The International Protection Act 2015 (the Act) came into effect on 30 December 2016. The Act represents a significant development in the area of international protection. The Act reforms the system for determining applications and introduces a single application procedure. The Act gives further effect to the following:
- Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof;
- Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted;
- Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status; and
- 1951 Convention and 1967 Protocol relating to the Status of Refugees
Upon commencement, the Act repeals the Refugee Act 1996 and amends the Illegal Immigrants (Trafficking) Act 2000 and the Immigration Acts 1999, 2003 and 2004. Various other Statutory Instruments are also repealed and revoked under section 6 of the Act.
The Act introduces a number of substantive changes in protection law. Firstly, the two principal bodies currently responsible for examining applications for international protection in Ireland, the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal, are abolished. The protection determination function of the Protection Office is subsumed within the Department of Justice and Equality. The appeal function is carried out by the International Protection Appeals Tribunal – an independent body.
Secondly, it introduces a single procedure, which brings Irish protection legislation into line with practice across Europe. Under the single application procedure, an applicant makes one application in which all grounds for protection are assessed. An international protection officer authorised to perform this function by the Minister is responsible for assessing all grounds for international protection. The International Protection Officers are independent of the Minister in the performance of their functions as per section 74 of the Act.
Similarly to the Refugee Act 1996, the Act defines a refugee as:-
‘a person…who…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside his or her country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons mentioned above, is unable or, owing to such fear, unwilling to return to it’.
The Act also defines a beneficiary of subsidiary protection as someone who is not a national of a Member State of the European Union, who does not qualify as a refugee and in respect of whom substantial grounds have been shown for believing that he or she, if returned to his or her country of origin, would face a real risk of suffering serious harm and who is unable or, owing to such risk, unwilling to avail himself or herself of the protection of that country.
If the decision is to refuse the application for international protection, permission to remain is considered by the Minister as part of the single procedure. The Minister will have regard to such matters as the applicant’s family and personal circumstances and his or her right to respect for private and family life. The Minister may consider further information provided by the applicant at the appeal stage. The onus is on the person to submit information relating to any change of circumstances. There is no appeal mechanism for a refusal of permission to remain. The applicant receives all three decisions together.
Where permission to remain is granted, it is deemed to have been granted under Section 4 of the existing Immigration Act 2004. Permission to remain may also be given to a person where removing him or her would breach the prohibition of refoulement, i.e. where his or her life or freedom would be threatened due to race, religion, nationality, membership of a particular social group or political opinion, or where there is a serious risk of his or her being subjected to the death penalty, torture, or other inhuman or degrading treatment or punishment.
The Act also consolidates and elaborates on procedural safeguards for applicants giving further effect to European Union Law as mentioned above. The Act provides for inter alia the provision of interpreters and rights of appeal against recommendations of the International Protection Officers regarding whether or not applicants should be given declarations of international protection.
The Act also introduces a number of provisions relating to children. In the case of unaccompanied minors who have been referred to the Child and Family Agency (Tusla), in respect of whom Tusla decides whether a protection application should be made, the Act provides for Tusla to arrange for an employee or other person to do this and to assist and represent them in the process.
The Act also introduces the first articulation of the possibility of medical age determinations in Irish law. This is included in section 24, entitled ‘Examination to determine age of unaccompanied person’. This section provides a number of safeguards. For instance, examinations must be performed with full respect for the person’s dignity and, generally, by the least invasive method available. Where the examination is a medical one, it must be carried out by a registered medical practitioner or other suitably qualified medical professional. Additionally, the person concerned must be informed of the procedure, the methods to be used, the potential outcomes and consequences of not giving consent. The best interests of the child are a primary consideration in the application of the section.
An application for international protection which has been submitted by an adult, who is present in the State with a dependent child or children, is deemed also to have been made on behalf of that child or children. The Act also gives authority to International Protection Officers to require adults to satisfy them that they are taking responsibility for the care and protection of accompanied children, failing which Tusla must be informed. Applicants must be 18 in order to submit an application or submit an application on behalf of a minor.
The entitlement to family reunification has been reformed in the Act as well. It represents a significant departure from the Refugee Act 1996. Both Acts define ‘family members’ of sponsors as including parents (in the case of minor refugees), spouses, and children who are unmarried and under 18. The Act of 2015 also includes civil partners of sponsors. Section 18 of the Refugee Act 1996, however, provided for so-called ‘dependent members of the family’ of a refugee to be permitted to enter and reside in the State at the discretion of the Minister, namely-
‘any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully’[1]
This is omitted from the Act of 2015. Furthermore, the Act also places a 12 month time-limit on the making of the application, to run from the date on which the sponsor was given a declaration of international protection. Moreover, any permission to enter and reside in the State which has been granted on foot of the application must be taken up by the date specified by the Minister when granting it, otherwise it lapses.
In sum, the International Protection Act 2015 reforms protection law in Ireland by introducing a single application procedure and by consolidating and replacing the Refugee Act 1996 and its many amendments, as well as various regulations.
See also Overview of new application process under International Protection Act 2015
[1] See also: European Communities (Eligibility for Protection) Regulations 2006, Regulation 16.
