Regular procedure

Author

Irish Refugee Council Visit Website

General (scope, time limits)

There is no time limit in Irish law for the IPO to make a decision on an asylum application at first instance.[3] Under Section 39(5) IPA, if a recommendation cannot be made within six months of the date of the application for a declaration, the IPO may, upon request from the applicant, provide information on the estimated time within which a recommendation may be made. However, there are no express consequences for failing to decide the application within a given time period. Applicants can be called back for a subsequent interview in relation to their claim, occasionally a number of months after their initial s.35 interview was conducted.

The Irish Refugee Council has repeatedly raised concerns regarding increasing delays in the Irish protection process. 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]

Prioritised examination and fast-track processing

Prioritisation is dealt with under Section 73 IPA, giving the Minister power to “accord priority to any application”, or “to any appeal” in consultation with the chairperson of the Tribunal. Under Section 72(2) the Minister may have regard to certain matters such as whether the applicant is a person (unaccompanied child) in respect of whom the Child and Family Agency is providing care and protection.

The grounds for prioritised applications are not explicitly set out in the IPA but Section 73(2) states that in according priority the Minister may have regard to the following:

• whether the applicant possesses identity documents, and if not, whether he or she has provided a reasonable explanation for the absence of such documents;
• whether the applicant has provided a reasonable explanation to substantiate his or her claim that the State is the first safe country in which he or she has arrived since departing from his or her country of origin;
• whether the applicant has provided a full and true explanation of how he or she travelled to and arrived in the State;
• where the application was made other than at the frontier of the State, whether the applicant has provided a reasonable explanation to show why he or she did not make an application for international protection, or as the case may be, an application under section 8 of the Refugee Act 1996 (as amended) immediately on arriving at the frontier of the State unless the application is grounded on events which have taken place since his or her arrival in the State;
• where the applicant has forged, destroyed or disposed of any identity or other documents relating to his or her application, whether he or she has a reasonable explanation for so doing;
• whether the applicant has adduced manifestly false evidence in support of his or her application, or has otherwise made false representations, either orally or in writing;
• whether the applicant has adduced manifestly false evidence in support of his or her application, or has otherwise made false representations, either orally or in writing;
• whether the applicant, without reasonable cause, has made an application following the notification of a proposal under Section 3(3)(a) of the Immigration Act 1999;
• whether the applicant has complied with the requirements of Section 27(1) IPA;
• whether the applicant is a person in respect of whom the Child and Family Agency is providing care and protection;
• whether the applicant has, without reasonable cause, failed to comply with the requirements of paragraphs (a), (c) or (d) of Section 16(3) IPA which refers to reporting obligations.

Applications from certain nationalities can be prioritised, which leads to a quicker determination of the application and the curtailment of appeal rights.

Following the introduction of the revised procedure, other nationalities (currently applicants from Bosnia and Herzegovina, Republic of North Macedonia, Georgia, Kosovo, Montenegro, Republic of Albania, Republic of Serbia and Republic of South Africa) may also find themselves subjected to a truncated procedure on the grounds that those countries have been designated by the Minister for Justice and Equality as Safe Countries of Origin. Under the revised procedure, applicants from safe countries of origin will now receive a date for 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 same necessary and expedient.

All applications will continue to be examined individually and all applicants will retain the right to appeal a negative recommendation by the IPO to the International Protection Appeals Tribunal.[6] However, pursuant to the International Protection Act 2015 (Procedures and Periods for Appeals) (Amendment) Regulations 2022, whereby the IPO recommends that an applicant’s application for refugee or subsidiary protection should be refused, and the applicant originates from one of the designated safe countries of origin, the timeframe in which to submit an appeal is shortened to 10 working days from the date of the decision. An applicant’s appeal will be decided without an oral hearing, unless IPAT believes that it is in the interests of justice to hold an oral hearing.[7] Moreover, if an applicant is from a country designated a safe country of origin, a burden is placed on the applicant to rebut the presumption that they are not in need of international protection (see section on Accelerated Procedure).

