IRC-Submission-on-the-IRP-Bill-2008

The Right to Protection
Submission to the Oireachtas Joint Committee on Justice, Equality ,
Defence and Women’s Rights on the protection aspects of the
Immigration, Residence and Protection Bill, 2008
March 2008
Contents
Introduction: A historic opportunity
A: Protection
1. Non-refoulement
2. Carrier liability
3. Detention
4. Applications “deemed withdrawn”
B: Fair hearing
5. Single Decision Process/First Instance
6. Children deemed part of their parents’ application
7. The Protection Review Tribunal (“PRT”)
8. Compelling Reasons and humanitarian considerations
9. Judicial Review
10. Biometric Data
C: Vulnerable groups
11. Protection for suspected victims of trafficking
12. Protection for separated children
Transition
88 Capel Street, Dublin 1
info@irishrefugeecouncil.ie; www.irishrefugeecouncil.ie

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Introduction: A historic opportunity
The Irish Refugee Council welcomes the publication of the Immigration, Residence and Protection
Bill, 2008. As the first complete review of asylum and protection legislation since 1996, this Bill
provides a historic opportunity to learn from the experience of the last decade and to put in place a
fair and humane protection system in line with international best practice.
We support the idea of a single procedure to assess all forms of protection needs. The current
system whereby asylum seekers, including many families, can wait for years in direct provision
accommodation, not allowed to work or study and trying to live on €19.10 per week, leads to
asylum seekers becoming de-skilled, demoralised and in many cases severely depressed, as well as
being costly to the State.
The introduction of the single procedure, however, makes it even more imperative that the system
of determining applications is fair, rigorous and transparent. The decision on an application for
protection can quite literally mean life or death for applicants and, as a State with a commitment to
compliance with international law, we cannot afford to get it wrong.
The Irish Refugee Council has worked with Government and other stakeholders to defend the rights
and interests of asylum seekers and refugees since 1989. This submission draws on the experience
of that work, on the views of people seeking protection in Ireland, on the views of the legal
profession and other NGOs and on international best practice.
The Irish Refugee Council proposes that three main groups of changes to the Bill, as published,
would bring it into line with internationally accepted best practice. These are:
A. Protection: Upholding the central principle of ‘non-refoulement’, that no one can be
returned to a place where they face danger of persecution;
B. Fair Hearing: Ensuring that the process for assessing claims for protection, at initial and
appeals stages, is fair, rigorous and transparent
C. Vulnerable groups: This submission concentrates particularly on the needs of separated
children and suspected victims of traffiking. Separate and more detailed submissions on
these two issues are also being sent to the Committee.
Specific proposals in all of these areas are laid out in the attached document.
This is not a comprehensive list of our concerns, and we are aware that other NGOs will highlight
concerns in areas such as the right to marry, family re-unification etc.
We look forward to an opportunity to discuss these issues directly with the Committee.
______________ ______________
Dr. Siobhan Mullally Robin Hanan
Chairperson CEO

