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 developing a vulnerability assessment procedure 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.
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 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 programme.
The pilot scheme initially assessed applicants seeking accommodation from the State and was subsequently extended to all new applicants seeking international protection. The pilot project remained under review throughout 2021. According to Minister for Children Equality, Disability, Integration and Youth, Roderic O’Gorman, the ongoing assessment will inform any further development of the vulnerability assessment process.
The Vulnerability Assessment process begins with an initial screening interview during which the applicant is asked a standard list of assessment questions based on the various categories of vulnerability identified in Article 21 the EU Reception Conditions Directive and the Irish Regulations. These categories include minors, unaccompanied minors, disabled persons, elderly persons, pregnant people, single parents with minor children and victims of human trafficking, persons subject to serious illness, persons with mental disorders and persons who have been subjected to torture, rape or other forms of serious violence. If this initial assessment indicates that the applicant may be vulnerable, an IPAS social worker may conduct a further, more in-depth assessment. Taken together, these assessments are used to determine whether the applicant has special reception needs arising from any vulnerabilities identified.
While the introduction of the programme is certainly a welcome development, the Irish Refugee Council has a number of concerns in respect of both the process and procedure by which vulnerability assessments are currently being conducted. In particular, various inconsistencies were observed in the manner in which assessments are carried, with some applicants being required to undergo the two-stage assessment process, while others only a single assessment. The Irish Refugee Council noted that following the first assessment, a number of applicants experienced delays in awaiting their second assessment. The length of such delays varied from a couple of weeks, up to 3.5 months in one case. This often occurs in circumstances where vulnerable applicants are unable to access the reception supports they require, thus leading to further distress and traumatisation.
Another issue which arose in a number of cases was the refusal on the part of IPAS to facilitate further assessments where new information is provided by applicants in relation to their vulnerability. Additionally, for cases in which a specific vulnerability was registered, applicants were often not provided with suitable supports in line with their identified needs.
From February 2021 to January 2022, 686 vulnerability assessments were undertaken, and 438 applicants were identified as having some form of vulnerability. Of those identified as vulnerable, 30% were minors, 31% were persons who have been subjected to torture, rape or other forms of serious psychological, physical or sexual violence and 12% were persons identified as vulnerable because they had a serious illness. 9% were single parents with minor children and 8% were persons with mental health concerns. Other vulnerabilities related to being pregnant (3%), a victim of human trafficking (3%), a member of the LGBTI+ community (2%), a person with a disability (2%) or being an unaccompanied minor (0.3%).
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, previously highlighted the ‘considerable concerns about Tusla’s age assessment procedures’, more specifically connected to the fact that no sufficient guarantees are in place with respect to age assessment procedures. The organisation was made aware of cases in which age disputed minors were accommodated 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.
In correspondence with the Irish Refugee Council in February 2022, it was confirmed that Tusla does not currently have a national policy or approved internal guidelines on age-assessments for use in determining the age of unaccompanied minors or separated children referred from IPO or Dublin Airport. The reason given for this was that there exists no provision in legislation for Tulsa to conduct such assessments. The relevant legislation for undertaking such assessments is the International Protection Act 2015, which confers the responsibility for conducting age assessments on the Minister for Justice. Thus, according to Tusla, the conducting of such assessments is not part of its statutory function.
Whereby cases are referred to Tusla, an assessment is undertaken in order to determine the eligibility of the young person for the provision of services under The Child Care Act, i.e., whether the individual is in need of the care and protection of Tusla. Determination of age is made giving benefit of the doubt where there may be insufficient supporting documentary evidence. If the individual is deemed not to be a child, they are then referred to the IPO in order to claim international protection.
It was noted that Consideration was given to developing guidance to support staff in the area of age assessments, however, following a deliberative process and legal advice this was not progressed into approved national policy or guidance for the agency. Tusla are currently engaged in a further deliberative process in conjunction with its operational and legal services to determine an eligibility criteria for receipt of Tusla services. This draft procedure will be published once finalised and approved by Tusla’s National Policy Oversight Committee.
 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.
 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.
 Emma Quinn, Corona Joyce, Egle Gusciute, European Migration Network, Policies and Practices on Unaccompanied Minors in Ireland, November 2014.
 ibid, 35.
 ibid, 13.
 Information provided by Tusla, August 2017.
 Information provided by Tusla, August 2022.