From 8^th of November to the 31^st of December 2022, 448 cases have been processed under the accelerated procedure with applicants originating from Georgia, South Africa, Albania and Kosovo.  The median processing time for cases under the accelerated procedure was 33.75 days.[8]

On 27 January 2017 UNHCR issued a statement in conjunction with the International Protection Office on the prioritisation of applications, which remains in effect as of January 2023.[9] Under the IPA, the scheduling of interviews occurs under two processing streams, which run concurrently on the basis of ‘oldest case first’ and according to specific criteria warranting prioritisation.

According to the UNHCR and the IPO statement setting out the prioritisation procedure: [10]

1. Stream one will comprise the majority of applications, which will be scheduled mainly on the basis of oldest cases first. This includes new applications made after the commencement of the IPA as well as those cases that were under processing prior to the new procedures coming into force. Within this stream, cases will be scheduled according to the following stages and order of priority:

• pending subsidiary protection recommendations;
• pending appeal at the former Refugee Appeals Tribunal;
• pending refugee status recommendations.

2.  Stream two will also be processed on the basis of oldest case first.  Stream two pertains to both cases that were open before the commencement of the IPA and those lodged after that meet specific prioritisation criteria:

• The age of applicants – under this provision the following cases will be prioritised: unaccompanied minors in the care of Tusla; applicants who applied as unaccompanied minors, but who have now aged out; applicants over 70 years of age, who are not part of a family group;
• the likelihood that applications are well-founded;
• the likelihood that applications are well-founded due to the country of origin or habitual residence (specifically, Syria, Eritrea, Iraq, Afghanistan, Iran, Libya and Somalia);
• health grounds – 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.

In August 2021, in response to the emerging humanitarian crisis in Afghanistan, the Department of Justice confirmed that it would begin prioritising international protection applications from Afghan nationals in line with updated advice provided by UNHCR.[11]  Anecdotal evidence indicates that prioritisation for cases of Afghan nationals took place in practice throughout 2022 for some, but not all, applicants.[12]

Personal interview

The IPA allows for a preliminary (non-mandatory) interview of the applicant upon arrival on the territory of the State in order to, among other things, capture basic information about the applicant before they formally register an application for international protection. Section 13 IPA enables an immigration officer or an IPO officer to conduct the preliminary interview. It is not clear from the legislation when it would be an immigration officer or an IPO officer conducting the interview, but the immigration officer must furnish a record of the interview to the Minister. Under Section 13 IPA, the preliminary interview seeks to establish, among other details: whether the person wishes to make an application for international protection, as well as the grounds for that application; the identity, nationality and country of origin of the person; the route travelled by the person and other travel details, and whether any initial inadmissibility grounds arise in the case. If differences occur in the statements furnished by the applicant in the preliminary and substantive personal interviews, a negative credibility finding may be made in respect of the applicant’s claim.

The substantive interview is conducted by an International Protection Officer who will have extensively reviewed the applicant’s questionnaire and relevant country of origin information in advance. The purpose of this interview is to establish the full details of the claim for international protection and address any issues or inconsistencies arising from the questionnaire and other material supplied to the IPO for the purposes of the case. The interview can last a number of hours, depending on the circumstances of the particular case. A legal representative can attend the interview and is asked to sign a code of conduct to be observed when attending the interview. Private practitioners who are funded by the Legal Aid Board to provide legal representation to applicants are not funded to attend the interview. The Irish Refugee Council’s Independent Law Centre attends interviews with their clients. The vast majority of substantive personal interviews are conducted face to face at the IPO in Dublin, however a small number of face-to-face interviews were also held outside of Dublin in 2019, in Tipperary Town, under a pilot process, however this was discontinued due to difficulties in accessing public transport.

Following the implementation of measures to restrict the spread of COVID-19, the IPO began to pilot remote video conferencing interviews. 90 interviews were carried out remotely.[13] Applicants were required to attend a designated centre in Co. Cork in order to conduct their interview via secure web conferencing software, while interviewers attended at the IPO offices in Dublin. In the experience of the Irish Refugee Council, this process led to some difficulties with regard to legal representatives’ attendance at client interviews. Following the easing of Covid-19 restrictions, in February 2022, the IPO recommenced in-person interviews.

