Author
General (scope, criteria, time limits)
Section 21 IPA contains provisions outlining the circumstances under which an application may be deemed inadmissible by the presiding International Protection Officer. According to Section 21(2) IPA, an application for international protection may be deemed inadmissible where:
- Another Member State has granted refugee status or subsidiary protection to the applicant; or
- A country other than a Member State is a First Country of Asylum for the applicant.
Section 21 IPA is amended by the enactment of the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020. Section 119 of the Act of 2020 amends s. 21(2) IPA by the insertion of subsection (c) which states that an application for international protection may be determined inadmissible whereby the applicant arrives in the State from a safe third country that is regarded as a safe country for that person.[1] A “safe country” will be regarded as such whereby:
- The individual has a sufficient connection with the country concerned on the basis of which it is reasonable for them to return there;
- They will not be subjected to the death penalty, torture or inhuman or degrading treatment or punishment if returned to the country concerned;
- The applicant will be readmitted to the country concerned pursuant to the Dublin Regulation.[2]
According to s.119(d), in determining whether an individual has “sufficient connection with the country concerned, regard will be had for the period the individual has spent in the country, whether lawfully or unlawfully, any relationship between the individual and persons in the country concerned, including nationals and residents of that country and family members seeking to be recognised in that country as refugees, the presence in the country concerned of any family members, relatives or other family relations of the individual concerned and the nature and extent of any cultural connections between the individual and the country concerned.[3]
Section 122 of the Act makes provision for s.72A IPA, permitting the Minister for Justice to designate a particular state as a safe third country whereby the state concerned meets certain conditions relating to safety and asylum practices.[4] The United Kingdom was recently designated a safe third country for the purposes of s.119.[5]
In February 2022, it was confirmed that no return orders were issued to the United Kingdom in 2021, or to-date in 2022, pursuant to s.51A of the International Protection Act 2015, in circumstances whereby an applicant’s application was deemed inadmissible under s.21.[6] As of March 2023, 29 inadmissibility decisions were made pursuant to s.51A. It is not clear whether return orders were effected in respect of such decisions.[7]
Where the international protection officer is of the opinion that the above inadmissibility criteria are met, he or she shall make a recommendation to the Minister that the application be deemed inadmissible. In such circumstances, the Minister shall notify the applicant and his or her legal representative of the recommendation, including a statement of the reasons for the recommendations, a copy of the international protection officer’s report and a statement informing the person of their entitlements, including the right to an appeal (without an oral hearing) to the IPAT within ten days of receiving the decision. 18 applications were rendered inadmissible under the admissibility procedure in 2020.[8] In 2021, 2 cases were deemed inadmissible under the admissibility procedure.[9]
The Irish Refugee Council wrote to the IPO, IPAS and HSE in March 2021 stating that a person who has received a recommendation that their application for international protection be inadmissible continue to receive reception conditions as no final determination had been made. Following engagement by IRC with the relevant stakeholders, it was determined that an individual remains an ‘applicant’ within the meaning of the 2015 Act unless and until the Minister declares their application to be inadmissible pursuant to s.21(11), therefore entitling them to material reception conditions. From September 2021, the IPO began applying this interpretation to all individuals subject to the inadmissibility procedure.[10]
Personal interview
All applicants upon lodging an application for international protection at the IPO are granted a preliminary interview to obtain basic information about the applicant and their claim. This preliminary interview may also be carried out by an immigration officer and it is unclear from the wording of the legislation if this could occur at the frontiers of the State at ports of entry. Section 13(2) IPA states that a preliminary interview with the applicant shall be conducted to ascertain, among other things, whether any circumstances giving rise to inadmissibility considerations may arise. If any of the inadmissibility criteria arising under Section 21(2) IPA are identified, then a recommendation is made by the IPO to the Minister that the application be deemed inadmissible and an application for international protection may not proceed.
Appeal
Where an inadmissibility recommendation is made, the applicant may make an appeal against that decision within a timeframe designated by the Minister. The time limit for appealing inadmissibility decisions has been set at ten working days according to International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017 (S.I. No. 116/2017), prescribing specific time periods for different classes of appeal.[11] In 2019, the IPAT received 26 appeals against inadmissibility decisions. As of September 2020 the IPAT had received 6 appeals[12]. Data in respect of appeals for 2021 and 2022 was not available at the time of updating.
Under Section 21(6) IPA, a person who receives notification from the Minister detailing the inadmissibility of their case, at the same time receives a written statement setting out the reasons for the inadmissibility finding and informing the person of his or her entitlement to appeal to the IPAT against such a recommendation.
