Due to the large number of open cases from 2015 being carried over into 2016, there was a significant backlog throughout 2016 but the actual figure of pending cases as of 31 December 2016 is unknown to the author, as the figures for that year have not been published yet.
As of January 2017, with the commencement of the International Protection Act 2015 (IPA), the International Protection Office (IPO) has replaced the Office of the Refugee Applications Commissioner (ORAC) as the specialised office tasked with determining refugee status and subsidiary protection applications at first instance, as well as assessing whether the Dublin III Regulation or permission to remain applies.
There is no time limit in Irish law for the determining authority to make a decision on an asylum application at first instance.1 Under the Refugee Act 1996, ORAC has endeavoured to deliver a recommendation at first instance on whether the person should be granted a declaration of refugee status within six months of the application. If a recommendation could not be made within 6 months of the date of the application for a declaration, ORAC would, 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. That provision also exists under section 39(5) IPA. According to the latest comprehensive statistics, the median processing time for general asylum applications was 29 weeks at year-end 2015.2 ORAC attributed this increase on the 2014 figures to the large number of applications received in 2015.
Similarly, there is no time limit for processing cases under the new system set out in the IPA. However, it is envisaged that the single procedure (which will now see applications for refugee status, subsidiary protection and leave to remain assessed concurrently), by design, will reduce the length of time required to finalise a case. Whether this occurs in practice remains to be seen as, at time of writing this report, the single procedure is at the early stages of being rolled out.
Under section 12(1) of the Refugee Act 1996, the Minister could give a direction to ORAC to give priority to certain classes of applications. The Minister has issued prioritisation directions that apply to persons who are nationals of, or have a right of residence in, South Africa.3 This means that if an applicant falls within the above categories their application will be given priority and may be dealt with by the Commissioner before other applications. In 2015, there were 53 cases prioritised on the basis of safe country of origin designations, with a median processing time for such cases of 10.8 weeks from the date of application.
In accordance with requirements under the Refugee Act, 1996, ORAC also prioritised applications from persons in detention. The preliminary interview in these cases is carried out within 3 working days of the date of their application in so far as possible. In 2015, there was a minor decrease, with 35 persons in places of detention making asylum applications, constituting 1% of all applications made that year.4
In the new system, prioritisation is now 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 minor) 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:
(a) whether the applicant possesses identity documents, and if not, whether he or she has provided a reasonable explanation for the absence of such documents;
(b) 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;
(c) whether the applicant has provided a full and true explanation of how he or she travelled to and arrived in the State;
(d) 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;
(e) 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;
(f) 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; g) 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;
(g) 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;
(h) whether the applicant has complied with the requirements of section 27(1) IPA;
(i) whether the applicant is a person in respect of whom the Child and Family Agency is providing care and protection;
(j) 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. Other nationalities (currently South African) 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 for the purposes of considering asylum applications from those states. 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 a refugee (see section on Accelerated Procedure). It remains to be seen how section 73 is applied in practice as the IPA new procedure is only currently being rolled out.
On 27 January 2017 UNHCR issued a statement in conjunction with the International Protection Office on the prioritisation of applications. UNHCR Ireland stressed the need for fairness and efficiency in dealing with all applications for international protection.5 Under the new system the scheduling of interviews will occur under two processing streams which will run concurrently. According to UNHCR’s statement “Stream one, will comprise of the majority of applications for international protection which will be scheduled mainly on the basis of oldest cases first. These include new applications and cases which were open before the commencement date of the International Protection Act 2015 at the following stages and order of priority: (I) pending subsidiary protection recommendations; (ii) pending appeal at the former Refugee Appeals Tribunal; (iii) pending refugee status recommendations. Stream two will comprise of certain categories of cases which were open at the commencement of the International Protection Act 2015 as well as some new cases based on the criteria below. Within each of these classes of cases, priority will be mainly accorded on the basis of the oldest cases first: (i) 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; (ii) the likelihood that applications are well-founded….; (iii) the likelihood that applications are well-founded due to the country of origin or habitual residence.” The following countries are then listed in terms of priority: Syria, Eritrea, Iraq, Afghanistan, Iran, Libya and Somalia. A final ground for prioritisation is on health grounds in that 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.6
In terms of prioritisation of certain nationalities, anecdotal information suggests that in practice some asylum applications from Syrians were prioritised in 2016 on the basis of the well-founded nature of the claims, given the abundance of public attention afforded to the human rights situation on-going in Syria.
