

the Minister and the Protection Review Tribunal would be required to inform the HSE if it considers that an accompanying adult (other than a parent) is not acting in the best interests of a minor.145 _A

protection application for a foreign national child under the care of the HSE would not be made by the HSE unless it is satisfied that it is in the best interests of the foreign national concerned that such an application be made.146

The Minister would be able to dispense with a protection interview of a minor where the Minister is of the opinion that the minor is of such an age and degree of maturity that an interview would not usefully advance the investigation,147 _{but it is stated that this would}

not adversely affect the Minister’s determination of the application.148

The legislation, if enacted, would provide that a protection application would be deemed to be made on behalf of all the dependents of a foreign national under 18 years of age, whether they are present in the State at the time of the application or are born or arrive in the State subsequently.149

4.2 EUI

A

L

This section contains summaries of EU legal instruments relevant to immigration and asylum and asylum law. A comprehensive schedule of relevant EU legislation can be found at Appendix A4.1.150

characteristics held in automated form, and references to the provision by a person of biometric information mean its provision in a way that enables the identity of the person to be investigated or ascertained”.

144 _{Section 73(6).} 145 _{Sections 74(8) and 85(8).} 146 _{Section 73(10).} 147 _{Section 74(10).} 148 _{Section 74(11)(c).} 149 _{Section 73(13).}

150 _{It is well to note the differences between the forms of EU legal measures discussed} here. Regulations set out general rules that apply uniformly throughout the EC. They are binding and directly applicable. They take effect without the need for further enactment and may be relied upon by individuals before national courts. Directives are

All EU legislation must have a legal basis on a particular EC Treaty article. Title IV of the Treaty relates to visas, asylum, immigration and other policies related to free movement of persons, and the EU law referred to in this Section mainly consists of legal measures adopted pursuant to Title IV. Under the terms of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community by the Treaty of Amsterdam, Ireland does not take part in the adoption by the Council of proposed measures pursuant to Title IV of the EC Treaty unless Ireland opts into the measure by notifying the Council that it wishes to take part in the adoption and application of any such proposed measure. Accordingly, whether Ireland has opted into any such measure is noted in the text.

With regard to the immigration agenda of the Amsterdam Treaty, legislation in place includes Directive 2003/86/EC (“The Family Reunification Directive”), Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, and Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents. Although not a Title IV measure, Directive 2004/38/EC (“The Citizenship Directive”) is also discussed. These measures are the focus of section 4.2.1. Section 4.2.2 contains summaries of EU measures dealing with racism, while measures dealing with human trafficking are summarised in section 4.2.3.

With regard to the asylum agenda of the Amsterdam Treaty, five main pieces of legislation have so far flowed from its adoption: Directive 2001/55/EC (“The Temporary Protection Directive”); Directive 2003/9/EC (“The Reception Directive”); Regulation (EC) No. 343/2003 (“The Dublin Regulation”); Directive 2004/83/EC (“The Qualification Directive”); and Directive 2005/85/EC (“The Procedures Directive”). These measures are the focus of section 4.2.4.

binding as to the result to be achieved. They allow individual states discretion as to the means of implementation, whether by legislation or administrative action. Decisions are individual acts addressed to specific individuals or states. They do not require implementation. They are binding in their entirety on those to whom they are addressed. Framework Decisions align the laws of the Member States. They are binding on the Member States as to the result to be achieved but leave the choice of form and methods to national authorities. There is no formal hierarchy between these forms of provision.

4.2.1 Immigration

4.2.1.1 Council Directive 2001/40/EC of 28 May 2001 on the