Since the commencement of the IPA on 31 December 2016, consideration of eligibility for refugee status, subsidiary protection and permission to remain is given under a single interview, as held in Section 35 IPA.

A personal interview may be dispensed with where the IPO officer is of the opinion that:[14]

• based on the available evidence, the applicant is a person in respect of whom a refugee declaration should be given;
• where the applicant has not attained the age of 18 years, he or she is of such an age and degree of maturity that an interview would not usefully advance the examination; or
• the applicant is unfit or unable to be interviewed owing to circumstances that are enduring and beyond his or her control.

In the experience of the Irish Refugee Council, interviews were rarely dispensed with in practice, save for in exceptional circumstances. The Irish Refugee Council advocated for greater use of this power during the pandemic. Subsequently, the IPO dispensed with interviews in numerous cases of applicants from prioritised countries in 2021. Many of these applicants were issued with a declaration of refugee status on a papers-only basis in circumstances where they had established their identity and nationality. This was something the Irish Refugee Council recommended in the report “Hanging on a Thread” (published in July 2021), and has been hugely welcomed.

Where an applicant does not attend his or her scheduled interview, the application may be deemed to be withdrawn. However, the IPO will first contact the applicant to find out if there is a reasonable cause for his or her failure to attend the interview. An applicant may make representations in writing to the IPO in relation to any matter relevant to the investigation following the interview and the International Protection Officer shall take account of any representations that are made before or during an interview under Section 35 IPA. Representations may also be made by UNHCR and by any other person concerned.

International Protection Officers are required to “be sufficiently competent to take account of the personal or general circumstance surrounding the application, including the applicant’s cultural origin or vulnerability” and must provide the services of “interpreters who are able to ensure appropriate communication between the applicant and the person who conducts the interview.”[15] Whilst this is not laid down in legislation, in practice the applicant may request the IPO officer and/or interpreter be of a particular gender.

Unaccompanied children are usually accompanied by their social worker or another responsible adult. Where this is the case, the officer conducting the interview will require the accompanying adult to prove that he or she is responsible for the care and protection of the applicant. Section 35(5)(a) IPA states that interviews are conducted without the presence of family members save in certain circumstances where the International Protection Officer considers it necessary for an appropriate investigation. Anecdotal evidence suggests that such circumstances rarely occur. The interview is the primary opportunity for the applicant to give their personal account of why they are seeking international protection and cannot return home.

A total of 1,116 personal interviews were conducted throughout 2020.[16] A total of 1,214 personal interviews were conducted in 2021.[17] Throughout 2022, the IPO conducted a total of 3,913 personal interviews, while 606 applications were decided without the applicant having to undergo a personal interview.[18]

Interpretation

Section 35(2) IPA states that an applicant who is having a substantive interview shall, whenever necessary for the purpose of ensuring appropriate communication during the interview, be provided by the Minister or International Protection Officer with the services of an interpreter. As mentioned above the IPA requires that interpreters are fully competent and able to ensure appropriate communication between the applicant and the interviewer. If an interpreter is deemed necessary for ensuring communication with an applicant, and one cannot be found, the interview is usually postponed until one can be found. There are no known languages of countries from which protection applicants in Ireland typically originate for which interpreters are not available. If issues arise between the applicant and the interpreter during the interview (for example, in circumstances where the interpreter speaks a different dialect of the language requested by the applicant, or where the applicant is uncomfortable with the interpreter provided for any reason), the applicant is encouraged to indicate this to the International Protection Officer and/or their legal representative. This may involve postponing the interview until the issue can be resolved and/or another interpreter can be found. Under ordinary circumstances, where requested, interpreters are obliged to attend international protection interviews in person at the International Protection Office. However, throughout 2021, owing to the COVID-19 pandemic and associated restrictions, interpretation services have typically been provided to applicants on a remote basis whereby interpreters have been required to dial in to client interviews via telephone. As previously mentioned, this significantly affected the sound quality of interviews. It was also not possible for the applicant to see the interpreter. The software being used meant that calls often dropped numerous times throughout the interview and had to be reconnected. Efforts were made to address these concerns through the introduction of new software, in December 2021.

