Check Against Delivery
International Protection Bill 2015
Second Stage – Dáil Éireann
Statement by Frances Fitzgerald T.D., Minister for Justice and Equality
10th December 2015
Ceann Comhairle, Deputies and concerned members of the public in attendance today,
I am pleased to have this opportunity to introduce the International Protection Bill 2015 to this House and I look forward to engaging with Deputies as we progress the Bill through the various stages.
I would also like to thank the members of both Houses who contributed to the pre-legislative scrutiny of the General Scheme of the Bill by the Joint Oireachtas Committee of Justice, Defence and Equality, which issued an interim report in July.
Purpose of the Bill
The principal purpose of the International Protection Bill is to reform the system for determining applications for international protection in Ireland through the introduction of a single applications procedure.
This delivers on the commitment given in the Statement of Government Priorities 2014-2016:
‘to legislate to reduce the length of time the asylum applicant spends in the asylum determination system and consequently in Direct Provision through the establishment of a single applications procedure’.
The Government has, therefore, singled out this aspect of our immigration and asylum system and given it special priority so that it can be addressed with specific and timely focus under today’s Bill.
It is also intended that the Bill will be in compliance with the United Nations Convention relating to the Status of Refugees and with the related EU Directives on asylum procedures and qualification into which Ireland has opted.
Working Group on the Protection Process
The publication of the Bill and its early enactment and implementation is also a key recommendation of the Report of the Working Group on Improvements to the Protection Process including Direct Provision and Supports to Asylum Seekers which was published on 30 June 2015. The Bill does not stray into other areas which have featured in commentary, such as Direct Provision. These matters are on the agenda of the Cabinet Committee on Social Policy.
The Government in addressing this unacceptable lengthy delay in processing applications, is fast tracking this Bill to end the experience of people who come to Ireland seeking protection and who end up in a long term limbo.
Indeed, the Bill now responds to 26 of the Working Group’s 78 specific recommendations in the area of the Protection Process. An analysis of these specific recommendations is available to Deputies.
The Bill mitigates many more of the Report’s recommendations and what gave cause to them. By addressing the length of time, the Bill for example, ensures that a speedy grant of status, where merited will address many of the demands for applicants delayed by a slow decision making process.
Amendments were tabled in Seanad Eireann looking for the right to work to be acknowledged after an applicant passes a period of nine months awaiting a decision. This intention under this Bill, when successfully implemented will be to deliver that decision within six months with people granted status being allowed to work.
Best Interests of the Child
We are fully committed to ensuring and have demonstrated clearly, that the best interests of the child remain at the centre of our processing standards and our law. I draw Deputies’ attention to the Government’s amendment passed by Seanad Eireann which provides that TUSLA also consider legal advice in assessing when a child in their care should become an applicant.
This Government through a referendum passed by the people, ensured that children now have full Constitutional Protection. This Bill must be read in the context of the Constitutional obligations set out in Article 42A (1). It is to be read in the context of the EU Charter of Fundamental Rights including Article 24 (1) which states ‘in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration’.
The Charter of Fundamental Rights also applies in specific circumstances pertaining to the child, as well as the best practice we embed today in our new process, which will continue to err on the side of caution where children are concerned.
The Working Group was unaware that Part 13 of this Bill, brings in key reforms in the Immigration area. The Report had called for an overarching provision on the best interests of the child in the protection area, one which all members, including State representatives agreed. This Bill has evolved considerably since the recommendation was made and has two remits protection and immigration. Reform of our Immigration and Protection laws are intertwined in this Bill and it is not possible to disentangle them. It is this legal tension alone that prevents any overarching provision on the best interests of the child being included now.
I want to acknowledge the serious and helpful engagement of Senator Jillian Van Turnhout and the Children’s Rights Alliance with my officials and their combined efforts to address this legal dilemma. I am pleased to confirm that I will be tabling some amendments at Committee stage, prompted by the Senator and the Children’s Right Alliance helpful assistance to assure everyone of our intent to place the best interest of the child at the heart of our protection process, as this Bill does.
