The right to apply for asylum is contained in section 8 of the Refugee Act 1996.
The Office of the Refugee Applications Commissioner (ORAC) is the body responsible for registering asylum applications as well as taking the first instance decision.
As a result of S.I. No. 426/2013 European Union (Subsidiary Protection) Regulations 2013 ORAC’s remit is extended to making recommendations on subsidiary protection applications, both future applications and the existing backlog of applications, which numbered, in November 2013, approximately 3000-3500 persons. An individual must first apply for and be refused asylum before they can apply for subsidiary protection or ‘leave to remain’.
The question of whether an applicant can apply for subsidiary protection without having made an application for asylum was referred by the Irish Supreme Court to the Court of Justice of the European Union in H.N. -v- Minister for Justice.1
The Court of Justice stated in May 2014 that a person applying for international protection must be able to submit an application for refugee status and subsidiary protection at the same time and that there should be no unreasonable delay in processing a subsidiary protection application. The Irish Refugee Council, responding to the CJEU decision, stated that it provides a clear mandate for reform of the existing procedure in Ireland.2
Immigration officers at the border, attached to the Garda National Immigration Bureau (GNIB),3 have no power to assess a claim for asylum. Where a person has stated an intention to claim asylum at the border, they must present themselves at ORAC in order to complete the initial asylum process. Failure to do so or, failure to provide an address to ORAC, within five working days will lead to the application being deemed withdrawn.
A person refused leave to land (entry to the country) may be detained pending removal and, at that point, claim asylum. If their detention is maintained, the notification to ORAC of the intention to claim asylum must, according to the procedures laid out by ORAC, come from the prison authorities, in particular the prison Governor, and not from the detainee or their solicitor. This can lead to delay in the registration of the application. In addition, unless the passenger at the port is explicit about claiming asylum, there is a possibility that the authorities will, if they have issued a refusal of leave to land notice, not release the person to allow them to go to ORAC but may remove the passenger to the country from which they have just travelled. Reports of such occurrences are occasionally received by lawyers and NGOs; however, it is very difficult to follow up on such incidences.
If the application is not made to ORAC within what is described as a reasonable period and if there is no satisfactory explanation for the delay, the authorities (both ORAC and the Refugee Appeals Tribunal), are required, as a matter of law, to consider that as a factor which undermines the credibility of the claim for asylum. This is set out in section 11B of the Refugee Act 1996 as amended by the Immigration Act 2003. There is no definition of reasonableness in this context – the concept is dependent on the facts of each specific case. The issue of delay will be taken into account in an assessment of credibility, along with the other considerations in section 11B.
There is no assistance given to enable someone to travel to the ORAC office in order to register a claim for asylum. Despite this, delay in making the application as soon as possible after arrival can damage the credibility of the claim. After a claim has been registered, an applicant accommodated in the Direct Provision system of accommodation will be funded by a Department of Social Protection representative (formerly known as Community Welfare Officers) to travel to official appointments which includes further attendance at the ORAC office in connection with their application for asylum.
At the screening process with ORAC, the applicant makes a formal declaration that they wish to apply for asylum, this is known as the Section 8 declaration, which refers to the relevant Section in the 1996 Refugee Act. The applicant is interviewed by an authorised officer of ORAC to establish basic information, which is inserted into a form entitled ‘ASY1’. The interview takes place in a room (where other people are waiting and being interviewed) and is conducted by an official who sits behind a screen. If necessary, an interpreter may be made available if this is possible.
The applicant is required to be photographed and finger-printed. If the applicant refuses to be fingerprinted, they will be deemed not to have made reasonable effort to establish their true identity and to have failed to cooperate. Occasionally this can lead to detention and will likely affect the credibility of the application.
The short initial interview seeks to establish identity, details of the journey taken to Ireland, including countries passed through in which there was an opportunity to claim asylum; any assistance obtained over the journey; the method of entry into the state (legally or otherwise); brief details of why the applicant wishes to claim asylum and preferred language. This interview usually takes place on the day that the person attends ORAC. If the person is detained, the interview may take place in prison.
The information taken at the screening interview enables ORAC to ascertain if the person applying for asylum has submitted an application for asylum in, or travelled through, another EU country by making enquiries through Eurodac.
At the end of the interview the applicant is given detailed information on the asylum process. This information is available in 24 languages. The applicant is given a long Questionnaire which must be completed and returned at a specified time and date, usually ten working days but possibly fewer. The information supplied in the Questionnaire will be considered in assessing the asylum application.
The Questionnaire is available in 24 languages, so that anyone able to read and write in one of those languages may be able to complete the Questionnaire in a familiar language. Part 1 requests biographical information. Part 2 requests documentation or an explanation if no documents are available. Part 3 is about the basis of the claim: reason for leaving country of origin; grounds for fearing persecution; membership of any political, religious, or military organisation; fear of authorities; steps taken to seek protection of authorities or internally relocate; incidents of arrest or imprisonment of the applicant or friends or relatives; and reasons for fear of return. Part 4 addresses travel details including any previous trips or residence abroad, applications for visas, assistance with journey and any previous applications for asylum. Part 5 asks for information about completion of the Questionnaire and any assistance given.
The applicant is issued a Temporary Residence Certificate which comes in the form of a plastic card and referred to the Reception and Integration Agency (RIA), from where the applicant will be taken to Balseskin Reception Centre in Dublin (near Dublin airport).
The applicant is advised that they can register with the Refugee Legal Service (RLS), a division of the Legal Aid Board.
There is no accelerated procedure for an application in which the individual delayed claiming asylum but but applications from certain nationalities (currently Nigerian) 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 as safe countries 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.
As mentioned above the Questionnaire usually has to be completed and returned to ORAC within 10 working days. At the same time as receiving the Questionnaire the applicant is also notified of the date of their substantive interview, which is usually 10 working days after the date on which the Questionnaire should be returned. If the Questionnaire is not in English it is submitted for translation.
There were no reports of push backs or refoulement. A person who arrives in Ireland seeking entry may be refused leave to land. If that person then seeks to claim asylum they should be permitted to enter the for that purpose.
- 1. Supreme Court, Order for Reference , H.N. v. Minister for Justice  IESC 58, 19 December 2012)
- 2. Irish Refugee Council, European Court judgment shows need for urgent legislative reform, 12th May 2014, available here: http://www.irishrefugeecouncil.ie/news/european-court-judgment-shows-nee...
- 3. The Garda National Immigration Bureau is a department of An Garda Síochána, which is the national police service of Ireland and who performs duties similar to border guards in other countries.