As of February 2022, in-person international protection interviews recommenced following the easing of Covid-19 restrictions.[19]

As it stands, there is no recognised qualifications framework or established standards, set out in legislation or elsewhere, on the recruitment of interpreters by public bodies, including the IPO. Most interpreters are sourced from a private company that has a contract to provide access to interpreters, with such contracts typically valid for between 2 and 4 years. The result is that quality of interpreting, in the experience of Irish Refugee Council, varies significantly, with anecdotal reports of interpreters interpreting in the 3rd person, having a standard of English which is lower than that of the applicant, or having insufficient or inappropriate vocabulary to deal with particular claims – e.g., claims related to sexual orientation or gender identity or religious conversion claims.

Since 2016, the Irish Refugee Council has rolled out an interpreter training programme for French and Arabic interpreters that focuses on promoting best practice interpreting techniques, interpreting practice, terminology used in the asylum process, and ethics and a code of conduct.[20] The training also provides interpreters with practical exposure through role-playing, involvement in Irish Refugee Council casework and an overview of the asylum process. In 2021,18 interpreters attended training on how to work remotely and on a revision of the code of conduct. The Irish Refugee Council interpreters’ professional code of conduct was also updated to include remote Interpreting.[21]

Recording and report

Typically, the officer conducting the interview makes a record of the information given and that information is read back to the applicant periodically during the interview or at the end of the interview. The applicant is requested to sign each page to confirm that it is accurate or to flag any inaccuracies. In the event that typographical errors are present in the record, the applicant may amend the record and initial the change in the margin; for more substantial changes the page may be re-printed or a supplementary page may be printed. The interview is usually recorded via hand-typed transcription on a desktop. There is no system for independent recording of the interviews (interviews are not audio or video recorded), even where a legal representative is not present. A copy of the interview record is not given to the applicant or their legal representative until and unless the applicant receives a negative decision. If a negative decision is issued, then the applicant and the legal representative automatically receive a copy of the interview record. In some cases, a subsequent interview is required, for example if there are further questions that need to be asked or if the authorised officer has done further research. Interviews may on occasion be adjourned in the event that there is a problem with interpretation or illness.

Appeal

Appeal before the International Protection Appeals Tribunal (IPAT)

Decisions of the IPO may be challenged before the International Protection Appeals Tribunal (IPAT) within 15 working days of receiving a negative decision.[23]  However, pursuant to the International Protection Act 2015 (Procedures and Periods for Appeals) (Amendment) Regulations 2022, whereby the IPO recommends that an applicant’s application for refugee or subsidiary protection should be refused on the basis of one of the reasons established pursuant to s.39(4) of the International Protection Act 2015, the timeframe in which to submit an appeal is shortened to 10 working days from the date of the decision.[24] Such reasons include whereby a finding is made by the International Protection Office that the issues raised in the application were not relevant to the applicant’s eligibility for international protection, whereby the applicant’s representations have been inconsistent or contradictory, whereby the applicant failed to make the application as soon as they could without good reason, whereby a finding is made that the applicant did not require international protection due to the possibility of safe internal relocation within their country of origin, or whereby the application is refused and the applicant comes from a safe country of origin.[25]An applicant’s appeal will be decided without an oral hearing, unless IPAT believes that it is in the interests of justice to hold an oral hearing.[26]

The IPAT is the second-instance decision making body for the Irish asylum process. The IPAT is a quasi-judicial body and, according to the IPA, it shall be independent in the performance of its functions. Under Section 41 IPA, the IPAT may hear appeals against recommendations that an applicant not be given a refugee declaration, or recommendations that an applicant should be given neither a refugee declaration nor a subsidiary protection declaration. The IPA also hears appeals regarding Dublin III Regulation transfers and on paper, inadmissibility appeals. Applications to the IPAT must be made in writing, within a given time frame, including the grounds of appeal and whether or not the applicant wishes to have an oral hearing.

