Author
The International Protection Act 2015 (IPA) is Ireland’s key legislative instrument enshrining the State’s obligations under international refugee law. The final version of the IPA was signed into law by the President of Ireland in December 2016 and officially commenced on 6 January 2017.[1] Five years on from the commencement of the act, the IPO has now dealt with the “backlog” of transitional cases. Prior to the outbreak of COVID-19, persons whose circumstances fell outside the prioritisation criteria were likely to be waiting between 8 and 10 months for their substantive interview, whilst applicants who successfully requested prioritisation were interviewed within 4 to 5 months of their initial application.[2] Generally, a person whose case was not prioritised could expect to receive a recommendation on their application within 15 months of claiming protection, while an individual whose case fell within the prioritisation criteria could expect to be waiting 9-10 months.[3]
Throughout 2022, the median processing time for first instance decisions was approximately 18 months for all cases.[4] This marks a slight overall decrease on the previous reporting period. (23 months for non-prioritised applications and 14 months for prioritised applications). However, processing times remained lengthy in view of the commitment by the Department of Justice to reduce the overall processing time to 6 months in line with the recommendations of the Expert Advisory Group.[5] The median waiting period for appeals before the IPAT was 10.5 months.[6]
The IPA introduced a single procedure where refugee status, subsidiary protection, and permission to remain are all examined together in one procedure compared to the previous bifurcated system under the Refugee Act, 1996. Under the IPA, an application for international protection may be lodged either at the port of entry, or directly at the International Protection Office (IPO). The application should be lodged at the earliest possible opportunity as any undue delay may prejudice the application.[7] If the applicant made a claim for international protection status at the port of entry, they must proceed to the IPO to complete the initial asylum process and attend a preliminary interview under Section 13 IPA.
Application
Upon lodging an application for international protection, the applicant first fills out an application form and is given a short preliminary interview conducted either by an international protection officer, or by an immigration official – depending on where the application is lodged.
Under Section 21 IPA an application for international protection may be found inadmissible and a recommendation shall be made to the Minister by an international protection officer to this effect. Inadmissibility decisions are made on the grounds that another Member State has granted refugee status or subsidiary protection status to that person, or a country other than a Member State is considered to be a “first country of asylum” for that person.[8] A person has the right to an appeal to the International Protection Appeals Tribunal (IPAT) regarding an inadmissibility decision.
Under the revised international protection procedure, as of the 8th of November 2022, an applicant attending at the IPO in order to make an application for international protection is now required to complete their International Protection Questionnaire (IPO2) onsite, in addition to completing their preliminary interview.[9]
The application questionnaire shall include, as held in Section 15(5) IPA, all relevant information pertaining to the grounds for the application, as well as relevant information pertaining to permission to remain for the applicant, family reunification and right to reside for family members already present in the State, in case such considerations arise at later stages in the process. The information provided in the detailed application form will be duly considered throughout the assessment of the application, including in the applicant’s substantive interview. Given the weight afforded to information provided in this questionnaire in determining the outcome of a person’s application, the IPO recommends that applicants seek legal advice before completing the questionnaire.[10] In this respect, applicants are encouraged to avail themselves of the services of the State-funded Legal Aid Board, which can provide legal advice on the international protection process. However, the extent to which the Legal Aid Board is able to assist prior to the submission of the questionnaire is unclear, particularly having regard to the introduction of the revised procedure.