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A: Protection
1. Non-refoulement
The principal of non-refoulement is described by the UNHCR as the cornerstone of international
refugee protection. It is defined in Article 33 of the 1951 Refugee Convention as follows: “No
Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the
frontiers of territories where his [or her] life or freedom would be threatened on account of his [or
her] race, religion, nationality, membership of a particular social group or political opinion.”).
The definition of non-refoulement in the Bill is an improvement over the previous (2007) Bill, but
still does not provide the level of protection expected under international law. The Refugee
Convention allows refoulement only when someone in need of protection is a danger to the security
of the state or has been convicted of a particularly serious crime and constitutes a danger to the
country. We agree with the UNHCR that the Bill should be modified so that only these exceptions
to refoulement are applied. If s.53(2) is retained, a clear statement to the effect that the
implementation of the Extradition Acts 1965 and 2001 and the European Arrest Warrant 2003 must
comply with the principle of non-refoulement, as defined in article 33 of the 1951 Convention, and
as protected under international human rights law (article 3 UN Convention Against Torture
(UNCAT), article 3 ECHR, article 7 International Covenant on Civil and Political Rights (ICCPR)),
is required.
There are repeated references throughout the Bill to exceptions and restrictions based on ‘public
order’/ordre public, public health, public security and public policy. These meaning of concepts
such as ordre public is not specified in the Bill and, as such, cannot guarantee compliance with the
principle of non-refoulement, (which allows very limited exceptions under article 33(2) of the 1951
Convention, and no exceptions under article 3 ECHR, UNCAT and article 7 ICCPR).
In addition, the principle of non-refoulement is undermined in the Bill by provisions which restrict
access to the asylum process, such as Dublin Regulation rules, the “safe-third-country” and “safe-
country-of-origin concepts”, as well as rules on carrier sanctions and transporters' liability. The lack
of suspensive effect of judicial review applications and of certain categories of appeals applications
and the wide application in the Bill of new powers of summary deportation, further increase the
risks of refoulement. These risks are discussed further below. In Bugdaycay v Home Secretary,
[1987] A.C. 514, Lord Templeman noted that where the consequences of a flawed decision may
imperil life or liberty, a special responsibility lies on the decision-making process. It is our
submission that this special responsibility, arising in the context of the State’s non-refoulement
obligation, is not being met in this Bill.
2. Carrier Liability
Carrier liability improperly shifts responsibility for protection decisions from the State to carriers.
Staff working for carriers cannot be expected to be fully familiar with the State’s obligations under
international or national refugee law, and are likely to err on the side of caution in not taking
someone on board rather than risk fines or other sanctions.

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Carrier sanctions will mean that those seeking protection may be prevented from accessing the
State, in breach of the State’s obligations under the 1951 Convention. This may well have the effect
of forcing persons to rely on traffickers/smugglers or be sent home to face danger without a hearing
of their case for protection.
The Refugee Convention says (Article 31(1)): “The Contracting States shall not impose penalties,
on account of their illegal entry or presence, on refugees who, coming directly from a territory
where their life or freedom was threatened in the sense of article 1, enter or are present in their
territory without authorization, provided they present themselves without delay to the authorities
and show good cause for their illegal entry or presence.”
The Bill should allow for an asylum/protection-related defence to carrier liability and exempt
carriers where persons make protection applications upon arrival to Ireland and/or where persons
are particularly vulnerable (e.g. trafficked persons and separated children). In Belgium, France and
Luxembourg, carriers are exempted from penalties if an asylum claim is deemed admissible. In
Finland and Germany, relief from sanction is available where the asylum claim is ultimately
deemed well founded.
Section 2 (9) of the Immigration Act, 2003 clearly stated that the provisions for carrier sanctions are
‘without prejudice’ to the Refugee Act, 1996, as amended. This provision should be reinstated, as it
affirms the requirement of the 1951 Convention to providing protection to all refugees who travel to
a state party, including those without authorisation (Hathaway 2005: 386).
3. Detention
We welcome the Minister’s assurance in the Dail (Second Stage Debate on the Bill) that the current
legislation is not intended to ‘allow for the detention of asylum seekers…’ and that ‘detention could
only be introduced on foot of a Government decision and primary legislation’. Widespread
detention of people seeking protection is offensive in itself, contrary to UNHCR guidelines and
effectively criminalises people who have not committed and are not suspected of any offence.
We are, nevertheless, concerned at the extended powers of detention at the point of entry introduced
in this Bill. We welcome the Minister’s assurance in the Dail Second Stage debate that in the case
of the ‘provision which allows a person who turns up in any part of the State seeking asylum to be
held until he or she can be issued with a temporary resident’s permit, the detention is for the
minimum amount of time needed to issue the card, in most cases no more than a matter of hours.”
The Bill itself, however, has no such time limits on this type of detention. Compliance with the
constitutional protections against arbitrary arrest and detention and with ECHR and international
human rights standards require, at a minimum, that such limits and the right to challenge the legality
of detention before the courts are clearly safeguarded.
We support the statement by UNHCR:
“UNHCR recommends that detention of asylum-seekers is exceptional and should only be resorted
to where provided for by law and where necessary to achieve a legitimate purpose; proportionate
to the objectives to be achieved; and applied in a non-discriminatory manner for a minimal period.
The necessity of detention should be established in each individual case, following consideration of
alternative options, such as reporting requirements.”
There are, however, a large number of specific areas where detention is either retained or extended
in this Bill in a worrying way:

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Arrest by carriers: there is a new obligation on a carrier to detain person where so required
by an Immigration Officer (S 28 (3)). In the opinion of the IRC, it is inappropriate for
carriers to be required to detain persons on board. Such detention may be in breach of the
right to life under Article 2 of the European Convention on Human Rights (ECHR), the right
to be free from inhuman and degrading treatment under Article 3, the right to private life
under Article 8 and the right to liberty under Article 5. There are no safeguards specified in
the Bill in relation to these periods of detention. All persons should be disembarked and
examined by immigration officers on the territory.
Detention of children: S 58(1) read with S 56(3) permits the detention of children, possibly
for lengthy periods of time. S 60(2) also talks about the detention of children. In
application of article 37 of the Convention on the Rights of the Child and the principle of the
best interests of the child, children should not, as a general rule, be detained. Furthermore,
as noted by the UN Committee on the Rights of the Child (CRC) in its recent General
Comment No. 6 on Treatment of Unaccompanied and Separated Children outside their
Country of Origin: “Detention cannot be justified solely on the basis of the child being
unaccompanied or separated, or on their migratory or residence status, or lack thereof.”
Arresting and detaining people who apply for protection at the frontier (S 70). Where
an immigration officer cannot issue a protection application permit, the officer shall arrest
a protection applicant. As presently worded, S 70 fails to ensure protection of the right to be
free from arbitrary arrest and detention, in breach of Art. 40.3, article 40.4.1 of the
Constitution, Article 5 of the ECHR and Article 9 ICCPR, which require that any
deprivation of liberty must be in accordance with law and strictly required by the exigencies
of necessity and proportionality. In The People (AG) v O’Callaghan, Walsh J stated: …It
would be contrary to the concept of personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter upon which he has not been convicted or
that in any circumstances he should be deprived of his liberty, save in the most
extraordinary circumstances - to secure the preservation of the State in a time of national
emergency, for example…” In the same case, O’Dálaigh CJ held that any deprivation of
liberty must be considered a punishment. Article 5(1)(f) of the ECHR allows for detention
to effect a deportation. Here, however, s.70 contemplates a deprivation of liberty, without
specified time limits, for administrative reasons. Article 5 requires that adequate safeguards
are in place to guard against any unlawful deprivation of liberty. Further any deprivation of
liberty, in addition to being in accordance with the law, must meet requirements of necessity
and proportionality. Deprivation of liberty for administrative purposes, such as in this
instance, cannot be said to meet the requirements of necessity or proportionality. In its
current form, s.70 could lead to an excessive use of power with little or no accountability.
At a minimum, we propose limitations analogous to those provided by s4 of the Criminal
Justice Act 1984: Section 4 (3) (a) states that the period for which a person so arrested may
be detained shall, subject to the provisions of this section, not exceed six hours from the
time of his arrest.
Arrest and detention of protection applicants: The new Bill includes a new provision,
under S 71, (g) and (h), allowing for the detention of an applicant who makes a protection
application immediately before that person ought to be or was being removed from the State,
and where that application is considered to be for the purpose of delaying removal from the
State.. This would mean pre-judging the motivation for and validity of a person’s
protection application, without due process. This section should be removed.

