The Asylum Process
Department
of Justice, Equality and Law Reform.
Refugee
Appeals Tribunal (RAT)
Reception
and Integration Agency (RIA)
Refugee
Legal Service (RLS)
Refugee
Documentation Centre (RDC)
Garda
National Immigration Bureau (GNIB)
Introduction
Back
to Top
The Office of the Refugee Applications
Commissioner (ORAC) is the first instance decision making body in the
Irish asylum system. The office was established under the Refugee Act,
1996 (as amended). Under the Act, the Commissioner is required to investigate
each asylum application lodged within the state and to make recommendations
to the Minister for Justice, Equality and Law Reform. The Commissioner
is also responsible for investigating applications by refugees to allow
family members to enter and reside in the State and for providing a report
to the Minister on such applications.
The Commissioner is independent in the exercise of
his or her functions.
Legal Framework
Back to Top
Ireland is a State party to the 1951 Geneva Convention
Relating to the Status of Refugees and the 1967 Protocol (acceded to
on 29th November 1956 and 6th November 1968 respectively).
Ireland is also a signatory to the Dublin Convention,
under which the state responsible for examining applications for asylum
lodged in one of the Member States of the European Communities is determined,
and is subject to the Dublin Regulation (EC 343/2003) which succeeded
that Convention.
The principal piece of domestic
legislation dealing with refugees and asylum seekers is the 1996 Refugee
Act, which entered into force in 2000. The Act incorporates the 1951
Geneva Convention into domestic law. It provides for the establishment
of ORAC as well as the Refugee Appeals Tribunal and sets out a framework
for the determination of asylum applications. (The 1996 Act has been
amended by the Immigration Act 1999, the Illegal Immigrants (Trafficing)
Act 2000 and the Immigration Act 2003)
Prior to the commencement in
full of the Refugee Act, Ireland examined applications for asylum in
accordance with administrative procedures. These were first formalised
in 1995in a set of procedures known as the Van Arnim procedures. Following
a significant increase in number of people applying for asylum in Ireland,
these procedures were replaced in 1997 with new arrangements known as
the Hope Hanlan procedures ( in both cases the procedures were set out
in a letter to the UNHCR representative with responsibility for Ireland
at the time and named after that official). These administrative procedures
have been entirely replaced by the provisions of the Refugee Act.
Criteria for the Grant of Refugee Status
Back to Top
A refugee in Irish law is someone 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, unwilling to avail himself or herself of the protection
of that country......" (section 2 of the Refugee Act, mirroring
Article 1 of the 1951 Geneva Convention). The Refugee Act explicitly
states that 'social group' can include membership of a trade union or
a group of people whose defining characteristic is their belonging to
the female or male sex or having a particular sexual orientation.
Refugee status is granted if an applicant meets the
requirements set out in the above definition. If granted, this status
provides protection against return to the person's country of origin
or residence, and includes the right to family reunification of immediate
family members. A recognised refugee is entitled to work or operate a
business and to access medical, social welfare and education services
on the same basis as Irish citizens. They are also provided with a residence
permit by the Immigration authorities and may apply for a 1951 Convention
Travel Document.
Legal and Administrative Framework for Decision
Making
Back to Top
Section 9 (1) of the Refugee Act provides that a person
who arrives at the frontiers of the state seeking asylum or otherwise
indicating an unwillingness to leave the State for fear of persecution,
shall be given leave to enter the State. The Act provides that persons
arriving at the frontiers of the state seeking asylum are initially dealt
with by an Immigration Officer. The Immigration Officer conducts a preliminary
interview with the applicant. The purpose of this interview, which is
provided for in section 8(2) of the Act, is to establish inter alia:
whether the person wishes to make an application for a declaration for
refugee status and, if so, the general grounds upon which the application
is based, the identity of the person and their nationality, transport
and route taken to reach Ireland as well as the legal basis for entry
into or presence in the State. The Act also specifies that the interview
shall be conducted in the presence of an interpreter where necessary
and possible. Any person entering the state who declares that they intend
to seek asylum in Ireland is required to report to ORAC for the further
processing of their application. Persons who do not present themselves
at the frontiers of the State may apply directly at the ORAC office in
Dublin. In such cases the preliminary interview is conducted by a designated
official of ORAC. In practice, most applications are in fact made directly
at the ORAC office.