Humanitarian Law Aspects
The recent refugee flows to, and across, our own continent, and the life-threatening risks that are being taken, highlight the fact that the asylum and protection process is one that very much has a human dimension. Its application procedure has human beings and communities on both ends.
A very real sense of who we are dealing with under this Bill, and why we are doing so, is conveyed by the fact that international protection can be secured either:
(a) as a person who is eligible for refugee protection on the basis of a well founded fear of persecution in the country of origin, or
(b) as a person who is eligible for subsidiary protection on the basis of a real risk of suffering serious harm if returned to the country of origin.
The introduction of a new, fair and streamlined procedure will, in my view, help remove some of the human stresses and strains that have arisen for all concerned under the present cumbersome, multi-layered and sequential application framework and its ensuing delays.
Under the Bill’s proposed procedure, an applicant will make one application only, and will have all grounds for seeking international protection, and for being permitted to remain in the State, examined and determined in one proper process.
In keeping with the Geneva Convention, persecution can arise under the Bill by reason of race, religion, nationality, political opinion or membership of a particular social group. Acts of persecution are defined in the Bill as constituting a severe violation of human rights.
The term “serious harm” is defined to include execution, torture or serious threat to a civilian’s life in a situation of armed conflict.
The term “international protection” is defined as status in the State either as a refugee, or, as a person eligible for subsidiary protection on the basis of a declaration given under the Bill.
In broad terms, the introduction of the single application procedure will include the following benefits:
· Ireland’s international protection system will be brought into line with other EU Member States;
· Speedier and proper processing of new applications for international protection;
· significantly reduced time for applicants in direct provision accommodation and in its costs to the State.
Under section 6 of the Bill there will be changes made to current legislation. In particular, the Refugee Act is repealed. Originally enacted in 1996, it has been heavily amended over the years and its provisions will be significantly updated by the Bill.
The Bill will also see the revocation of a number of sets of Regulations made under the European Communities Act in the period 2006 to 2015 for the purpose of giving effect in Irish law to provisions of EU Directives in the field of asylum. I am very pleased that this Bill provides the opportunity to have these legislative aspects tidied up and consolidated under one roof.
Deportation and border control
The Government is committed to a balanced migration policy. The reform to the Protection system will ensure that Ireland effectively lives up to our international humanitarian obligations. The accompanying changes to the Immigration laws will ensure that Ireland is equally effective in enforcing deportations and border controls to prevent and tackle those wishing to enter and remain illegally in the country, without proper cause.
The Bill contains important new amendments to the Immigration Acts relating to deportation and border control, along with a number aimed at improving the effectiveness of legislative provisions dealing with:
· the arrest, detention and removal of non-nationals against whom a deportation is in force.
· the removal from the State of persons refused leave to land.
· the appointment of immigration officers in the context of the ongoing civilianisation of border control duties.
· the designation of an approved port for the purposes of entry into the State.
The enactment of this Bill will involve key structural changes being made to the present administration of our asylum and protection regime.
The Bill’s repeal of the Refugee Act 1996 will effectively abolish the Office of the Refugee Applications Commissioner (ORAC) and the Refugee Appeals Tribunal (RAT).
A new International Protection Appeals Tribunal will replace the existing Refugee Appeals Tribunal, providing effective remedy against decisions taken on applications, including a decision to refuse. The new Tribunal will be independent in its functions, and designed to enable the efficient conduct of its business and consistency in its decisions.
The Office of the Refugee Applications Commissioner will be replaced by a dedicated unit within my Department acting as the determining authority at first instance for applications for international protection. This unit will be known as the Protection Office.
Priority has been given to ensuring that existing best practice and standards in relation to the processing of asylum and subsidiary protection applications will be embedded and maintained under the new dispensation. Existing management and staff and others experienced in the processing of protection applications, who are trained to UNHCR standards, will transfer to the new Protection Office.
