Special procedural guarantees

Republic of Ireland

Country Report: Special procedural guarantees Last updated: 30/11/20

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Section 58 IPA states that the specific situation of vulnerable persons shall be taken into account when applying Sections 53 to 57 of the International Protection Act. Sections 53 to 57 relate to the rights granted to beneficiaries of international protection including a travel document, family reunification, the issuing of permission to reside in the State and other rights. In effect, therefore, the requirements of Section 57 only relate to persons who are granted refugee status or subsidiary protection, not persons applying for international protection. It remains to be seen how this will be implemented in practice, including whether these provisions may be applied to persons in the status determination process. Anecdotal information indicates that Section 58 has been applied successfully in the case of a minor who aged-out while awaiting a decision on his asylum case, thereby rendering him an adult for the purposes of the new Family Reunification provisions contained in Section 56 IPA. By reference to Section 58, the applicant could be considered vulnerable for the purposes of benefitting from the more favourable family reunification provisions for minors.

 

Adequate support during the interview

 

Section 28(4)(c) IPA states that the protection decision-maker shall take in to account, inter alia, the individual position and personal circumstances of the protection applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts, to which the applicant has been or could be exposed, would amount to persecution or serious harm. The High Court has indicated that a decision maker’s failure to have regard to such individual circumstances may amount to an error of law. In a case in 2013 the High Court quashed a decision of the Department of Justice which refused to grant a national of the Democratic Republic of Congo subsidiary protection on the grounds that, inter alia, the decision maker had failed to adequately consider the individual position and circumstances of the applicant.[1] Similar findings were made in a case involving a Bangladeshi national.[2]

Further, Section 35 IPA requires that persons conducting the personal interviews “are sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability.” There is no publicly available policy reflecting this position and in the experience of the Irish Refugee Council, provisions are made for applicants with special needs on an ad hoc basis and usually subject to intervention from legal representatives or other support workers.

The IPO does not have specialised units or officers dealing with claims by vulnerable groups. Moreover, a group of Panel Members / Caseworkers have received specialised training, based on a module developed by UNHCR, on cases involving unaccompanied children. Only officials who have conducted this training can interview unaccompanied children. The IPO has also issued guidelines on best practices for reporting cases of potential or actual child abuse or neglect (‘Children First Guidelines’) to its staff.[3]

UNHCR conducts several general training sessions for new staff per year and as requested by the relevant authority. Throughout 2017 to 2019, UNHCR has delivered training to agencies that work with international protection applicants, for example the Border Management Unit and the Legal Aid Board, as well as multi-agency training on child protection which included participants from Tusla, the Legal Aid Board, the IPO and IPAT staff, among others. The subjects covered in the training are identified by the needs of the specific authorities. Training covers the international protection determination procedure (refugee definition, subsidiary protection, credibility assessment etc.), child protection training (best interests assessment, child-specific protection determination procedures, child-specific procedural safeguards etc.) and training on particular topics such as asylum claims related to sexual orientation and/or gender identity.[4] Anecdotal evidence indicates that training for IPO panel members in relation to claims related to sexual orientation and/or gender identity was not mandatory.

Other NGOs, such as Spiritan Asylum Services Initiative (SPIRASI) also provide training on working with victims of torture, however such training is conducted on an ad-hoc basis upon request. SPIRASI have indicated to the State that they would be open to providing training for the early identification of victims of torture but such a facility does not exist at present.[5]

The Irish Refugee Council provides dedicated early legal advice to applicants who are deemed vulnerable or in particular need on a case by case basis and subject to organisational capacity at the time.

It should be noted that Ireland has opted in to the first iteration of the Asylum Procedures Directive, which requires that officials carrying out the personal interview of the applicant be suitably ‘competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability.’[6] Besides general training received by all IPO staff, there is no specific reference to vulnerability identification in the IPA and, in practice, there does not seem to be a systematic approach to identification or addressing the needs of vulnerable persons in advance of the substantive interview. As mentioned above, despite being Irish law since July 2018, there have been no vulnerability assessments as required by the reception conditions directive.  However, the Irish Refugee Council understands that a number of High Court cases have been instituted on the basis of the lack of a vulnerability assessment.  

 

Prioritisation and exemption from special procedures

 

Accelerated procedures do not apply to unaccompanied children but their applications may be prioritised by the IPO. Section 73 IPA grants the Minister power to ‘accord priority to any application’ or request the International Protection Appeals Tribunal Chairperson to prioritise any appeal, having regard to inter alia ‘whether the applicant is a person in respect of whom the Child and Family Agency is providing care and protection.’[7]

In accordance with Section 73 IPA, the IPO (in consultation with UNHCR Ireland), issued a statement setting out prioritisation procedures for scheduling the substantive interviews of certain categories of applicant in February 2017, which remains in effect as of January 2020.[8] Under this note, when considering whether to prioritise an application, the IPO may have regard to certain categories of vulnerable applicants with respect to: the age of the applicant (specifically unaccompanied children in the care of Tusla; applicants who applied as unaccompanied children, but who have now aged out; applicants over 70 years of age, who are not part of a family group) and applicants with serious health grounds requiring prioritisation (specifically, applicants who notify the IPO after the commencement date that evidence has been submitted, certified by a medical consultant, of an ongoing severe/life threatening medical condition will be prioritised). Given that there is no formal vulnerability identification mechanism at any stage in the applicant process, the onus will be on the applicant and/or their representative to request prioritisation.

 


[1] High Court, E. D-N, L. D. S v Minister for Justice and Equality [2013] IEHC 447, Judgment of 20 September 2013.

[2] High Court, Barua v Minister for Justice and Equality [2012] IEHC 456, Judgment of 9 November 2012.

[3] Information provided by IPO, August 2017.

[4] Information provided by UNHCR, January 2018.

[5] Information provided by SPIRASI, August 2017.

[6]  Article 13(3)(a) recast Asylum Procedures Directive.

[7] Section 73(2)(i) IPA.

[8] IPO and UNHCR, ‘Prioritisation of Applications for International Protection under the International Protection Act 2015’, 27 February 2017, available at: http://bit.ly/2m1Plbi.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX – Transposition of the CEAS in national legislation