The Irish asylum process sits outside the court system. Immigration matters are dealt with on an administrative basis by the Minister for Justice and Equality. In accordance with the Constitution, justice is administered in public, in courts established by law, with judges appointed by the President on the advice of the Government. Independence is guaranteed in the exercise of their functions. The Irish court system is hierarchical in nature and there are five types of courts in Ireland, which hear different types and levels of cases. In ascending hierarchical order, these are:
• the District Court; • the Circuit Court; • the High Court; • the Court of Appeal; • the Supreme Court.
The relevance of the courts in relation to asylum and immigration cases is generally limited to judicial review.28 Judicial review focuses on assessing the determination process through which a decision was reached to ensure that the decision-maker made their decision properly and in accordance with the law. It does not look to the merits or the substance of the underlying case.29
As discussed in previous reports in this series, prior to the mid-1990s Irish asylum and immigration legislation was covered under such instruments as the Hope Hanlon procedure and the Aliens Act 1935 (and Orders made under that Act),30 together with the relevant EU free movement Regulations and Directives31 which
27 www.irishaid.ie.
28 There is a statutory appeal to the courts against decisions to revoke refugee status under section 52 of the International
Protection Act 2015.
29 Available at www.citizensinformation.ie.
30 Aliens Order 1946 (S.I. No. 395 of 1946); Aliens (Amendment) Order 1975 (S.I. No. 128 of 1975).
31 Relevant EU legislation included Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC on freedom of
movement for workers within the Community, 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, 72/194/EEC on the right of citizens of the
came into effect in Ireland after it joined the European Union in 1973. Following a sharp rise in immigration flows from the mid-1990s, several pieces of legislation were introduced to deal with immigration and asylum issues in Ireland.
The International Protection Act 2015 sets out the domestic legal framework regarding applications for international protection and replaces the Refugee Act 1996 (as amended) and the European Communities (Subsidiary Protection) Regulations 2013 (as amended). The Refugee Act 1996 was largely repealed, apart from some transitional provisions. While Ireland participated in some of the first generation of instruments under the Common European Asylum System (the Qualification Directive 2004/83/EC and Procedures Directive 2005/85/EC), Ireland does not participate in the ‘recast’ Qualification Directive (2011/95/EU) and Procedures Directive (2013/32/EU). Ireland does not participate in the original Reception Conditions Directive (2003/9/EC). Ireland has opted into the revised Reception Conditions Directive (2013/33/EU), and the European Communities (Reception Conditions) Regulations 2018 came into operation on 30 June 2018.32,33 Ireland is also a signatory to the ‘Dublin Convention’, and is subject to the ‘Dublin Regulation’ which determines the EU Member State responsible for processing asylum applications made in the EU. Regulation 604/201334 (‘the Dublin III Regulation’) came into force on 29 June 2013. The European Union (Dublin System) Regulations 2014 were adopted for the purpose of giving further effect to the Dublin III Regulation. These regulations were amended by the European Union (Dublin System) (Amendment) Regulations 2016 in 2016.35
S.I. No. 310 of 2008 amended the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006) following the Metock judgment of the European Court of Justice (ECJ). The European Community (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) which came into operation on 1 February 2016 give further effect to EU Directive 2004/38/EC and revoke the 2006 Regulations, subject to transitional provisions.
Union and their family members to move and reside freely within the territory of the Member States, 73/148/EEC on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, 75/34/EEC concerning the right of nationals of a Member State to remain in the territory of another Member State after having pursued therein an activity in a self-employed capacity, 90/364/EEC on the right of residence, 90/365/EEC on the right of residence for employees and self-employed persons who have ceased their occupational activity, and 93/96/EEC on the right of residence for students.
32 S.I. No. 230 of 2018.
26 Note that the European Commission in July 2016 launched proposals to replace the Asylum Qualifications and
Procedures Directives with Regulations and to further recast the Reception Conditions Directive.
34 Regulation (EU) No. 604/2013 (Dublin III Regulation) lays down the criteria and mechanisms for determining the
Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person. See EMN Asylum and Migration Glossary 3.0, available at www.emn.ie.
Introduction | 11
Domestic immigration law in Ireland is based on various pieces of legislation including the Aliens Act 1935 and Orders made under it; the Illegal Immigrants (Trafficking) Act 2000; and the Immigration Acts 1999, 2003 and 2004. The Employment Permits Act 2006 as amended and secondary legislation made under it set out the legal framework for the employment permits schemes in Ireland. Regarding the situation of Ireland concerning an ‘opt-in’ provision on EU measures in asylum and migration, under the terms of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union and to the Treaty on the Functioning of the European Union (TFEU), Ireland does not take part in the adoption by the Council of proposed measures pursuant to Title V of the TFEU unless it decides to participate in the measure pursuant to a motion of the Houses of the Oireachtas. Under Declaration number 56 to the TFEU, Ireland has declared its
firm intention to exercise its right under Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice to take part in the adoption of measures pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union to the maximum extent it deems possible.36
36 Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the
area of freedom, security and justice (TFEU). Ireland also ‘affirms its commitment to the Union as an area of freedom, security and justice respecting fundamental rights and the different legal systems and traditions of the Member States within which citizens are provided with a high level of safety’. An example is Ireland’s participation in Council Directive 2005/71/EC (‘the Researchers’ Directive’).