About the Bill
I would now like to turn to the architecture and provisions of the new Bill. In so doing I will point to, rather than rehearse, the detailed section-by-section information given in the Bill’s Explanatory Memorandum which Deputies will also wish to consult.
· The Bill consists of 77 sections laid out in 13 Parts which are followed by 2 Schedules.
· Part 1 of the Bill contains six sections dealing with such matters as commencement, interpretation, regulations, expenses and other aspects.
· Parts 2 to 10 of the Bill deal with the new arrangements in the international protection framework.
· Parts 11 and 12 deal with transitional and miscellaneous matters.
· Part 13 deals with various amendments in relation to immigration legislation.
· Schedules 1 and 2 set out, for ease of reference, the text of the 1951 Convention and the 1967 Protocol relating to the Status of Refuges.
Part 2 of the Bill deals with qualification for international protection and consists of sections 7 to 12. These provisions are intended to be in compliance with the EU Asylum Qualification Directive 2004/83/EC. The Directive was adopted in 2004 and recast in 2011 to provide a uniform status in the EU Member States for refugees or for persons eligible for subsidiary protection. The Bill has been prepared also to be in compliance with the 2011 recast.
Section 7 sets out the acts of persecution constituting a severe violation of basic human rights, or an accumulation of violations of human rights, which are sufficiently severe. Section 8 sets out an elaboration of the reasons for persecution which are contained in the United Nations Convention relating to the Status of Refugees.
Sections 9 to 12 sets out the circumstances in which a person shall be excluded from, or cease to be eligible for, international protection.
Part 3 of the Bill deals with applications for international protection and consists of sections 13 to 25.
Section 13 provides for the conducting of a preliminary interview with a person who may wish to apply for international protection in Ireland. Section 14 provides for the Child and Family Agency to be notified of an unaccompanied person under the age of 18 years who is seeking to make an application. Sections 15 to 17 set out the procedure for making an application for international protection and giving permission to an applicant to remain in the State for the duration of the single procedure. While provision is made in section 18 to issue to an applicant a statement in writing specifying the procedures to be followed under the Bill. Section 19 provides for the taking of the fingerprints of applicants. Section 20 provides for grounds for the detention of an applicant under the supervision of the District Court. Sections 21 and 22 deal with matters relating to inadmissible applications and subsequent applications.
Section 23 provides that the Minister or the International Protection Appeals Tribunal may require an examination of an applicant in relation to his or her physical or psychological health. Section 24 provides for examination to determine the age of an applicant who is presenting as an unaccompanied minor. Section 25 provides for the protection of the identity of an applicant under which the Minister and Tribunal are obliged to take all practicable steps to ensure that the identity of an applicant is kept confidential.
Part 4 of the Bill deals with the assessment of applications for international protection and consists of sections 26 to 32.
Section 26 provides that it shall be the duty of the applicant to cooperate in the examination of his or her application while section 27 provides for the assessment of the facts and circumstances of the application on an individual basis. Section 28 deals with international protection needs based on events which have taken place since the applicant left his or her country of origin. Section 29 provides that actors of persecution or serious harm include a state, parties controlling a state or part of a state, or non-state actors where protection against persecution or serious harm is not provided.
Section 30 provides that protection against persecution or serious harm can only be provided by a state or parties controlling a state or part of a state, provided they are willing and able to offer protection which is effective and of a non-temporary nature.
Section 31 deals with the concept of internal protection whereby a part of the country of origin is safe for an applicant. Section 32 provides for a finding that the country of origin is safe in respect of an individual applicant.
Part 5 of the Bill deals with the examination of applications for international protection at first instance and consists of sections 33 to 39.
Section 33 provides for the examination of an application by an authorised officer to determine first if the applicant should be given a refugee declaration, and if not, if the applicant should be given a subsidiary protection declaration. Section 34 provides that as part of the examination the applicant shall be the subject of a personal interview.