Section 61(4) IPA states that the Minister shall appoint members of the IPAT. They work and are paid on a per case basis. The IPAT consists of a Chairperson, two deputy chairpersons, and such number of ordinary members appointed on a whole time or part-time capacity as the Minister for Justice and Equality, with the consent of the Minister for Public Expenditure & Reform, considers necessary for carrying out the extent of the casework before the Tribunal.

Following the onset of the COVID-19 pandemic in March 2020, all appeals before the IPAT were suspended. Appeals recommenced for a short period in July 2020, however, in October 2020, following the reimplementation of restrictions, all scheduled appeals were postponed from 22 October until 10 December, in line with government guidelines. Restrictions were re-introduced in late December 2020 and with effect from 30 December 2020, all appeals were once again cancelled until further notice.[27]

The IPAT subsequently announced that it was in a position to conduct some appeal hearings remotely by way of audio-video link. Throughout 2021, all appeals before the IPAT which were deemed suitable proceeded on a remote basis via audio-video link. In circumstances where an appeal was deemed unsuitable to proceed remotely, the appeal was postponed and subsequently rescheduled. From the 4th October 2021, the Tribunal began facilitating a limited number of oral hearings on-site in situations whereby to proceed with the oral appeal hearing via audio-video link would be unfair to the appellant or would be contrary to the interests of justice. Otherwise, the Tribunal continued to conduct appeal hearings remotely via audio-video link.[28]

As of January 2023, the vast majority of appeals continued by way of remote hearing, save at the request of the applicant or whereby to conduct the appeal remotely would be contrary to the interests of justice.

The IPAT, as an essential service, continued to accept new appeals, correspondence and submissions throughout the Covid-19 pandemic. However, in line with COVID-19 public health advice, all correspondence and communication with the Tribunal was required to be made by email, where possible.[29]

In 2021, the IPAT received a total of 756 appeals against negative first-instance decisions. Additionally, 12 appeals were lodged against decisions made under the European Communities (Reception Conditions) Regulations 2018. There were 2,172 appeals scheduled for hearing, while 1,052 decisions were issued. Of these decisions, 351 granted the applicant refugee or subsidiary protection status, 2 were dismissed as inadmissible and 667 decisions denied the applicant protection. 155 decisions were issued without an oral hearing.[30]

In 2022, the IPAT received a total of 1,175 appeals against negative first instance decisions. Additionally, 5 appeals were lodged against decisions made pursuant to the European Communities (Reception Conditions Regulations 2018. There were 1,881 appeals scheduled for hearing, 766 of which proceeded remotely. There were 1,300 decisions issued, as well as 5 decisions issued in respect of the European Communities (Reception Conditions) Regulations 2018. Of these decisions, 443 applicants were granted refugee status, 34 were granted subsidiary protection, 6 were dismissed as inadmissible and 761 appeals were rejected on their merits. 118 decisions were decided without an oral hearing.[31]

Where an oral hearing is held, these are conducted in a relatively informal manner and in private. The applicant’s legal representative may be present as well as any witnesses directed to attend by the Tribunal.  Witnesses may attend to give evidence in support of the appeal, e.g., a country of origin expert or a family member. The Presenting Officer for the IPO also attends. UNHCR may attend as an observer, however, this rarely occurs in practice. Pursuant to section 42(8)(d) of the Act of 2015, and in line with the Chairperson’s Guideline 2019/1 on Taking Evidence from Appellants and other Witnesses, the Tribunal may require all persons (over the age of 14) giving evidence before it to give that evidence on oath. Appellants and other witnesses whom the Tribunal requires to give evidence in this manner will be given the opportunity to affirm if they are a non-believer or if the taking of an oath is incompatible with the person’s belief. [32]

Section 42(6)(c) IPA provides for the services of an interpreter to be made available whenever necessary for the purpose of ensuring appropriate communication during the interview.

