Section 58(1) IPA defines as vulnerable persons individuals ‘such as persons under the age of 18 years (whether or not accompanied), disabled persons, elderly persons, pregnant women, single parents with children under the age of 18 years, victims of human trafficking, persons with mental disorders and persons who have been subjected to torture, rape, or other serious forms of psychological, physical or sexual violence.’ The provision, however, applies solely to the application of Sections 53 to 57, which refer to content of international protection.
Screening of vulnerability
Prior to January 2021, there was no formal mechanism for the identification of vulnerable people, except for unaccompanied children under the IPA. The government had considered the development of a ‘Vulnerability Assessment’ for newly arrived protection applicants, in order to implement the recommendations of the June 2015 Working Group Report on improvements to the protection process prior to the reform brought about by the IPA. In relation to the recommendations of the Working Group report on the Protection Process, the government’s progress report referenced implementation of the following recommendation in June 2016 by the Health Services Executive (HSE) and IPAS: The establishment of formal mechanisms of referral in the case of disclosed or diagnosed vulnerabilities to ensure that such persons are provided with appropriate information, health or psychological services and procedural supports. The immigrant support organisation, Nasc, in their in-depth evaluation of the government’s progress reports, conducted in December 2017, found this recommendation to not have been progressed at all, with requests for information from key agencies yielding ‘no evidence of the development of a formal system of referral’ for vulnerable applicants.
It should be noted that Regulation 8 of the Reception Conditions Regulations states that the Minister “shall” determine “within 30 working days” of an applicant expressing their desire to claim international protection, or “may at any stage” during the procedure assess whether an applicant is a vulnerable person with special reception needs and what the nature of those needs are. The Irish Refugee Council, in its submission on the transposition of the recast Reception Conditions Directive, recommended that the State provide for an overlap between a mechanism identifying special reception needs with special procedural needs. However, the regulations do not provide for any consideration of special needs throughout the asylum procedure and define someone in need of “special reception needs” as someone needing “special guarantees in order to benefit from his or her entitlements” under the Regulations only.
In July 2020, the Irish Refugee Council Independent Law Centre was granted leave to seek judicial review by the High Court so as to challenge the State’s failure to carry out vulnerability in accordance with Ireland’s obligations under the Reception Conditions Directive in respect of two individuals. These matters were subsequently settled and it was confirmed by the State that four individuals had undergone vulnerability assessments as part of a pilot program.
According to information received from the Department of Children, Equality, Disability, Integration and Youth Affairs in April 2021, the pilot program has now been extended to all new applicants for international protection. Over 100 applicants have now been assessed and vulnerabilities have been identified in approximately 60% of cases so far. While the introduction of the programme is a welcome development, migrants’ rights organisations have expressed concern that the pilot project falls short of national standards and fails to include situations whereby individuals could be at risk of suicide, addiction or domestic violence.
Age assessment of unaccompanied children
Section 14 IPA states that where it appears to an immigration officer or an officer of the IPO that a child under the age of 18 years, who has arrived at the frontiers of the State or has entered the State and is not accompanied by an adult who is taking responsibility for the care and protection of the child, the officer shall inform, as soon as practicable, the Child and Family Agency (Tusla) and thereafter the provisions of the Child Care Act 1991 apply.
Under the system governed by the Refugee Act 1996, interviews and age assessment tools were used to assess age and no statutory or standardised age assessment procedures appeared to be in existence. In the asylum procedure ORAC would firstly form an opinion of the age of the person presenting to claim asylum prior to any referral to Tusla. Medical assessments were not carried out to determine age. Tusla would then conduct a general child protection risk assessment which would explore age as part of that assessment. They used a social age assessment methodology which included questions about family, education, how the young person travelled to Ireland, etc. The social worker assessed the young person’s age based on how articulate they are, their emotional and physical developmental, etc. However, ORAC made the final decision as to the person’s age.
Previously, where the assessment could not establish an exact age, young people were not generally given the benefit of the doubt. If someone seemed over 18, even by a day, there was typically a decision to move the young person into adult accommodation.
The IPA contains a number of provisions relating to age assessment and identification of unaccompanied children. Section 24 IPA allows the Minister, or an international protection officer to arrange an examination to determine the age of an applicant to see if he/she is under the age of 18 years. An examination is required to be:
- performed with full respect for the applicant’s dignity,
- consistent with the need to achieve a reliable result, the least invasive examination possible, and
- where the examination is a medical examination, carried out by a registered medical practitioner or such other suitably qualified medical professional as may be prescribed.
The consent of the applicant and/or the adult responsible for him or her including an employee or other person appointed by Tusla is required for the age examination. Section 24(6) IPA requires that the best interests of the child is a primary consideration when applying Section 24. Section 25 also provides for an age examination to take place under the direction of a member of the Garda Síochána (national police) or immigration officer if they request the Minister to carry out such an examination when an applicant in detention appears to be under the age of 18 years. Detention for unaccompanied children is prohibited but detention may occur under Section 20(7)(a) IPA if two officials – two members of the Garda Síochána or immigration officers, or one member of the Garda Síochána and one immigration officer – believe the applicant is over 18 years pending an age examination.
The immigrant support organisation, Nasc, has previously highlighted the ‘considerable concerns about Tusla’s age assessment procedures, or more specifically when their age assessment procedures are not being called upon, as we are aware of cases where age disputed minors end up in Direct Provision centres, with no access to appeal the initial age assessment, which is usually conducted at the frontiers of the State, and therefore unable to access the support and aftercare provided to separated children.’ Neither the IPO nor Tusla collect statistics on age assessments conducted in Ireland.
 Report of the Working Group to Report to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers, Third and final progress report on the implementation of the Report’s recommendations, June 2017, available at: http://bit.ly/2w12bLC, 12.
 Nasc, Nasc Working Paper on the Progress of Implementation of the McMahon Report, December 2017, available at: https://bit.ly/3dm40FF, 27.
 Regulation 8 Reception Conditions Regulations 2018.
 Irish Refugee Council, Recommendations on the Transposition of the EU recast Reception Conditions Directive (2013/33/EU), March 2018, available at: https://bit.ly/2Bbt43N.
 Information obtained from Department of Children, Equality, Disability, Integration and Youth Affairs, April 2021.
 Irish Examiner, ‘Nasc: State’s Pilot Project on Vulernability of Asylum Applicants is too Limited’, 11th February 2021, available at: https://bit.ly/3sfKjWo.
 Emma Quinn, Corona Joyce, Egle Gusciute, European Migration Network, Policies and Practices on Unaccompanied Minors in Ireland, November 2014.
 Ibid, 35.
 Information provided by Tusla, August 2017.