Section 35 sets out certain guarantees applicable in the case of applicants who are unaccompanied minors including that the interview is conducted by a person who has the necessary knowledge of the special needs of minors. Section 36 provides that an applicant may withdraw his or her application. Section 37 deals with the circumstances in which an applicant can be deemed not to have made a genuine effort to substantiate his or her application. Section 38 deals with the report of the examination and determination of an application.
Section 39 provides for the notification to the applicant of the result of the examination his or her application at first instance. Where the recommendation is to refuse international protection the recommendation shall be accompanied by a statement of the reasons for that refusal.
Part 6 of the Bill deals with appeals to the International Protection Appeals Tribunal and consists of sections 40 to 45. These provisions are intended to be in compliance with the EU Directive on Asylum Procedures which provides for the right to an effective remedy before a court or tribunal against a decision taken on an application for international protection.
Section 40 provides that an appeal to the Tribunal may be brought by notice in writing within 15 days of the sending of the notification of the recommendation at first instance to either refuse refugee status or to refuse both refugee status and subsidiary protection. Section 41 provides for the holding of an oral hearing by the Tribunal for the purpose of an appeal.
Section 42 provides for accelerated appeals procedures in the case of applicants who are subject to additional findings. Section 43 provides for the Minister to furnish information to the Tribunal and make further inquiries for the purposes of an appeal by an applicant.
Section 44 provides that an applicant may withdraw his or her appeal by notice in writing and sets out those circumstances of non-cooperation where an application may come to be deemed withdrawn.
Section 45 provides for the decision of the Tribunal on an appeal which shall be communicated to the applicant concerned.
Part 7 of the Bill deals with the various outcomes for applicants for international protection and consists of sections 46 to 51. These provisions represent the watershed of the new applications procedure. In summary, in respect of an application for international protection which is admissible for processing in Ireland and is not subsequently withdrawn, the applicant concerned can have one of the following outcomes:
· refugee status,
· subsidiary protection status,
· permission to remain in the State,
· voluntary return to the country of origin, or
· deportation order.
Section 46 provides for the giving of, and the refusal to give, a declaration of refugee status or of subsidiary protection status. On the other hand, section 47 provides for the option to voluntarily return to the country of origin.
Section 48 provides that the Minister shall, in the case of an applicant who is being refused international protection, consider whether the applicant should be given permission to remain in the State and provides that in making this decision the Minister shall have regard to the applicant’s family and personal circumstances and his or her right to respect for his or her private and family life. This makes it clear, that the Minister, in making a decision, shall have regard to the provisions of Article 8 of the European Convention on Human Rights.
Section 49 provides for the prohibition of refoulement (return) based the Refugee Convention and the European Convention on Human Rights. Section 50 provides for the making of a deportation order. Section 51 provides for a procedure for the revocation of international protection status, principally where the person is excluded from, or has ceased to be eligible for, international protection.
Part 8 of the Bill deals with international protection aspects and consists of sections 52 to 57.
Section 52 provides for the extension to persons who are given a refugee declaration or a subsidiary protection declaration of rights to which Irish citizens are entitled such as access to the labour market, health, social welfare and housing services. Sections 53 and 54 provide for the granting of permission to reside and travel documents.
Sections 55 and 56 provide for family members of persons with international protection status to be given permission to enter and to reside in the State.
Section 57 provides that in the application of this part of the Bill due regard shall be had to the situation of vulnerable persons and that the best interests of the child shall be a primary consideration.
Part 9 of the Bill provides for matters relating to programme refugees and temporary protection of displaced persons. Section 58 provides for the admission to the State of persons for resettlement, which is usually in cooperation with the United Nations High Commissioner for Refugees. Section 59 provides in more detail than existing legislation for the EU Temporary Protection Directive of 2001 which, if invoked under the terms of the Directive by a Decision of the Council of the European Union, would promote a balance of efforts between Member States in receiving a mass influx of displaced third-country nationals.