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4. Applications “deemed withdrawn”
The Bill provides for a number of ways in which an application can be ‘deemed withdrawn’ and,
therefore, a person in need of protection can be put in danger of summary deportation from the state
without their protection needs being even considered. There are no appeal rights where a protection
application is deemed withdrawn (whether at first-instance or upon appeal).
UNHCR has pointed out that some of these provisions jeopardise the states non-refoulement
obligation.
The UNHCR’s response to the Bill expresses concern about eight ways in which an application can
be ‘deemed withdrawn’. We draw the Committee’s attention in particular to the following:
1. Failure to dwell or remain in a particular place or district in the State (S 68 (6)(a): this
is confusing, since at present different Ministerial and Government statements are
contradictory as to whether someone is obliged to stay in direct provision accommodation
centres or not. (For example, the Minister’s recent statement in the Dail: “The question
appears to imply that asylum seekers are not free to leave state accommodation centres.
That is not so. Asylum seekers are not prisoners. They are free to leave such centres, or opt
not to avail of the facilities that lie therein from their day of arrival in the state.”)
2. Failure to attend for interview/oral hearing: S. 80(2) and S. 87(1) provide that a
person’s protection application will be deemed to be withdrawn if he/she fails to attend for
interview or oral hearing and does not provide a reasonable explanation for non-attendance
within three working days. This time period is too short.
3. Failure to cooperate: S. 70 (7), 80 (3) and S 87 (2) provide that a person’s protection
application will be deemed withdrawn where it appears to the Minister/Tribunal that the
applicant is failing in his or her duty to cooperate or to furnish information relevant to the
application/appeal. For example, under S 70 (7), a person’s protection application could be
deemed withdrawn for failing to provide biometric information at the point of entry to the
state. The application could therefore be deemed withdrawn before any assessment of the
protection claim.
The consequences of application being deemed withdrawn under this legislation are draconian. If
an application is deemed withdrawn, the investigation shall be terminated, and the determination
shall note that the applicant is not entitled to protection in the State (see S. 80 (5) (a) (b)).
Furthermore, as provided in S 80 (5) (c) there is no appeal if an application is deemed withdrawn.
When read with S. 4 of the Bill, a person whose application/appeal is deemed withdrawn and a re-
application is not permitted (under S 89) shall be unlawful and liable to be removed without notice.
The removal without notice of such persons may breach the rule against refoulement.
We concur with UNHCR’s Comments on the Immigration Residence and Protection Bill 2008
where they advocate for stronger procedural safeguards for some categories. We agree with their
recommendation which calls for a change in the Bill so that a withdrawal results in a
discontinuation of the procedure only and the closing of the file, but not in a decision that the
applicant is not entitled to protection. A reopening of the application should be possible without
time limits upon application.

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B: Fair hearing
5. Single Decision Process/First Instance
We welcome the introduction of a single procedure for all forms of protection, to assess claims for
asylum, subsidiary protection, non-refoulement and compelling reasons. We do, however, have
significant concerns about many aspects of the extensive use of accelerated procedures in this Bill.
Some concerns about other aspects of the current asylum process continued or extended under the
Bill include:
Benefit of the doubt and shared fact-finding duty: Currently, the first instance asylum
interview is dominated by what is often referred to as a ‘culture of disbelief’, with the
examiner looking for flaws in the case being presented, giving more emphasis to
‘credibility’ than to the actual issues in protection or country information. UNHCR points
out that:
“Persons in need of international protection may arrive with the barest necessities
and frequently without any documents. In such situations, examiners should use all
the means at their disposal to search for the necessary evidence in support of the
application. Similarly, it should be kept in mind that certain information not found
relevant to the claim by the applicant may be withheld for reasons not relating to
bad faith, but to reasons to do with more subtle human and psychological factors.
This is for instance often the case in relation to information regarding the travel to
the State where the applicant may fear reprisals from smugglers if certain
information is provided.”
As established in legal principles relating to refugee law, the applicant should be given the
benefit of the doubt. Similarly, there is a shared duty of fact-finding between the applicant
and the Minister/Tribunal. We welcome the inclusion in the Bill of S 75 (2) in this regard.
We recommend that there be a specific reference in the Bill to the principles of the benefit
of the doubt and the shared duty of fact-finding and that this reference be included in S 80
(3) and S 87 (2).
Disclosure of information: There is no rule of disclosure to the applicant as to what
information is being relied on by the examiner, so that it cannot be discussed as part of the
hearing. We recommend that this Bill should require that all parties to an application know
what evidence is before the decision-maker. A rule of disclosure could assist in avoiding
misunderstandings and would avoid unnecessary appeals where misunderstandings have
arisen, due to incomplete or unreliable information being relied upon.
Recording of interviews: We propose that the Bill should also be amended to specify the
recording of interviews, which is particularly important in cases of disputed interpretation,
as in many other European jurisdictions, including the UK. Presently there is no complete
record of proceedings as the interview is only captured in summary in English by the
examiner, who is also conducting the interview and recommending a decision. Recording of
interviews also provides additional safeguards for the interviewer, and will ensure a more
robust first instance procedure.
Publication of decisions should also be required, as is considered to be good practice
internationally.
The above recommendations would not only improve the quality of the decision-making process.
They would also avoid unnecessary appeals arising from insufficiently rigorous and robust
procedures at first instance.

