Dublin

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General

Dublin statistics: 2020

Source: IPO, February 2021

Source: IPO, February 2021

Source: IPO, February 2021

The Dublin Regulation is implemented by the Dublin Unit of the IPO. The unit is responsible for determining whether applicants should be transferred to another State or have their application assessed in Ireland. The unit also responds to requests from other Member States to transfer applicants to Ireland. The Arrangements Unit of the Immigration Service Delivery is responsible for handling outgoing transfers under the Dublin Regulation.

The European Union (Dublin System) Regulations 2018 (S.I. No. 62 of 2018) were adopted in 2018.

Procedure

As part of the general application procedure, all applicants are photographed and fingerprinted, (with the exception of applicants believed by the relevant officer to be under the age of 14 years old and not accompanied by a parent or guardian) during their initial interview with the IPO (see section on Registration). As part of the process applicants and dependent children are required to have photographs taken. They are also required to have their and their dependent children’s fingerprints taken. Fingerprints may be disclosed in confidence to the relevant Irish authorities and to asylum authorities of other countries which may have responsibility for considering the application under the Dublin Regulation.

Section 19 IPA sets out the procedure for members of the Garda Síochána or immigration officers to take fingerprints for the purposes of (a) establishing the identity of a person for any purpose concerned with the implementation of the IPA, and (b) checking whether the person has previously lodged an application for international protection in another Member State.[2] Where a person refuses to provide their fingerprints, they shall be deemed not to have made reasonable efforts to establish their identity and shall be deemed to have failed to fulfil their obligation to cooperate with the application process.[3] The IPA does not legislatively provide for the use of force to take fingerprints, however, as not volunteering to provide fingerprints is viewed as a failure to make reasonable efforts to establish one’s identity (in line with Section 20(1) IPA setting out grounds for detention), applicants who refuse to be fingerprinted may be detained.

In relation to specific guarantees for children in the Dublin procedure, the IPO is required under Regulation 3(b) of the European Union (Dublin System) Regulations 2018 to consult with Tusla, the Irish Child and Family Agency, on the best interests of the child particularly with respect to the child’s well-being and social development and the views of the child. No information is available on the practice under the new single procedure.

Following the implementation of measures to restrict the spread of Covid-19, the International Protection Office cancelled all interviews in accordance with Article 5 of the Dublin Regulation in line with Government guidelines. The International Protection Appeals Tribunal suspended all Dublin Regulation Appeals in a similar manner. Ireland has nevertheless continued to request other responsible EU Member States to ‘take charge’ of any identified applicant. Other Member States who identify that Ireland is responsible for an applicant have, throughout the pandemic, continued to apply the Dublin process to Ireland.[4]

Transfers under the regulation continued, albeit at lower numbers. Statistics provided by the IPO indicate that a total of 8 individuals were transferred in 2020. These transfers occurred notwithstanding a stay being placed on the vast majority of deportations for the duration of the Covid-19 pandemic. The Government justified the continuation of transfers on the basis that no deportation order is made in respect of Dublin III cases and the individual concerned is not returned to their country of origin.[5] As of June 2020, the IPO had suspended the issuing of decisions pursuant to the Dublin process owing to Covid-19 restrictions.[6] Anecdotal evidence indicates that the IPO has resumed the issuing of such decisions.

Personal interview

At any time during the initial asylum process, the IPO may determine that a person is subject to the Dublin III Regulation and hold a personal interview where necessary to conduct the Dublin procedure.[7]

Limited information is available on how Dublin procedure interviews are conducted in practice but applicants are provided with the common information leaflet stating that they are in the Dublin procedure. However, it is not always clear that the asylum seeker understands that they are having a specific Dublin procedure interview. Anecdotal evidence continues to suggest that Dublin procedure interviews are presented merely as an interview just asking questions about the person’s journey to Ireland without fully explaining the implications in terms of which country is responsible for the person’s asylum application and that it means that the person may be transferred there. The onus is placed on the asylum seeker to be able to read the Dublin information leaflet rather than ensuring that it is properly explained by the caseworker and not the interpreter at the Dublin personal interview.