Part 10 of the Bill deals with the International Protection Appeals Tribunal and consists of sections 60 to 66. This new Tribunal will replace the existing Refugee Appeals Tribunal. The Tribunal will determine appeals against a decision made in relation to an application for international protection, including a refusal of international protection.
Section 60 provides for the establishment of the International Protection Appeals Tribunal which shall be independent in the performance of its functions. Section 61 provides that the Tribunal shall consist of a chairperson, not more than 2 deputy chairpersons and such number of other members as the Minister may appoint with the consent of the Minister for Public Expenditure and Reform. Sections 62 to 66 provide for the functions and roles of the chairperson, deputy chairpersons, members and the Registrar of the Tribunal.
Part 11 of the Bill deals with transitional provisions and consists of sections 67 to 70.
Section 67 provides for the continued detention under the new legislation of a person who is detained under section 9 of the Refugee Act 1996. Section 68 provides for the continuation under the Act of declarations and permissions given under the repealed enactments. Section 69 deals with transitional provisions relating to caseloads under the existing asylum legislation and for the transfer of existing asylum applications into applications for international protection under the new Act. Section 70 deals with transitional provisions relating to the International Protection Appeals Tribunal and provides for the transfer of the business of the Refugee Appeals Tribunal to the new Tribunal.
Part 12 of the Bill deals with miscellaneous matters and consists of sections 71 to 73.
Section 71 deals with the designation of safe countries of origin. Section 72 provides for prioritisation of applications and appeals. Section 73 provides that the Minister may enter into contracts for services with persons to assist him or her in the performance of his or her functions under the Act.
Part 13 of the Bill deals with miscellaneous amendments and consists of sections 74 to 77.
As intended by this Bill, an effective immigration and asylum system must ensure that those entitled to a positive decision receive it as soon as possible. At the same time we must also provide effective safeguards for removing those without the sustainable grounds for remaining in Ireland. The amendments found in this Part of the Bill therefore address, among other things, a number of gaps in our existing legislation in the area of deportation that have been identified in court proceedings.
Section 74 provides for the substitution of section 5 of the Immigration Act 1999 dealing with the arrest, detention and removal of non-nationals against whom a deportation order is in force.
Section 75 amends section 5 of the Illegal Immigrants (Trafficking) Act 2000 to cover the judicial review of the specified decisions under this Bill.
Section 76 provides for the amendment of section 5 of the Immigration Act 2003 dealing with removal from the State of persons refused leave to land. The amendment is to provide for detention at ports and airports for a very short period pending removal.
Section 77(a) provides for the amendment of section 3 of the Immigration Act 2004 regarding appointment of immigration officers. Essentially it is intended to for greater flexibility where the immigration officer is a civilian who does not necessarily need the same powers as his of her Garda counterpart.
Section 77(b) provides for an amendment of section 5(1) of the Immigration Act 2004 to make absolutely clear the existing situation whereby permission to remain encompasses circumstances where a person’s permission to be in the State is deemed to arise from the inherent executive power of the Minister.
Section 77(c) provides for the amendment of section 6 of the Immigration Act 2004 in order to expand the powers available to the Minister for designating a place to be an approved port for the purposes of entry into the State, along with new related offences.
In concluding the introduction of this Bill to Dail Eireann, I assure deputies that this Bill will bring important efficiencies, proper procedures and operational clarity to all stages of the protection process. It will provide applicants with a final decision on their status in a fair, straightforward and timely fashion and will also, as a consequence, reduce the length of time applicants spend in the Direct Provision system.
At the same time, it will allow for the identification, at a much earlier stage, of persons who have no entitlement to stay in the State and who can safely return to their country of origin.
I thank Deputies for their support for, and engagement with, this long overdue reforming legislation. While I know there is more work to be done in terms of broader migration policy, this specific Bill reforming the protection process represents an important reform in streamlining our asylum and protection provisions for the dignity of all concerned. In that spirit, I look forward to our debate of its provisions and the reforms which it can put in place and I commend the Bill to the House.