Following the preliminary interview,
a standard form (an ASY1 form) is completed and signed by the applicant.
This contains the individual's biographical data and a brief outline
of their claim. The applicant is then given a detailed questionnaire,
which requires him or her to provide biographical and other personal
details, travel particulars and, most importantly, the reasons for seeking
asylum. The applicant is required to return the completed questionnaire
to ORAC within two weeks. Applicants may seek legal advice from the Refugee
Legal Service (RLS), the free legal aid service for asylum seekers, in
the completion of the questionnaire and in preparation for interview. They
are also free to arrange for legal advise at their own expense. Applicants
are also photographed and fingerprinted and then issued with a Temporary
Residence Certificate/Card. This is evidence that the person has applied
for asylum but is not an identity document. All applicants are provided
with a information leaflet which sets out in detail the procedures for
processing applications. This leaflet is currently available in 24 languages.
The applicant is then referred to the Reception and
Integration Agency (RIA), which has an office in the ORAC building. RIA
is responsible for the planning, co-ordination and provision of reception
services to asylum seekers. RIA has a number of reception centres in
Dublin, where asylum seekers are accommodated initially. Applicants may
subsequently be dispersed to another accommodation centre throughout
the State. This accommodation is provided on a full board basis.
In order to investigate their
application, the applicant is invited to an interview in accordance with
Section 11 of the Refugee Act. This substantive interview is carried
out by an ORAC caseworker, with the assistance of an interpreter where
required. An applicant is also entitled to have a legal representative
present during the interview. In order to assist in evaluating the applicant's
story the ORAC caseworker researches country of origin information. They
may do this with the help and resources of the ORAC Research Section,
who may in turn source information from the Refugee Documentation Centre.
On the basis of the findings
of the preliminary interview, the completed questionnaire, the substantive
interview and any relevant documentation, including country of origin
information, the caseworker prepares a report on the application which
will incorporate a recommendation on whether or not refugee status should
be granted as well as the reasons for this recommendation. Where it is
recommended that the applicant be granted refugee status ORAC notifies
the Minister for Justice, Equality and Law Reform, who is bound by the
recommendation except where questions of national security or public
policy arise. Where a recommendation is negative, ORAC notifies the applicant
accordingly.
Applicants who receive a negative recommendation following
interview are entitled to appeal to the Refugee Appeals Tribunal. The
normal procedure is that an appeal must be made within 15 working days
of the sending of the negative decision and the applicant is entitled
to request an oral hearing for their appeal. In certain circumstances,
which are set out in the Refugee Act, the period within which an appeal
must be made is shorter and the appeal will be dealt with by the Refugee
Appeals Tribunal without an oral hearing.
In cases where applicants withdraw or fail to participate
in the process (e.g. through non-attendance at interview) a negative
recommendation is issued, against which there is no appeal.
More comprehensive detail concerning the applications process is set
out in ORAC's information leaflet for applicants, a copy of which is
available under Publications
Unaccompanied Minors
Back to Top
A child under the age of 18,
arriving at a port of entry or at the ORAC office, and who is not in
the custody of an adult, will be referred to the Health Board. The Health
Board may then decide that an application for asylum should be made on
behalf of the minor and the Health Board. Specific arrangements will
be made by ORAC in conjunction with the Health Board for the processing
of such an application and the Health Board will support the minor throughout
the process, including attending at their interview. ORAC has specially
trained caseworkers to process cases from unaccompanied minors.
Family Reunification
Back to Top
The ORAC is responsible for
the investigation of applications from persons granted refugee status
( and to whom a declaration is in force), who subsequently seek permission
for a family member to enter and reside in the State. Applications for
family reunification must be made to the Minister for Justice, Equality
and Law Reform and are subsequently referred to the ORAC.
