Grainne Brophy Managing Solicitor Refugee Legal Service

1. Grainne Brophy Managing Solicitor Refugee Legal Service

2. Comparative Overview • Replacement of Office of Refugee Applications Commissioner by Irish Naturalisation Immigration Service – no longer Independent Statutory body, if Application for Protection to I.N.I.S. unsuccessful - unless appeal submitted within statutory time limit, Protection Temporary Residence Permit expires and applicant unlawfully in the State • Refugee Appeals Tribunal replaced by Protection Review Tribunal • If unsuccessful appeal – No Section 3 Application under Immigration Act 1999

3. Comparative Overview • Head 53 of Scheme - Exceptionally serious reasons for permitting an applicant to remain in the State. Not obliged to take into account factors that do not relate to reasons for applicants departure from his country • Practical problems re applicants removing himself /herself from state • Potential breach of Art 3 of European Convention on Human Rights and Convention against Torture

4. Burden of Proof/ Credibility • Burden of Proof - Head 47 – Amendment to Section 11 of Refugee Act for Applicant to establish he/she entitled to protection in the State Case law relating to Burden of Proof Pasic v Minister for Justice Equality and Law Reform Peart J 23/02/2005 • Credibility – Head 48 – Amendment to Section 11 of Refugee Act Jurisprudence from the High Court re Credibility Bujari – Finlay Geoghegan J 07/05/2003 Da Silveria – Peart J 09/07/2004 Zhuckova - Clarke J 26/11/2004 “A finding of lack of credibility has to be based on a rational analysis which explained why, in the view of the deciding officer, the truth had not been told.” Must be a finding re core facts of claim. Sango - Peart J 24/11/2005

5. Protection Review Tribunal • Head 54 – Tribunal inquisitorial in function • Head 57 – Power of Chairman to refer decision to High Court • Head 57(8) – Power of Chairman to review draft decision of a Tribunal Member • Provision to publish guidelines or guidance notes- re Developments in the law relation to protection practice • Publication of previous decisions

6. Subsidiary Protection • Council Directive 2004 83 – minimum standards for the qualification and status of third country nationals or stateless persons who otherwise need international protection • Transposition by way of S.I.518 of 2006 • -form of Protection to persons who may not have a convention nexus • Pending Incorporation of Bill – Application for Subsidiary Protection to be made following a completed asylum application • Bill will allow for application at first instance • U v Minister for Justice Equality and Law Reform ex tempore 13/11/2006 • Regulations 5 – 10 assessment of protection Internal Re-location, Non State actors, sur place claims

7. Judicial Review • Illegal Immigrants (trafficking) Act 2000- • Application for Leave within 14 days • Establish substantial grounds • Discretion to extend time – “good and sufficient reasons” S v Minister for Justice Equality and Law Reform, Supreme Court [2002] 2IR163 • New Procedures • Head 72 –New Provisions pertaining to applicant becoming aware of material facts • or other exceptional circumstances “ no fault of applicant” • Head 72 (5) Discretion to make Order for costs against legal representation if grounds frivolous or vexatious Judgement in Kennedy v Kileen Corrugated Products 28/11/2006, Power to be exercised only if solicitor guilty of “misconduct or gross negligence”

8. Suspension of Deportation • Adebayo v Commissioner of an Garda Siochanna & Minister for Justice Equality and Law Reform, Supreme Court 02/03/2006 • Art 3 & 13 of European Convention on Human Rights Conka v Belgium Application no 51564/99 • Head 47 – • Head 72 (6) (a) application for judicial review not of itself suspend transfer or removal • 72 (6) (b) may suspend transfer – for such a period necessary to give instructions – if giving of such instructions otherwise impossible • Taking instructions from outside jurisdiction – Adebayo –Peart J 27/10/2004

9. Withdrawal / Readmission • Withdrawal of Protection – Head 46 - If Fail to attend interview – 3 Working days for explanation – 10 working days to indicate if wish to continue if fail to do so – unlawfully in State • Re-admission – amends section 17(7) of Refugee Act – Head 59. Where Minister satisfied that submission of new information – significantly adds to likelihood of new applicant qualifying for protection. Restrictive – what if statutory deadline –missed by his legal representative

10. Minors • S.8 (5) (a) Refugee Act – No definition of what constitutes an unaccompanied Child/ separated child • UNHCR statement of Good Practice “ a child who is under 18 years of age and who is separated from both parents and is not being cared for by an adult who by law or custom has responsibility to do so” • Recent report from Law Society – Recommendation that a uniform definition of separated child be adopted in legislation • DNA Testing – where re-unification of child with adult relative • Head 17 - Responsible adult - not defined • Separated Children in Europe Programme – advisor should have necessary expertise in the field of child care. • Age Assessment – Discretionary, no formal appeal M v Office of Refugee Application Commissioner 06/10/2005 • Access to Court Requirement of Next Friend by Superior Court rules • Minors being denied access – absence of next friend • Scheme of Bill does not reflect international practice or comply with obligations on Rights of the Child.

11. Conclusions • First Instance investigation no longer Independent Statutory body • Issue re denying asylum seekers rights to marry – Head 67 • Non – refoulement – Head 38 – Should not be subject to exemption. • Failure to adopt provisions re unaccompanied Minors • Provisions re non suspension of Deportation