WHAT IS AN ASYLUM SEEKER?
An Asylum Seeker is a person who seeks to be recognised as a refugee in accordance with the terms of the 1951 Geneva Convention Relating to the Status of Refugees and the related 1967 Protocol, which provide the foundation for the system of protection for refugees generally as defined in Section 2 of the International Protection Act 2015.
The law governing refugees and the processing of claims for refugee status in Ireland is set out in the Refugee Act, 1996 as amended by section 11(1) of the Immigration Act, 1999, by section 9 of the Illegal Immigrants (Trafficking) Act, 2000, by section 7 of the Immigration Act, 2003, the Orders, Regulations and Directions made under that Act and the International Protection Act 2015.
WHAT IS A REFUGEE?
A Refugee is defined in section 2 of the Refugee Act, 1996 (as amended) as “a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
“Membership of a particular social group” includes membership of a trade union and also includes membership of a group of persons whose defining characteristic is their belonging to the female or the male sex or having a particular sexual orientation.
If you believe that you qualify as a refugee as defined in section 2 of the Refugee Act, you may apply to the Minister for Justice, Equality and Law Reform for a declaration as a refugee and seek the protection of the State.
THE ASYLUM APPLICATION PROCESS, HOW IT WORKS!
The International Protection Office and the International Protection Tribunal are both statutorily independent offices established under the Refugee Act.
An application for a declaration as a refugee will be dealt with in the first instance by The International Protection Office and who will make a recommendation in relation to your case. If the recommendation is negative and you are entitled to appeal, any such appeal will be dealt with by the International Protection Tribunal. Based on the recommendation of the International Protection Office or the decision of the International Protection Tribunal, as appropriate, a final decision on your application for refugee status will be taken by the Minister.
Where your application for a declaration as a refugee receives a positive recommendation from the International Protection Office you will be notified by registered post and the recommendation will be submitted to the Minister who will make a declaration that you are a refugee.
Where the International Protection Office makes a recommendation that you should not be declared a refugee, the normal position is that you may appeal to the International Protection Appeals Tribunal against the recommendation within fifteen working days from the sending of the notice. You will also be furnished with the reasons for the recommendation including the material which was relied upon in coming to the recommendation. You are entitled to request an oral hearing for this appeal. If you appeal but do not request an oral hearing, your appeal will be dealt with by the Tribunal without an oral hearing.
Where the International Protection Office negative recommendation includes among its findings any one of the additional findings listed under section 13(6) of the Act you may appeal to the International Protection Appeals Tribunal against the recommendation within ten working days from the sending of the notice. The notice will be sent to you by registered post and to your solicitor (if known). Any such appeal will be dealt with by the Tribunal without an oral hearing.
You will be notified in writing of the decision of the International Protection Appeals Tribunal. A copy of the decision will be forwarded to the Minister who, in the case of a negative recommendation, may decide to refuse to give you a declaration as a refugee and make arrangements for your removal from the State. If the decision of the International Protection Appeals Tribunal is positive, you will be given a declaration as a refugee by the Minister subject to considerations of national security or public policy
If the Minister decides not to give you a declaration as a refugee, you will be sent a Notice in writing stating that: –
- your application for a declaration as a refugee has been refused;
- the period of your entitlement to remain in the State has expired;
- the Minister proposes to make a deportation order under section 3 of the Immigration Act, 1999 requiring that you leave the State.
Where the Minister proposes to make a deportation, order requiring you to leave the State, you will be given three options. These options are:
(i) to make representations to the Minister within fifteen working days setting out why you should be allowed remain in the State;
(ii) to leave the State before the Minister decides the matter and inform the Minister in writing of the arrangements you have made for this purpose; to avail of assistance with voluntary return.
(iii) to consent to the making of the deportation order within fifteen working days.
If you chose option (i), then an application for Subsidiary Protection and representations pursuant to S3 of the Immigration Act 1999 for humanitarian leave to remain in the State.
Subsidiary Protection arises out of protection arises out of EU law (Directive 2004/83/EC of 29 April 2004) and was transposed into Irish law pursuant to Statutory Instrument 518 of 2006. It is intended to be a residual category to encompass those persons who, while not considered refugees, are still deserving of international protection.
The Directive’s definition of a ‘person eligible for subsidiary protection’ is stated in Article 2(e) as:
“a third country national or stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country”
Serious harm as defined in Article 15 includes death penalty/execution, torture, inhuman/degrading treatment or punishment of an applicant in the country of origin, or a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
If you qualify for subsidiary protection you will be allowed to remain in the State and will qualify for certain rights and entitlements. In the main, the rights and benefits attached to refugee status and of those who qualify for subsidiary protection are the same. However, in recognition of the primacy of the Refugee Convention and of the fact that the need for subsidiary protection in principle is more temporary, all rights and entitlements are granted for a period of 3 years only. They include the following: Right to Family Reunification, Employment, Health and Social Welfare Services, Trade, Education and Travel. The status is renewable. Beneficiaries of subsidiary protection must be legally resident in the State for 5 years before being able to apply for naturalization.
THE INTERNATIONAL PROTECTION ACT- SINGLE PROCEDURE
The International Protection Act 2015, which came into effect on 31 December 2016, provides for a single application procedure for international protection replacing the earlier system, under which several applications could have been made. Therefore, both applications for Subsidiary Protection and Humanitarian Leave are dealt with together.
When preparing this application, reference should be made to the factors that the Minister for Justice, Equality and Law Reform must consider before deciding to deport someone are:
- the age of the person;
- the duration of residence in the State of the person;
- the family and domestic circumstances of the person;
- the nature of the persons’ connection with the State, if any;
- the employment (including self-employment) record of the person;
- the employment (including self-employment) prospects of the person;
- the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions);
- humanitarian considerations;
- any representations duly made by or on behalf of the person;
- the common good and
- considerations of national security.
Such an application is a much more broad/general application and is often seen as a “last resort” because, if a negative decision arises from such an application, then a deportation order will almost inevitably issue.
If you are granted leave to remain in Ireland you are entitled to the Register the permission to remain in the state with the Garda National Immigration following which you will be issued with a registration card with a picture and stamp 4. The Registration card needs to be renewed every year and then you should visit the Immigration office one month before the card is due to expire or upon a change address, even within the same area. The permission to remain will also be endorsed on your passport.
On registration your rights in the state will include the following: Right to Family Reunification, Employment, Health and Social Welfare Services, Trade, Education and Travel. Similar to Subsidiary Protection beneficiaries of humanitarian leave to remain must be legally resident in the State for 5 years before being able to apply for naturalization.
It is important to note that a Supreme Court judgment on judicial review of asylum cases means an applicant’s fundamental rights must be considered if they are at stake in the decision.
In the same case, the Irish Times has also reported that the Applicant, a national of Nigeria who won this important Supreme Court judgment
with wider implications for asylum seekers and other cases relating to fundamental rights, has been awarded substantial costs against the State of the final stage of her legal battle to avoid deportation.
The solicitors at Sinnott Solicitors believe that in accordance with the 1951 Convention Relating to the Status of Refugees, every person who claims asylum has the right to have a fair and transparent decision on their application. We specialise in all aspects of Asylum/Refugee Law from the initial stages at IPAT right through to leave to remain, subsidiary protection and deportation stage. We can offer you extensive confidential advice on any queries which you may have. We are also experts in Asylum Judicial Review Applications and can offer professional and expert advice on the Judicial Review of decisions in the High Court at all stages of the Asylum process.