Moreover, in relation to the Irish response to the European Refugee Crisis, in September 2015 the Department of Justice and Equality established an ‘Irish Refugee Protection Programme’ (IRPP) where a network of what is referred to as ‘Emergency Reception and Orientation Centres’ (EROC) will provide accommodation for relocated asylum seekers to Ireland (see section on Relocation). The Minister for Justice, Frances Fitzgerald, has indicated that the assessment and decisions on refugee status for these relocated asylum seekers will be made within weeks, so although not formally prioritised as such their claims will be examined very quickly.7
Both the Refugee Act 1996 and the International Protection Act 2015 (IPA) replacing it allow for a preliminary 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.
The legislation provides for a further substantive personal interview for all applicants, including those prioritised, after the submission of the in depth International Protection Questionnaire. 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 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.
The system under the Refugee Act 1996 obligated the Office of the Refugee Applications Commissioner (ORAC) to conduct separate interviews for each application being submitted, i.e. refugee status or subsidiary protection. This led to systematic delays whereby, if a person goes through the refugee application process (including an interview) and is ultimately denied status, that person must begin the process anew and attend another interview if he or she wants to apply for subsidiary protection. However, with the commencement of the IPA in January 2017, consideration of eligibility for refugee status, subsidiary protection and permission to remain is given under a single interview, as held in section 35 IPA.
Under the new legislation, 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 “interpreters who are able to ensure appropriate communication between the applicant and the person who conducts the interview.”8 Historically, ORAC has facilitated requests for interviewers of a particular gender. ORAC stated that in 2012 that they endeavoured to ensure that the interpreter (if applicable) and the caseworker were of the same gender as the applicant, subject to availability, if this was requested.
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 to give their personal account of why they are seeking international protection and cannot return home.
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. How this will be realised in practice remains to be seen. 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 asylum seekers in Ireland typically originate, for which interpreters are not available.
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 and are requested to sign each page to confirm that it is accurate or to flag any inaccuracies. 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. 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. Whether or not the format of the substantive interview will change with the rollout of the IPA remains to be seen as interviews under the new legislation have not begun at time of writing this report.
A personal interview may be dispensed with where the IPO officer is of the opinion that:9
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.
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 International Protection Office 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.
Up until January 2017, the Refugee Appeals Tribunal (RAT) has been the body considering and deciding on appeals against recommendations of the Office of the Refugee Applications Commissioner (ORAC) that applicants should not be declared to be refugees or beneficiaries of subsidiary protection. They also hear appeals concerning Dublin III Regulation transfers. According to the latest available figures, the median processing time for appeals of refugee status decisions before the RAT in 2014 was 49 weeks (343 days) for oral appeals and 38 weeks (273 days) for paper only appeals. The recognition rate for 2014 was 49% for oral appeals and 33% for paper only appeals. The median processing time for appeals of subsidiary protection status decisions was 28 weeks.10
With the commencement of the International Protection Act 2015 (IPA), the RAT is replaced by the International Protection Appeals Tribunal (IPAT) as the second-instance decision making body for the Irish asylum process. The IPAT is a quasi-judicial body and, according 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 a recommendation 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 members of the IPAT shall be appointed by the Minister. They work and are paid on a per case basis. The IPAT consists of a Chairperson, 2 deputy chairpersons, and such number of ordinary members appointed on either 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.
According to the latest up to date official figures on appeals, there were 1,386 appeals before the RAT in 2015, as well as 799 cases scheduled and 640 decisions issued.11
Legal aid for appeals is available through the Refugee Legal Service in the Legal Aid Board.
Where an oral hearing is held, these are conducted in an 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.
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 previous years, the length of ‘time taken’ by the Tribunal to process and complete a substantive appeal has varied. According to the latest figures from the RAT 2015 annual report, the median length of time taken by the Tribunal to process and complete Substantive 15 day appeals was approximately 69 weeks based on a sample of 385 cases. It was 77 weeks for Accelerated Appeals based on a sample of 73 cases and 52 weeks for Subsidary Protection Appeals based on a sample of 123 cases.
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.12 The Note also stated that all matters which would tend to 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.