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6. Children deemed part of their parents’ application (Section 73 (13)).
Under Section 73 (13) “a protection application made by a foreign national…shall be deemed to be
made on behalf of all the dependants of the foreign national who are under the age of 18 years,
whether present in the State at the time of the making of the application or born or arriving in the
State subsequently”.
This appears to be in direct contravention of the recent Supreme Court decision, A.N. & ors –v-
Minister for Justice & Anor, released on 18 October 2007. In this case, the Supreme Court stated
that the deportation orders of a Nigerian mother and her five children were invalid because at no
stage in the asylum process did any documents emanating from or required by the Minister advert to
the existence of applications on behalf of the children.
Moreover, this sub-section undermines the right of every person to seek asylum (Art. 14 (1) of the
Universal Declaration of Human Rights) and the spirit of the 1951 Convention. Of course the
minor's own refugee status should be determined according to the principle of family unity
(UNHCR Handbook, paragraph 213), but this principle operates only in favour of dependants, and
not against them (paragraph 185). It’s not uncommon that children can invoke reasons on their own
account (for example: Military use of children or genital mutilation) and apply for recognition as
refugees under the 1951 Convention or the 1967 Protocol. Furthermore, where families are
separated during flight, and a child is left behind in the country of origin, joining the family after
their application is made, that child’s own experiences must be examined and his/her protection
needs assessed individually.
This provision is also contrary to the child’s ‘best interests’, as protected under article 3 CRC, and
to the State’s obligations under article 22 CRC, to provide appropriate measures of protection to
children seeking refugee status.
The section should be deleted from the Bill.
7. The Protection Review Tribunal (“PRT”)
The Protection Review Tribunal will be a vital opportunity for people denied protection at first
instance to have a more thorough and independent hearing of their case. This Tribunal will have an
even heavier responsibility than the current Refugee Appeals Tribunal which it will replace because
the single procedure effectively makes it the last stage in the protection system.
Questions have been raised about the decisions of the current Refugee Appeals Tribunal (RAT) in
the Oireachtas, the media and public debate
We support the Minister’s stated intention that the new Tribunal should be independent. In our
view, however, this is not fully reflected in the Bill, which replicates many features of the existing
legislation which have contributed to the questions over the current Tribunal, as well as some new
provisions which are of concern. These include:
a) The (non-) publication of decisions. Section 95 (5) says that “The Chairperson may, at his
or her discretion, where he or she considers the decision of the Tribunals of legal
importance, publish the decision in such manner as he or she considers reasonable”. This
falls far short of international best practice of publishing decisions, suitably anonomysed,
and the failure to publish decisions has been a source of much controversy in the RAT.
Publication is normal practice in, for example, the UK, France, Germany, New Zealand,
Australia and Canada. As Deputy Barry Andrews stated in the Dail Second Stage Debate on