Before reaching a decision, the Tribunal considers, among other things:

• Notice of Appeal submitted by the applicant or their legal representative;
• All material furnished to the Tribunal by the Minister that is relevant to the case;
• Any further supporting documents submitted by the applicant or their legal representative, as well as any observations made to the Tribunal by the Minister or the UNHCR;
• Where an oral hearing is being held, the representations made at that hearing.

The length of time for the Tribunal to issue a decision is not set out in law. In 2018, the average length of time taken by the IPAT for processing and issuing a decision on an international protection appeal was approximately 154 days.[33] The average processing time for appeals to the IPAT in 2019 is 23 weeks.[34] The IPAT has a target median processing time of 12 weeks for appeals at the beginning of 2020, however, this has been impacted as a result of the pandemic and resulting suspension of oral hearings before the Tribunal.[35] The median processing time for appeals in 2020 was, on average, 9 months.[36] The median processing time for appeals in 2021 was, on average, 13.5 months.[37] The median processing time for appeals in 2022 was, on average, 10.5 months.[38]

Under Section 49(7) IPA, where the Tribunal affirms a recommendation from the IPO that an applicant is not declared a refugee nor in need of subsidiary protection, the Minister may reassess the eligibility of the applicant to be granted permission to remain. For the purposes of such a review, the applicant may submit documentation or information to the IPO about a change of circumstances relevant to a review of permission to remain (such as evidence of an established connection to the State, information indicating humanitarian reasons to grant permission to remain, etc.). Such information must be submitted within a period of time prescribed by the Minister under Section 49(10) IPA.

On 11 March 2014, the Chairperson of the RAT issued Guidance Note (No: 2014/1) which stated that from that date any person may access the archive of Tribunal decisions for any lawful purpose.^[39] The Note also stated that all matters that might identify a person as an applicant for refugee status have been removed/omitted so that the identity of applicants is kept confidential; if removal could not sufficiently protect the identity of an applicant, the decision would not be published. This is a significant change in practice; a major criticism of the RAT in the past has been that decisions were not publicly available. Access to the online Tribunal decisions archive requires completion of a simple registration process upon which the user is furnished with a password valid for one year for use with the database.^[40]

Judicial Review

A decision of the IPAT (as with the IPO) may be challenged by way of judicial review in the High Court. This is a review on a point of law only under Irish administrative law and cannot investigate the facts. In addition, the applicant must obtain permission (also called ‘leave’) to apply for judicial review. This is a lengthy and costly process.

Cases are listed before the High Court “Asylum List.” Cases on the “Asylum List” also include judicial review of decisions in relation to other immigration matters such as EU treaty rights, naturalisation and family reunification.

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.^[41] Statistics in relation to asylum cases lodged in 2022 were not available at the time of writing, however, will be released in July 2023 following the publication of the Courts Service Annual Report.

Legal assistance

The Legal Aid Board, an independent statutory body funded by the State, provides a dedicated service for international protection applicants. To qualify for legal services in respect of their asylum application, the applicant’s income (less certain allowances) must be less than €18,000 per annum. Applicants in Direct Provision (the state system of reception, accommodation and support for protection applicants) are generally eligible for legal services at the minimum income contribution but may apply to have some of the contribution waived, at the discretion of the Legal Aid Board. Strictly speaking, there is a small fee to be paid of €10 for legal advice and €40 for representation, but this is invariably waived by the Legal Aid Board whereby an applicant does not have the means to cover the fee.

According to available information contained within the Legal Aid Board’s Annual Report for 2019, the number of individuals seeking legal services from the Board for international protection applications in 2019 was 2,539, compared with 2,079 in 2018. This was an increase of 22% on the previous year.[42] In 2020, 1,174 persons sought legal services in relation to international protection.[43] This marked a reduction of approximately 53% on the previous year, likely accounted for by the significant reduction in applications for international protection as a result of the COVID-19 pandemic. The total number of applications for Legal Aid from International Protection clients in 2021 was 1,222.[44] This figure refers to the Dublin Law Centre only. Figures relating to the Cork and Galway Law Centres were not available at the time of updating. The total number of applications for Legal Aid from International Protection clients across all three law centres for 2022 was 858.[45]