Appeal

The appeal against a transfer decision must be lodged within 10 working days and has suspensive effect.[8]

The IPAT shall have regard to both the facts and law when considering appeals under the Dublin III Regulation. This is in accordance with Article 27 of the Dublin III Regulation which requires that a person shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a Court or Tribunal.

If the IPAT overturns the decision of the IPO, the applicant and their legal representative and the Commissioner and Minister are notified in writing. The IPAT may either affirm or set aside the transfer decision. When submitting a Dublin appeal to the IPAT, the person concerned can request that an oral hearing is conducted and the Tribunal may also hold an oral hearing even if the person concerned has not requested it if the IPAT is of the opinion that it is in the interests of justice to do so. No information is available on the current practice as the Irish system recently changed under the IPA.

There is no onward appeal of an IPAT decision on the Dublin Regulation, however, judicial review of the decision could be sought. There has been a long running issue over the remit of the IPAT’s appeal and whether they can apply the sovereignty clause under Article 17 themselves. In November 2017, the High Court referred a number of questions to the Court of Justice of the European Union (CJEU) on the application of the Dublin Regulation including on the issue of application of Article 17.

Some of the questions referred included: whether the words “determining Member State” in the Dublin III Regulation includes a state exercising an Article 17 function and whether the functions of a Member State under Article 6 (best interests of the child) include the discretion under Article 17 not to transfer. The CJEU delivered its ruling in January 2019 and stated that Member States are free to entrust to different authorities the task of applying the criteria defined by that Regulation relating to the determination of the Member State responsible and the task of applying the discretionary clause set out in that Regulation.[9] The Court of Appeal, considered this issue in the case N.V.U & Ors -v- The Refugee Appeals Tribunal & Ors[10]. Justice Baker stated, in a judgment delivered in June 2019, that she was not persuaded that the arguments made by the Irish Government that justify a departure from the plain meaning of the Irish Regulations of 2014, and that the jurisdiction to exercise the discretion to assume jurisdiction for which provision is made in article 17(1) is in a suitable case one that may be exercised by the determining body, now IPO and IPAT.

This decision was subsequently appealed by the State to the Irish Supreme Court. In a judgment delivered on 24 July 2020, Justice Charleton held that the discretionary power established pursuant to Article 17 had not been vested in the International Protection Office and in turn, the International Protection Appeals Tribunal, by virtue of Regulation 3(1) (a) of the EU (Dublin System) Regulations 2014. Consequently, it is now evident that the Minister for Justice retains sole discretion in considering the transfer of applications pursuant to Article 17 of the Dublin III Regulation.[11]

Following the ruling, the precise position regarding the procedure for making an appeal pursuant to Article 17 remains ambiguous. In this regard, the practice of the Irish Refugee Council Independent Law Centre has been to make ad-hoc submissions on behalf of clients directly to the Minister for Justice.

In January 2021, following engagement with the Department of Justice, the Dublin Transfer Unit has indicated in correspondence with the Irish Refugee Council that the Minister for Justice is currently in the process of establishing a procedure to deal with applications pursuant to Article 17.

In 2020, the IPAT issued 102 decisions under the Dublin III appeals procedure. Of these decisions, 18 appeals were granted, while 84 were refused.[12]

Legal assistance

An applicant who is subject to the Dublin Regulation may access legal information through the Legal Aid Board. Technically this is not completely free legal representation as there is a small amount (€10) to be paid (see section on Regular Procedure: Legal Assistance). The Legal Aid Board has also issued guidance on the role of Private Practitioners on their panel as regards legal advice which shows that it also applies in the context of the Dublin procedure.[13] This assistance also applies to the appeal where legal representation is available.