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the Bill “It is essential, in the interests of consistency, that the Tribunal’s decisions be
published and circulated widely…. If people know where they stand legally, the entire
system will benefit.”
b) Access to decisions by legal representatives: Currently, a legal representative may access
and search a database of decisions of the RAT. Under the new Bill, a legal representative
will need to apply to the Chairperson of the PRT, who may provide a decision or a
representative sample. The Chairperson may refuse a request if it is considered frivolous or
vexatious. In a further bizarre but damaging twist, S 95 (7) requires an applicant’s legal
representative to bring to the attention of the Tribunal any decisions of the Tribunal any
decision which “may not tend to support the appeal.” This leads to an ‘inequality of arms’
in the process, as there is no corresponding duty on the presenting officer. As such it
offends the right to a fair hearing and is contrary to the requirements of natural justice.
c) Appointment of the Chairperson and members: We welcome the introduction of full-
time members to be appointed by the Public Appointments Service (PAS), (s. 92). We
recommend that part-time members should also be appointed by the PAS, rather than by the
Minister as the Bill stipulates. Under the new single procedure, the Tribunal will be
reviewing decisions made by the Minister. It should be noted that all current members,
including those earning over €800,000 over the last 8 years, are part-time. We would also
recommend the removal of S 137(5) which stipulates that the Chairperson of RAT shall be
deemed automatically to be the Chairperson of the PRT and shall hold office for the
unexpired period of his/her office.
d) Relevant Experience We welcome the fact that the Chairperson is required to have not less
than 5 years’ experience as a practicing barrister or solicitor, but we are concerned that other
members of the Tribunal are not required to have legal experience. Under this Bill, an
applicant for protection may go through the whole process from application to deportation
without having her/his case considered by a legally qualified person.
e) Functions of Chairperson. In S 93 (5) (b), the Chairperson is given power to re-assign
business from one member to another. It is unclear from the wording whether a case which
has been decided can be re-assigned and whether the applicant will be notified of such a
change. We also question the need for the Chairperson to be able to delegate his/her main
functions (S 95 (11)) of assigning business to each member and receiving reports from
members, and we recommend that this section be removed or at least amended significantly
to state under which circumstances this might occur.
f) Publication of Guidelines: The Bill provides that the Chairperson can issue guidelines, but
does not specify that they must be published. In the interests of transparency and
confidence, this should be changed to require that rules of procedure and all guidelines
adopted by the PRT must be published (as is currently the position in the UK, for example).
8. Compelling Reasons/Humanitarian Considerations
The Bill provides that protection applicants who are not entitled to refugee status, subsidiary
protection or protection from refoulement, may be granted residence for compelling reasons.
However humanitarian considerations are not specified as a reason for such protection, and it is
unclear who would meet the compelling reasons criterion and whether or not residence criteria (at
Section 31) will also be applied. We are concerned that vulnerable persons who are now granted
leave to remain status as well as those who cannot be refouled may be denied residence permission
under the terms of the Bill, particularly if the residence criteria are applied.
The single procedure outlined in the Bill specifies that the Minister should assess, in order, whether
someone is entitled to protection because of: (1) being a refugee; (2) subsidiary protection; (3) non-

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refoulement and (4) compelling reasons. However, it should be possible to apply only for relevant
forms of protection if an applicant or their counsel feels that they would not qualify for asylum.
This would avoid the additional costs for the State of assessing someone for asylum who does not
feel they would qualify and the danger that the applicant’s credibility will be undermined at the
asylum’ stage, before their case for other forms of protection is heard.
It is also important that the Bill should spell out the right of separated children and trafficked
persons to temporary residence while deciding on their future status.
Some other provisions in relation to the Bill’s treatment of ‘compelling reasons’ are of concern:
When considering whether to grant a residence permit the Minister must consider whether
the presence of the applicant would give him or her an unfair advantage compared with a
person in their country of origin in similar circumstances [section 83(2)(a)]. This does not
relate to the applicant at all but to the situation of other people outside Ireland. This
provision should be deleted.
The Minister shall not be obliged to take account of factors that do not relate to the
applicant’s departure from his/her country of origin or that have arisen since that departure.
This might apply in particular to victims of trafficking and separated children
9. Judicial Review
Access to judicial review, which provides crucial judicial oversight of the asylum process, is
severely curtailed by s.118 of the Bill. Judicial review plays a central role in the Irish legal system,
in safeguarding compliance with the Constitution, the ECHR and requirements of due process.
The additional restrictions imposed in s.118 (3) could potentially remove an important check on the
asylum process. As we have seen to date, such checks and balances are essential to ensuring that the
asylum process meets the standards that legislation and policy seeks to achieve. These restrictions
may also contravene article 13 of the ECHR, which provides a right to an effective remedy,
including where non-refoulement rights in article 3 may be threatened.
Our concerns about the limitations on judicial review include:
The two week time limit for bringing a High Court application, S 118 (2): There is a
danger that this will severely limit protection applicants’ access to the courts and counsels’
ability to sufficiently prepare the applications. The High Court provides that, in most other
areas of the law, applicants have three months or six months to make an application. The
two-week time limit was provided for in the Illegal Immigrants (Trafficking) Act 2000. The
Law Reform Commission’s Report on ‘Judicial Review Procedure’ (2004) has
recommended that the fixed time limit on applications for judicial review of limited type of
decisions be increased to 28 days. In the Illegal Immigrants Trafficking Act there is
discretion for courts to extend this period, but s. 118 (3) of the IRP Bill purports to curtail
the High Court’s ability to do this. This unduly fetters the discretion of the courts,
undermines the right of access to the courts (article 40.3 Macauley v Minister for Posts and
Telegraphs 1966 IR 345, and the right to an effective remedy (art.13 ECHR), where non-
refoulement rights may be threatened. We therefore recommend that the 14-day time limit
be amended to 28 days and that the restrictions on the courts’ powers to extend existing time
limits be removed.
Allowing costs to be awarded against legal representatives: The highly-publicised
provisions of Section 118 (7) and (8) provide for all or part of the costs to be borne by the