Throughout 2022, the Irish Refugee Council’s Independent Law Centre provided ongoing legal representation for 280 international protection applicants. 48 clients received refugee status in 2022, while 24 received permission to remain. 67 clients were represented in family reunification applications, while a further 22 clients were reunited with their families following positive family reunification decisions.[11]
Dublin Regulation
An application for international protection status may be subject to the Dublin Regulation by the IPO if it appears that another Member State may be responsible for the examination of the protection application.[12] During the initial appointment at the IPO, an applicant’s fingerprints are taken and are entered in to the Eurodac database. The applicant is also advised that they may obtain legal assistance from the Legal Aid Board. As per the regular procedure, the applicant is issued a Temporary Residence Certificate and referred to the International Protection Accommodation Service (IPAS) for accommodation if they have no other means of accommodating themselves. At this point, the applicant will be taken to an IPAS reception centre in Dublin and later dispersed elsewhere to another Direct Provision centre. If the applicant’s details are flagged on the Eurodac database, they may be called for a personal interview to assess the applicability of a transfer to another responsible Member State.[13]
Throughout 2022, there were 24 outgoing transfer decisions made pursuant to the Dublin Regulation, while a total of 3 people were returned pursuant to a transfer order.[14]
Regular procedure
After registering at the IPO and submitting the questionnaire, applicants are notified by post of the date and time of their substantive interview before the IPO. The purpose of the interview is to establish the full details of their claim for international protection. Under the revised procedure, applicants from ‘safe countries of origin’ will now undergo their substantive interview within four to six weeks of making their initial international protection application. It should also be noted that, pursuant to the relevant regulation, this accelerated procedure may also be applied to any application subject to the need for fairness and efficiency and whereby the International Protection Office considered to be necessary and expedient.[15] The applicant may have a legal representative and an interpreter present at the interview, if necessary.
After the substantive asylum interview, a so-called draft “s.39” report is compiled by the authorised officer based on the information raised at the interview and that provided in the application questionnaire, as well as relevant country of origin information and/or submissions by UNHCR and/or legal representatives. The draft report must then be considered and finalised by a civil servant within the IPO and once this has been done a recommendation is issued from the IPO. The finalised recommendation (s.39 report) contains a recommendation as to whether or not status should be granted:
- If a positive recommendation is made with regard to refugee status, the applicant is notified and the recommendation is submitted to the Minister for Justice, who makes a declaration of refugee status.
- If a positive recommendation is made with regard to subsidiary protection, the applicant is notified and the recommendation is submitted to the Minister for Justice, who makes a declaration of subsidiary protection. The applicant can also seek an upgrade appeal to the International Protection Appeals Tribunal (IPAT) for refugee status.
- If the recommendation is negative, the applicant is provided with the reasons for such a decision. The implications of a negative recommendation depend on the nature of the recommendation. The applicant will be advised of their right to appeal any negative decision before IPAT and their right to seek legal advice if they have not done so already. Under the single procedure, where a person is found ineligible for refugee status or subsidiary protection, the decision-maker also considers whether or not there are humanitarian grounds to recommend a grant of permission to remain. This decision is made on the basis of information provided in the applicant’s questionnaire, as well as in any submissions made by or on behalf of the applicant throughout the procedure. There is no right of appeal on permission to remain decisions.
Appeal
Under the IPA an applicant may make an appeal to the IPAT against: (i) a recommendation that the applicant should not be given a refugee declaration; or (ii) a recommendation that the applicant should be given neither a refugee declaration nor a subsidiary protection declaration. An appeal under those two categories may be lodged before the IPAT in writing, laying out the grounds of appeal within a time limit prescribed by the Minister under Section 41(2)(a) IPA. They may request an oral hearing before the IPAT; if an oral hearing is not requested the appeal will be dealt with on this basis of the papers unless a member of the Tribunal finds it in the interests of justice to hold such an oral hearing. Free legal representation can be obtained through the Legal Aid Board. The deadline for submitting an appeal will be prescribed by the Minister in consultation with the Chairperson of the IPAT.[16]
If the IPAT decides to set aside the IPO decision, the file will also be transferred to the Department of Justice so the Minister can declare the applicant a refugee or a beneficiary of subsidiary protection. If the IPAT decides to affirm the IPO decision, the individual will be sent a notice in writing stating that the application for a declaration as a refugee and/or subsidiary protection beneficiary has been refused. If an application for international protection is ultimately unsuccessful the applicant will be sent a notice in writing stating that the application for international protection has been refused and that the Minister proposes to make a deportation order under Section 3 of the Immigration Act 1999 requiring that the person leave the State within a given timeframe.