The appeal procedure against inadmissibility decisions differs from the Regular Procedure: Appeal insofar as there is no option for an oral hearing.[13]
Legal assistance
All asylum applicants can register with the Legal Aid Board as soon as they have made their application to the IPO. Information and guidance on legal advice is contained in Section 3.14 of the Information Booklet provided to applicants with the questionnaire that they are required to fill out as part of their application. Applicants who access the Legal Aid Board are assigned a solicitor and a caseworker.
However, if the inadmissibility procedure happens prior to being provided with a Questionnaire or at the frontiers of the State, it is likely that the applicant will not know how to avail themselves of legal advice so in practice may not receive assistance in an admissibility procedure. Furthermore, the guidance issued by the Legal Aid Board to solicitors on its private practitioner’s panel appears to indicate that legal advice is only available once the applicant has been admitted into the single procedure.[14]
The Concluding Observations of the UN Committee against Torture 2017 specifically called on the Irish State to ensure that all persons refused ‘leave to land’ are provided with legal advice informing them of their right to seek international protection, in a language they can understand.[15] However, the lack of transparency with respect to the information and legal assistance provided to persons refused access to the international protection procedure, particularly those at the frontiers of the State who are refused ‘leave to land’, remains an ongoing concern in 2022.
In August 2021, the Irish Refugee Council raised concern in relation to the number of individuals from war-torn countries, including, among others, Eritrea, Syria, Yemen, Afghanistan and Somalia being refused entry to Ireland during the COVID-19 pandemic. In response, the Department of Justice stated that each case regarding persons refused leave to land is assessed on its own merits, taking all relevant information into consideration. More specifically, the Department indicated: “The purpose of the checks is to prevent illegal entry to the State and to disrupt activities that are often highly organised involving exploitation of the persons concerned. Those who are returned to their country of departure, which in the ‘vast majority’ of cases is to another EU state, are done so in accordance with the law.”[16]
In October 2022, it was reported that a unit was to be established at Dublin Airport in order to facilitate stricter immigration checks in respect of arriving passengers. The establishment of the unit was reported to be part of a range of measures introduced by Government with a view to reducing the number of individuals claiming international protection in Ireland. [17]
Further reports in September and October 2022 indicated that additional immigration control measures had increased at Dublin Airport, targeting in particular individuals seeking to disembark from arriving aircraft with false documentation.[18] One such report indicated that ‘before the flight landed, the crew asked passengers to get out their passports for immigration checks…Once it touched down, border control officers came on the plane.[19] When passengers queried the practice, they were advised that Immigration Officers were ‘looking for people without visas.’[20] Despite indications from the Department of Justice in recent years that this practice had been largely scaled back, such reports suggest that the policy continues to operate in practice as of 2022.
[1] Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020, s.119, available at: https://bit.ly/3o4SP8X.
[2] ibid., s. 119(d).
[3] ibid.
[4] ibid., s.122.
[5] S.I. No. 725/2020 – International Protection Act 2015 (Safe Third Country) Order 2020, available at: https://bit.ly/3nYIJpW.
[6] Minister for Justice and Equality Helen McEntee, Response to Parliamentary Questions No 564, 15 February 2022, available at: https://bit.ly/3D9gVbu.
[7] International Protection Office, March 2023.
[8] Information provided by IPO, April 2021.
[9] Information provided by IPO, April 2022.
[10] Information received from IPO, 3 September 2021.
[11] Section 21(6) IPA; Section 3(a) International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017.
[12] Minister for Justice Helen McEntee, Response to Parliamentary Question No 720, 29 September 2020, available at: https://bit.ly/3sVirZu.
[13] Section 21(7) IPA.
[14] Legal Aid Board, Best Practice Guidelines, Information Note for Private Practitioners, February 2017, available at: https://bit.ly/2ZVaxTW.
[15] UN Committee against Torture, Concluding Observations on the Second Periodic Report of Ireland, August 2017, available at: http://bit.ly/2hPIVem, para 12(e).
[16] Irish Times, ‘Rise in persons from war-torn countries refused entry into the State’, 2 August 2021, available at: https://bit.ly/33hZbgM.
[17] Irish Examiner, ‘Stricter asylum checks, more deportations, and more basic shelter in bid to control migration’, 24 October 2022, available at: https://bit.ly/3GNNmjh.
[18] Dublin Inquirer, ‘The Government says it’s bringing back stricter asylum checks, but what does that mean?’, 2 November 2022, available at: https://bit.ly/3VQ1YTv.
[19] ibid.
[20] ibid.