Suspension of transfers

There is no blanket suspension of transfers to any Member State in either law or policy.

Transfers to Greece were suspended following the European Court of Human Rights’ decision in M.S.S. v. Belgium and Greece in 2011.[14] The Minister was asked to formally indicate that removals were suspended and that Ireland would take responsibility but he did not respond. The decision to consider such applications has not been set out in any publicly accessible record and it is not therefore known if it is policy not to transfer or decide on a case by case basis. In such cases where the IPO considers the substantive application, the applicant is able to remain in reception facilities until the application is fully determined.

In response to a Parliamentary Question from February 2017 enquiring whether the Department of Justice was intending to implement the 2016 European Commission proposal that States gradually resume transfers to Greece, previous Minister for Justice Frances Fitzgerald stated that “No transfers of unaccompanied minors are foreseen for the time being. The resumption of transfers is not to be applied retroactively and will only apply to applicants who have entered Greece irregularly from 15 March 2017 onwards or for whom Greece is responsible from this date under the Dublin Regulation criteria.”[15] Whether such transfers have occurred in practice since March 2017 is unknown.

In response to a request by the Irish Refugee Council, the IPO indicated that there have been 13 “take charge” requests and 257 “take back” to Greece in 2020 However, of the 8 transfers that took place in 2020, none were to Greece.[16]

The situation of Dublin returnees

In response to a request by the Irish Refugee Council, the IPO indicated that they comply with the provisions of Article 31 (Exchange of relevant information before a transfer is carried out) and Article 32 (Exchange of health data before a transfer is carried out) of the Dublin Regulation in relation to incoming transfers.[17]

Under the previous system in cases where Ireland had agreed to take back an asylum seeker under the Regulation, the person could be detained on arrival and have difficulty in accessing the asylum procedure (possibly for a second time). If the person has already had a finally determined asylum application and seeks to make another asylum application they would have to make an application to the Minister under Section 22 IPA (see section on Subsequent Applications). It is possible that the authorities could invoke Section 5 of the Immigration Act 2003 which states that a person whom an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects has been unlawfully in the State for a continuous period of less than three months, be removed from Ireland.

[1]  IPO, February 2021.

[2]  Section 19(1) IPA.

[3]   Section 19(4) IPA.

[4]   Minister for Justice and Equality Charles Flanagan, Response to Parliamentary Question No 382, 3 June 2020, available at: https://bit.ly/36eiiqr.

[5]  RTÉ News, ‘Concerns over rise in deportations to UK ahead of Brexit’, 18 December 2020, available at: https://bit.ly/3nNoQlu.

[6]  Minister for Justice and Equality Charles Flanagan, Response to Parliamentary Question No 382, 3 June 2020, available at: https://bit.ly/36eiiqr.

[7] Regulation 4 European Union (Dublin System) Regulations 2018.

[8] Regulations 6 and 8 European Union (Dublin System) Regulations 2018.

[9]  C‑661/17, M.A., S.A., and Z.A. v Ireland, Judgment of 23 January 2019, available at: https://bit.ly/2Rrhard.

[10]  N.V.U & Ors -v- The Refugee Appeals Tribunal & Ors, Judgment of 26 June 2019, available at: https://bit.ly/3jQdQDC.

[11]  N.V.U & Ors -v- The Refugee Appeals Tribunal & Ors [2020] IESC 46, available at: https://bit.ly/3nJhCyZ.

[12]  Data provided by the International Protection Appeals Tribunal, March 2021.

[13]  See further Legal Aid Board, Best practice guidelines, February 2017.

[14]  M.S.S. v. Belgium and Greece, Application no. 30696/09, 21 January 2011, available at: https://bit.ly/2OIGRG5.

[15]   Response to Parliamentary Question 155, 28 February 2017, available at: http://bit.ly/2DiG5YV.

[16]  Ibid.

[17] Information provided by IPO, August 2017.