Throughout all stages of the asylum process, prior to receiving a final decision on their claim, the applicant is encouraged to inform the IPO of any circumstances arising that may give rise to the Minister granting the applicant permission to remain in the event that the applicant has been denied both refugee status and subsidiary protection. This status is commonly referred to as ‘leave to remain’ and takes account of criteria such as humanitarian considerations and/or the person’s connections to the State in order to determine whether or not there are compelling reasons to allow the person permission to remain in Ireland. This assessment is conducted in the event that both a claim for refugee status and subsidiary protection are ultimately refused. However, permission to remain can also be issued at first instance at the IPO examination stage and there is an opportunity to put forward any preliminary grounds for permission to remain in a dedicated section of the application questionnaire. The applicant has the right to submit any information relating to their permission to remain (or consideration for international protection more generally) at any point after the submission of their questionnaire. There is no oral hearing with regard to permission to remain at the interview stage at first instance, but it is important that the applicant includes all relevant information in writing concerning their grounds for being granted permission to remain. It is important to note that if an applicant is refused permission to remain, they do not have a right to appeal this decision.
An applicant may seek to have a refugee or subsidiary protection recommendation of the IPO or a decision of the IPAT judicially reviewed by the High Court under Irish administrative law, for example where there has been an error of law in the determination process. It is expected that an applicant will exhaust all available remedies before applying for judicial review and, therefore, most judicial reviews are of appeal recommendations, rather than first instance decisions. Applicants must be granted permission (known as leave) to apply for judicial review before proceeding to a full judicial review hearing.
The High Court can affirm or set aside the decision of the first instance or appellate body. If the applicant is successful, their case is returned to the original decision-making body for a further determination. Because of the volume of judicial review cases that have been brought to challenge decisions over the last number of years, and the procedure of having both pre-leave and full hearings, there is a large backlog of cases awaiting determination.
The latest available statistics demonstrate a further decrease in new asylum cases lodged before the High Court, down from 355 in 2020 to 300 in 2021. A total of 377 cases were decided by the High Court, with a total of 251 cases settling outside of Court, marking a 110% increase in the number of asylum matters resolved by the Court compared with the previous year.[17] Statistics in relation to asylum cases lodged in 2022 are expected to be published in the Courts Service Annual Report in July 2023.
[1] International Protection Act 2015 (Commencement) (No. 3) Order 2016.
[2] IPO Customer Service Liaison Panel (CSLP) Meeting, December 2019
[3] Minister for Justice Charles Flanagan, Response to Parliamentary question No 384, 16 June 2020, available at: https://bit.ly/3bDNZNb.
[4] Acting Minister for Justice Simon Harris, Response to Parliamentary Question No 558, 31 January 2023, available at: https://bit.ly/3X56bmM.
[5] Department of Justice, Ministers announce new immigration reform measures, 14 October 2021, available at: https://bit.ly/3tm4HJS.
[6] Information provided by IPAT, January 2023.
[7] Section 28(7)(d) IPA.
[8] A first country of asylum is defined under Section 21(15) IPA.
[9] International Protection Office, ‘The European Communities (International Protection Procedures) Regulations 2022 and the International Protection Act 2015 (Procedures and Periods for Appeals) (Amendment) Regulations 2022 – Information Note’, 8th November 2022, available at: https://bit.ly/3jyYBTI.
[10] ibid, para. 3.7.2.
[11] Information provided by the Irish Refugee Council Independent Law Centre, December 2022.
[12] S.I. No. 62 of 2018 European Union (Dublin System) Regulations 2018.
[13] Regulation 4 European Union (Dublin System) Regulations 2018.
[14] Acting Minister for Justice Simon Harris, Response to Parliamentary Question No. 565, 31 January 2023, available at: https://bit.ly/3lkY5cw.
[15] International Protection Office, ‘The European Communities (International Protection Procedures) Regulations 2022 and the International Protection Act 2015 (Procedures and Periods for Appeals) (Amendment) Regulations 2022, available at: https://bit.ly/3mnDwg4.
[16] Section 77 IPA.
[17] Courts Service, Annual Report 2021, 28 July 2022, available at: https://bit.ly/3iUYf9T.