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 process. The RAT had 812 active judicial reviews by the end of year 2013 and 75 of which were applications filed for judicial review in 2013.13 At the start of 2014 the Refugee Appeals Tribunal had 812 active judicial review cases on hand. In 2014 only four new applications for judicial review were filed marking a significant decline in the numbers of judicial review applications of RAT decision.14 At the start of 2015 the Tribunal had 455 active Judicial Reviews on hand and the number of new Judicial Reviews filed was 33. 332 Judicial Reviews were determined by the end of 2015.15
According to the Irish Court Service Annual Report 2013 the waiting time for judicial review applications to be considered is lengthy with pre-leave times for applying for judicial review of 30 months and post-leave times of four months.16 There was a 13% decrease in asylum-related judicial review applications in 2013 compared to 2012.17 385 new asylum-related judicial review applications were made in the High Court in 2013 compared to 440 in 2012.18 Asylum related judicial reviews represented 40% of all judicial review applications in 2013.19 According to the Irish Court Service Annual Report 2014 the President of the High Court assigned an additional judge to assist with the hearing of asylum cases. This, along with other initiatives resulted in a significant reduction in delays for hearing asylum cases. In 2014 the waiting time for pre-leave asylum cases was reduced from 30 months to 9 months.20 Overall in 2015, there were only 187 asylum-related judicial review applications which was a 51% decrease on 2014. The Courts Service’s annual report for 2015 noted a significant decrease over the 2013-2015 period for the waiting time for asylum pre-leave to appeal hearings had decreased from 30 months to six months.21 Throughout 2015, there were 164 asylum-related judicial review applications, reflecting a 12% decrease on 2014 and a 57% decrease on 2013 figures.22
Under Section 49(7) IPA, where the Tribunal affirms a recommendation from the IPO that an applicant not be 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 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.
The Refugee Legal Service (RLS) is a division of the state-funded Legal Aid Board, an independent statutory body funded by the State. 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) 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 Refugee Legal Service (RLS).
Asylum applicants can register with the RLS (the Legal Aid Board section which deals with legal aid services for asylum seekers) as soon as they have made their application to ORAC/IPO. All applicants are assigned a solicitor and a caseworker. 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.23
Since 2011, the Irish Refugee Council (IRC) 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.24 The ELA package offered by the IRC Law Centre provides an initial advice appointment with a solicitor (preferably prior to the application for asylum being made), accompaniment to ORAC to claim asylum, assistance with the completion of the 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 IRC’s ELA programme, the Law Centre published a manual on the provision of ELA to persons seeking protection.25 The manual is geared towards promoting best practice towards practitioners working in the EU asylum context.
The RLS’s services are provided in relation to the asylum procedure itself so matters outside the application (e.g. those related to reception conditions) are not covered by their legal advice and assistance. As with any other person, it is open to an applicant to apply to the Legal Aid Board for legal services in other matters; however, applicants may face substantial waiting lists.
In the event that the appeal to the International Protection Appeals Tribunal 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 RLS 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.
- 1. There is no time limit in law. Alan Shatter, Minister for Justice, stated in July 2013 that a reason Ireland was not opting in to 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.
- 2. ORAC, Annual Report 2015, 16.
- 3. It should be noted that the Refugee Act 1996 (Safe Countries of Origin) Order 2004 (S.I. No. 714 of 2004) and Refugee Act 1996 (Safe Countries of Origin) Order 2003 (S.I. No. 422 of 2003) have been revoked under the new International Protection Act 2015.
- 4. ORAC, Annual Report 2015, 16.
- 5. UNHCR and International Protection Office, Prioritisation of applications for international protection under the International Protection Act 2015, available at: http://bit.ly/2lSEaOy.
- 6. Ibid.
- 7. Department of Justice and Equality, Statement by Minister Fitzgerald on the Migration Crisis following an Emergency Meeting of Justice and Home Affairs Ministers, 22 September 2015, available at: http://bit.ly/1kg180z.
- 8. Section 35(3) IPA.
- 9. Section 35(8) IPA.
- 10. Working group to report to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers, Final Report June 2015, available at: http://bit.ly/1KJWai4.
- 11. Refugee Appeals Tribunal, Annual Report 2015, available at: http://bit.ly/2js9ful, 21.
- 12. Guidance Note No: 2014/1, Access to Previous Decisions of the Tribunal, 11 March 2014.
- 13. Refugee Appeals Tribunal, Annual Report 2013, 12.
- 14. Refugee Appeals Tribunal, Annual Report 2014, 12.
- 15. Refugee Appeals Tribunal, Annual Report 2015, available at: http://bit.ly/2js9ful, 13.
- 16. Irish Court Services, Annual Report 2013, available at: http://bit.ly/1CWucTp, 56.
- 17. Ibid, 31.
- 18. Asylum-related judicial review applications denotes judicial review applications submitted against ORAC, RAT and /or the Minister for Justice and Equality in the field of asylum.
- 19. Ibid.
- 20. Irish Court Services, Annual Report 2014, available at: http://bit.ly/1PUkaXC, 19.
- 21. Irish Court Services, Annual Report 2015, available at: http://bit.ly/2iz97VS, 5.
- 22. Ibid, 35.
- 23. The best practice guidelines are available at: http://bit.ly/2moPO3D.
- 24. 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, Jacki Kelly, Irish Refugee Council, October 2013.
- 25. Irish Refugee Council Independent Law Centre, A Manual on Providing Early Legal Advice for Persons Seeking Protection, available at: http://bit.ly/1OCmkdJ.