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applicant’s legal representative where the grounds are considered “frivolous or vexatious”.
This section could act as a deterrent to legal practitioners, particularly in the context of tight
time limits. As such, it may further limit access to the courts, undermining the effectiveness
of the remedy of judicial review. This provision has not been implemented in any other area
of law. Since an applicant cannot proceed with judicial review proceedings unless leave is
granted by the Court, and an arguable case established, it is not clear how such a scenario
could arise in practice. We recommend that subsections (7) and (8) be struck out.
Non-suspensive effect of judicial review: S 118 (9) provides that an application by a
foreign national for leave to apply for judicial review (of transfer or deportation) shall not of
itself suspend or prevent his or her transfer or... removal from the State. This means that, in
many cases, applicants will not be able to proceed with judicial review, or gain from the
remedies, because they have already been deported and possibly placed in danger. Article
13 of ECHR implies the right to remain in the state until all remedies have been exhausted.
Under the Bill (s. 23) the Protection Application Entry Permission is only valid until the
sending of a decision to refuse protection status by the Tribunal or until an application is
deemed to be withdrawn. As such, a person will be unlawful in the State and may be
removed before they have a possibility to make an application for leave to apply for judicial
review. We propose that S 118 (9) should be deleted and that there should be judicial review
with suspensive effect. In other words, the applicant should remain in the State until the
judicial review proceedings have been determined.
10.Biometric Data Procurement and Exchange of Information
S 108 (1) requires a foreign national to furnish on demand to the Minister, an immigration officer, a
member of the Garda Siochana or a member of the civilian staff of the Garda Siochana such
biometric information in such manner as may be reasonably be “required for the purposes of the
performance of his or her functions under this act”. The term “Biometric information” should be
better defined throughout the Bill. It could mean, for example, fingerprinting, iris scanning, facial
recognition, DNA identification etc.
The purposes of the data collection are not well defined, which seems to be out of line with the
principle that: “the data shall have been obtained only for one or more specified, explicit and
legitimate purposes” (Data Protection Act 1988, S. 2 (c) (i), and Art. 6 (1b) of the Directive 95/46).
Under S 108 (8) and (9), it’s not clear what happen with the biometric data of a foreign national if
s/he doesn’t become an Irish citizen. A maximum retention period of 10 years should be specified.
Upon expiry of this period, the data should automatically be erased. In general the data should not
be kept for longer than is necessary for the purposes of the collection of biometric data (Data
Protection Act 1988, as amended, Art. 2 (c) (iv)).
Biometric testing should only be applied in relation to separated children when it can clearly be
demonstrated that the decision to do so has been based solely on the best interests of the child. No
child shall be subject to arbitrary or unlawful interference with his or her privacy, family, home or
correspondence, nor to unlawful attacks on his or her honour and reputation. As in the Eurodac
regulation, a child under 14 shouldn’t have to furnish biometric data.