Asylum applicants can register with the Legal Aid Board as soon as they have made their application to the IPO. All applicants are assigned a solicitor and a caseworker. There are three branches of the Legal Aid Board that have dedicated international protection units, with law centres located in Cork, Galway and Dublin cities, including a specific unit in the Dublin law centre that deals with international protection applications made by children. The Legal Aid Board has normally provided services only at the appeal stage but now they are also including services in-house for early legal advice (ELA) and via a Private Practitioners’ Panel whereby private solicitors provide ELA for the Legal Aid Board for a set fee. The ELA service normally does not cover attendance at the actual personal interview with the applicant and only covers guidance on completing the Questionnaire rather than actual assisting with the completion of the Questionnaire form itself. The Legal Aid Board has established some best practice guidelines under the new procedure.[46] The Irish Refugee Council, nevertheless, continues to experience individuals presenting at its drop-in services who are represented by the Legal Aid Board but do not receive substantive support in actually completing the Questionnaire. A Legal Aid Board caseworker will, however, review the Questionnaire once the applicant has attempted to complete it themselves.

Since 2011, the Irish Refugee Council Independent Law Centre has run a free ELA service which involves providing intensive legal assistance to the applicant at the very early stages of the asylum process.[47] The ELA package offered by the Irish Refugee Council Law Centre provides an initial advice appointment with a solicitor (preferably prior to the application for asylum being made), accompaniment to lodge an application, assistance with the completion of the in-depth application questionnaire and drafting of a personal statement based on the applicant’s instruction, attendance at the substantive interview and submission of representations. In November 2015, following the success of the Irish Refugee Council’s ELA programme, the Law Centre published a manual on the provision of ELA to persons seeking protection.[48] The manual is geared towards promoting best practice towards practitioners working in the EU asylum context. The Law Centre (with a staff team of one managing solicitor, two solicitors and a legal officer) provided ongoing representation to 280 clients at various stages of the international protection process. Additionally, 48 clients received a declaration of refugee status, while 24 clients received permission to remain. 67 clients were provided with ongoing representation in respect of family reunification, while 22 clients were reunited with their families following positive family reunification decisions.[49]

Free legal aid for appeals to the IPAT is available through the Legal Aid Board. In the event that an appeal to the IPAT is unsuccessful, the applicant must first of all seek the assistance of a private practitioner to get advice about challenging the decision by way of judicial review in the High Court.  If they cannot get such private legal assistance, the Legal Aid Board will consider the merits of the application for judicial review and may apply for legal aid to cover the proceedings but it is important to note that judicial review will only be an appropriate avenue in some circumstances and should not be viewed as an appeal procedure.

Since the enactment of the Reception Conditions Regulations, transposing the Reception Conditions Directive, the Legal Aid Board has responsibility for providing legal assistance to international protection applicants in matters pertaining to reception conditions (such as appeals on decisions made in relation to withdrawal or restriction of reception conditions, or refusal of a work permit, etc.)^[50] The Legal Aid Board guidance states that it is generally open to solicitors to “provide legal advice in relation to a matter covered by the Regulations, and in line with the further guidance provided below in relation to specific matters. Unless an application is received from an applicant who is not an existing client of the Board, it is not to be regarded as a separate matter and should be dealt with as part of the international protection file.”^[51] No information is available about how this has worked in practice.

[1]  Acting Minister for Justice Simon Harris, Response to Parliamentary Question No 560, 31 January 2023, available at: https://bit.ly/3DHnhk2.

[2] International Protection Office, March 2023.

[3] There is no time limit in law. Alan Shatter, then Minister for Justice, stated in July 2013 that a reason Ireland was not opting into the recast Asylum Procedures Directive was because the recast proposed that Member States would ensure that the examination procedure was concluded within 6 months after the date the application is lodged, with a possible extension of a further 6 months in certain circumstances. Alan Shatter stated that these time limits could impose additional burdens on the national asylum system if there was a large increase in the number of applications to be examined in the State, especially considering previous increases in the period 2001 to 2003, available at: http://bit.ly/1Lwomep.