A questionnaire, requesting the provision of
information in respect of the family members concerned, is issued to
applicants for completion. Consideration is given to the facts provided
by the applicant, and a report is compiled and forwarded to the Minister
setting out the relationship between the refugee and the person the subject
of the application, as well as the domestic circumstances of that person.
Other Organisations involved in the Asylum Process
Department of Justice, Equality and Law Reform.
Back
to Top
An application for a declaration as a refugee is
made to the Minister for Justice, Equality and Law Reform, although the
Refugee Applications Commissioner accepts the application and carries
out the initial investigation.
The Minister for Justice, Equality and Law Reform
is the person who will make the decision to either grant or refuse a
declaration as a refugee in accordance with section 17 of the Refugee
Act, 1996 (as amended). The decision of the Minister will be based on
the recommendation of the Refugee Applications Commissioner or the Refugee
Appeals Tribunal (if appropriate).
In the case of a person who has been issued a Notice
of refusal for a declaration as a refugee, the Minister may make an order
in accordance with section 3 of the Immigration Act, 1999 requiring that
person to leave the State.
The Minister also decides applications for leave to
remain. Leave to remain is a status which is granted at the discretion
of the Minister for Justice, Equality and Law Reform to persons whose
claims to asylum are not considered to meet the criteria set out in the
1951 Geneva Convention but who are not returned home for humanitarian
or for some other compelling reason. Persons granted leave to remain
have many of the same rights as persons granted refugee status.
Refugee Appeals Tribunal (RAT)
Back to Top
The function of the Refugee Appeals Tribunal is to
consider and decide appeals against recommendations of the Refugee Applications
Commissioner and make recommendations to the Minister.
An appeal is dealt with by a member of the Refugee
Appeals Tribunal, a person independent of the Minister and the Refugee
Applications Commissioner with at least 5 years experience as a practicing
solicitor or barrister.
Reception and Integration Agency (RIA)
Back
to Top
The Reception and Integration Agency is responsible
for co-ordinating the services provided to asylum seekers. These services
include the provision of accommodation, health care, education and welfare
to asylum seekers
Refugee Legal Service (RLS)
Back to Top
The RLS is the office established by the Legal Aid
Board to provide a low-cost independent and confidential legal services
to asylum seekers and refugees. The RLS can provide advice to applicants
before submission of the questionnaire or prior to attendance interview
and can also make written submissions to ORAC in support of an application.
The RLS can also provide representation before the RAT.
To qualify for legal services an individual's income
should not exceed €13,000 per annum. A charge of €6 is payable
for legal advice. For representation before the RAT or the High Court,
the applicant must pay €35. However, if an advice charge has already
been paid, the balance due will be €29. Although persons in receipt
of social welfare will generally be eligible for legal advice at the
minimum contribution rate, those in receipt of direct provision from
the state may apply to have some of their contribution waived at the
discretion of the Legal Aid Board.
The staff of the RLS includes solicitors and caseworkers.
All RLS staff are required to have Refugee Status Determination training.
Due to the demand for their services, the RLS provide most of their assistance
at appeal stage of the asylum process.
Refugee Documentation Centre (RDC)
Back to Top The Refugee Documentation Centre is an independent
library service, provided under the aegis of the Legal Aid Board. Its
role is to maintain a collection of objective and up-to-date country
of origin information and asylum, immigration, legal and human rights
documentation. The RDC serves the needs of UNHCR, RLS, ORAC, RAT, and
the Department of Justice, Equality and Law Reform. The services and
materials in the RDC are available to all organisations equally. Other
users, including barristers and solicitors may have access by prior appointment.
A research and query service is provided to the RLS, ORAC, RAT and solicitors
and barristers associated with these organisations. It is not possible
to provide a query service to members of the public, but they are free
to carry out their own research in the RDC.
Garda National Immigration Bureau (GNIB)
Back to Top
The Garda National Immigration Bureau (GNIB) is responsible
for all Garda operations pertaining to immigration matters in the State,
including the carrying out of deportation orders that are issued by the
Minister for Justice, Equality and Law Reform.