12
C: Vulnerable groups
11.Protection for Suspected Victims of Trafficking
We welcome the inclusion of a new section on the protection of suspected victims of trafficking.
However, as this Section stands, it simply treats the victim as a tool for the investigation and
prosecution, disregarding their rights and protection needs. This Section should be amended to
facilitate ratification of the Council of Europe Convention on Action against Trafficking in Human
Beings and the UN Trafficking Protocol.
In this Section a “foreign national” should mean any person who is not an Irish citizen. The purpose
of the reflection and recovery period should not only be to allow the victim to make an informed
decision as to whether to assist the investigation, but also to enable victims to remain legally in the
State while they recover from their experience and to ensure access to necessary supports including
legal aid, This period should be extended to a minimum of 6 months since many trafficked persons
are recovering from significant trauma, while others fear retaliation.
Furthermore, specific provisions relating to the protection of suspected trafficked children and the
specific entitlements of those who are granted temporary residency should be added. Additional
good practice measures should be seriously considered, such as a non-punishment clause and the
possibility of granting temporary residency on humanitarian grounds, whether or not the victim is
able and willing to co-operate with the authorities. Trafficked persons should be exempted from the
pre-removal powers of detention provided in the Bill. An explicit recognition of the right of
trafficked persons to seek international protection and to have access to free legal aid should be
included.
For a more detailed analysis and recommendations, please see the IRC’s Submission on
Section 124 of the Immigration Residence and Protection Bill and other provisions related to the
protection of suspected victims of trafficking.
12.Protection for Separated Children
A separated child is a child under the age of 18, who is outside their country of nationality or, if
stateless, outside their country of habitual residence and who is separated from both parents, or
from their previous legal or customary primary caregiver.
Despite the fact that the current system for identifying and protecting separated children in Ireland
has been criticised by the UN Committee on the Rights of the Child and the Special Rapporteur on
Child Protection, there are no improvements proposed in the Bill.
There is a real need for reform in this area. The current reality is that:
most separated children are not identified at ports of entry
of those identified and taken into State care more than 350 have gone missing in recent years
those in care are discriminated against – receiving a lesser provision of care than Irish
citizen children in care
few have been appointed a guardian ad litem to assess their situation and assist them in
making sure that their voices are heard
some have been reunited with ‘family,’ who turned out to be traffickers and who exploited
them for years here in Ireland

13
some separated children have waited more than 7 years for a decision, ageing out in the
process, unable to continue their education, vulnerable to traffickers and threatened with
deportation
some children and young people have fallen out of the system – particularly in the transfer
from the Health Service Executive to the Reception and Integration Agency as a result of
little or no aftercare support
other separated children have come to the attention of the authorities, but continue to live in
Ireland for years without proper documentation, with no legal aid, with no legal status –
living only with the threat of deportation once they turn 18
with a lack of protection and timely decision making to ensure an outcome in line with their
best interests, many separated children in Ireland have no choice but to become
undocumented adults
These children deserve better protection – all children should be cherished equally!
Currently, there is no clear entitlement for separated children to international protection in the Bill.
This is an opportunity for the Irish government to incorporate relevant provisions from the UN
Convention on the Rights of the Child – specifically to acknowledge that every separated child, as a
child temporarily or permanently deprived of his or her family environment, is entitled to special
protection and assistance provided by the State (CRC Art. 20). As recommended by the Law
Society and the Special Rapporteur on Child Protection, the status of temporary permission to
remain in the State should be afforded to separated children so as to provide them with legal status
while their interests are being assessed.
The IRC calls for a new section to be added to the Bill regarding specific safeguards and
protection for separated children. This new section should address a wide range of measures
including: identification, age assessment, registration, family tracing, guardianship, best
interests determination, treatment and care. The IRC will be making an additional
submission outlining detailed recommendations in these areas.
Transition
We understand that the new single process will be set up in parallel with the current process. This
raises the possibility that some people may be in the current system for many years, as happens at
present, while those in the new system may receive decisions more rapidly.
The new faster procedure provides an opportunity for the Government to come into line with most
of the rest of the EU by guaranteeing that anyone waiting for a final decision for more than the
expected 6 months should be allowed to work or study. Most EU countries allow people to work
after varying periods of time, and the right to work after a maximum of one year waiting is a
requirement of the Reception Directive which has been transposed by 25 EU Member States, with
only Ireland and Denmark opting out. The current direct provision system is widely acknowledged
to be wasteful of funds and talent and to undermine the eventual integration of refugees into Irish
society.

IRC-Submission-on-the-IRP-Bill-2008

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