[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] 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’, 8^th November 2022, available at: https://bit.ly/3jyYBTI.

[7] International Protection Act 2015 (Procedures and Periods for Appeals) (Amendment) Regulations 2022

[8] International Protection Office, March 2023.

[9] IPO and UNHCR, Prioritisation of applications for international protection under the International Protection Act 2015, available at: https://bit.ly/3n4bUv.

[10] ibid.

[11] RTÉ, Department of Justice to prioritise international protection applications from Afghan Nationals, 18 August 2021, available at: https://bit.ly/3tbpAYi.

[12] Information provided by the Irish Refugee Council’s Independent Law Centre and Information and Advocacy Service, January 2023.

[13] Information provided by IPO, April 2021.

[14] Section 35(8) IPA.

[15] Section 35(3) IPA.

[16] Information provided by IPO, April 2021.

[17] Information provided by IPO, April 2022.

[18] International Protection Office, March 2023.

[19] Information provided by IRC Independent Law Centre, February 2022.

[20] Irish Refugee Council, Interpreter Training Programme, available at: https://bit.ly/2XLb9ZB.

[21] Information provided by Resettlement Officer, February 2022.

[22] International Protection Appeals Tribunal, February 2023.

[23] Section 41(2)(a) IPA; Section 3(c) International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017.

[24] International Protection Act 2015 (Procedures and Periods for Appeals) (Amendment) Regulations 2022.

[25] International Protection Act 2015, s.39(4).

[26] International Protection Act 2015 (Procedures and Periods for Appeals) (Amendment) Regulations 2022.

[27] IPAT, Covid-19 – Latest update, 29 January 2020, available at: https://bit.ly/3di1Ucy.

[28] International Protection Appeals Tribunal, COVID-19 – Latest update, 11 October 2021, available at: https://bit.ly/3H4r3Dj.

[29] ibid.

[30] International Protection Appeals Tribunal, February 2022.

[31] International Protection Appeals Tribunal, January 2023.

[32] IPAT Administrative Practice note, available at: https://bit.ly.2XTnFc3.

[33] Ibid, 44.

[34] Minister for Justice and Equality, Response to Parliamentary Question No 84, 27 June 2019, available at: https://bit.ly/3atrRkf.

[35] Minister for Justice Helen McEntee, Response to Parliamentary Question No. 33, 10 December 2020, available at: https://bit.ly/3bDspZ4.

[36] Minister for Justice Helen McEntee, Response to Parliamentary Question No 632, 27 January 2020, available at: https://bit.ly/2NqoHIv.

[37] Information provided by IPAT, February 2022.

[38]  Information provided by IPAT, January 2023.

[39] Guidance Note No: 2014/1, Access to Previous Decisions of the Tribunal, 11 March 2014.

[40] International Protection Appeals Tribunal Decision Archive, available at: http://bit.ly/2B4bsRz.

[41] Courts Service, Annual Report 2022, 28 July 2022, available at: https://bit.ly/3iUYf9T.

[42] Legal Aid Board, Annual Report 2019, 8 October 2020, available at: https://bit.ly/39cRlE6.

[43] Legal Aid Board, Annual Report 2020, 21 October 2020, available at: https://bit.ly/3tslP0n.

[44] Information provided by Legal Aid Board, February 2022.

[45] Information provided by Legal Aid Board, January 2023.

[46] The best practice guidelines are available at: https://bit.ly/2Xjl4Gz.

[47] For further information, see The Researcher, ‘Early Recognition of People in Need of International Protection: The Irish Refugee Council Independent Law Centre’s Early Legal Advice and Representation Project’, October 2013.

[48] Irish Refugee Council Independent Law Centre, A Manual on Providing Early Legal Advice for Persons Seeking Protection, available at: https://bit.ly/3gEzYie.

[49] Information provided by Irish Refugee Council Independent Law Centre, December 2022.

[50] Regulation 6(8) Reception Conditions Regulations 2018.

[51] Legal Aid Board Circular on Legal Services European Communities (Reception Conditions)  Regulations 2018, available at: https://bit.ly/2NBxu7w.