International Protection Act 2015

PART 1 Preliminary

1. Short title and commencement

1. (1) This Act may be cited as the International Protection Act 2015.

(2) This Act comes into operation on such day or days as the Minister may, by order or orders, appoint either generally or with reference to a particular purpose or provision and different days may be so appointed for different purposes or different provisions.

(3) An order under subsection (2) may, in respect of the repeal of the Act specified in section 6(1) effected by that section, appoint different days for the repeal of different provisions of that Act.

2. Interpretation

2. (1) In this Act—

“Act of 1996” means the Refugee Act 1996;

“Act of 1999” means the Immigration Act 1999;

“Act of 2004” means the Immigration Act 2004;

“applicant” means a person who—

(a) has made an application for international protection in accordance with section 15, or on whose behalf such an application has been made or is deemed to have been made, and

(b) has not ceased, under subsection (2), to be an applicant;

“biometric information” means information relating to the distinctive physical characteristics of a person including—

(a) measurements or other assessments of those characteristics,

(b) information about those characteristics held in an automated form,

but does not include references to the DNA profile of a person, and references to the provision by a person of biometric information means its provision in a way that enables the identity of the person to be investigated or ascertained;

“chairperson” means the chairperson of the Tribunal;

“chief international protection officer” means the person appointed under section 75 to be the chief international protection officer;

“country of origin” means the country or countries of nationality or, for stateless persons, of former habitual residence;

“civil partner” means a civil partner within the meaning of section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

“deportation order” shall be construed in accordance with section 51;

“deputy chairperson” means a deputy chairperson of the Tribunal;

“DNA profile” has the meaning it has in section 2 of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014;

“document” includes—

(a) any written matter,

(b) any photograph,

(c) any currency notes or counterfeit currency notes,

(d) any information in non-legible form that is capable of being converted into legible form,

(e) any audio or video recording, and

(f) a travel document or an identity document;

“Dublin Regulation” means Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013^4

“Dublin System Regulations” means any statutory instrument made by a Minister of the Government for the purpose of giving effect to the Dublin Regulation;

“establishment day” shall be construed in accordance with section 61(2);

“European Asylum Support Office” means the European Asylum Support Office established by Regulation (EU) No. 439/2010 of the European Parliament and of the Council of 19 May 2010^5;

“Geneva Convention” means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the text of which, in the English language, is, for convenience of reference, set out in Schedule 1) and includes the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the text of which, in the English language, is, for convenience of reference, set out in Schedule 2);

“High Commissioner” means the United Nations High Commissioner for Refugees;

“identity document” includes a passport, visa, transit visa, national identity card, entry permit, residence permit, driving licence, employment permit, birth certificate, marriage certificate or any other document establishing or contributing to establishing a person’s nationality or identity issued or purporting to be issued by or on behalf of a local or the national authority of a state, including the State, or by an organ or agency of the United Nations;

“immigration officer” has the meaning it has in section 3 of the Act of 2004;

“information” includes—

(a) information in the form of a document (or any other thing) or in any other form, and

(b) personal information, including biometric information;

“international protection” means status in the State either—

(a) as a refugee, on the basis of a refugee declaration, or

(b) as a person eligible for subsidiary protection, on the basis of a subsidiary protection declaration;

“international protection officer” means a person who is authorised under section 74 to perform the functions conferred on an international protection officer by or under this Act;

“legal assistance” means legal aid or legal advice, within the meaning of the Civil Legal Aid Act 1995;

“legal representative” means a practising solicitor or a practising barrister;

“Minister” means the Minister for Justice and Equality;

“persecution” shall be construed in accordance with section 7;

“person eligible for subsidiary protection” means a person—

(a) who is not a national of a Member State of the European Union,

(b) who does not qualify as a refugee,

(c) in respect of whom substantial grounds have been shown for believing that he or she, if returned to his or her country of origin, would face a real risk of suffering serious harm and who is unable or, owing to such risk, unwilling to avail himself or herself of the protection of that country, and

(d) who is not excluded under section 12 from being eligible for subsidiary protection;

“personal interview” means an interview held under section 35(1);

“preliminary interview” means an interview held under section 13(1);

“prescribed” means prescribed by regulations made by the Minister;

“protection” (except where the context otherwise requires) means protection against persecution or serious harm and shall be construed in accordance with section 31;

“qualified person” means a person who is either—

(a) a refugee and in relation to whom a refugee declaration is in force, or

(b) a person eligible for subsidiary protection and in relation to whom a subsidiary protection declaration is in force;

“refugee” means a person, other than a person to whom section 10 applies, who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside his or her country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it;

“refugee declaration” means a statement, made in writing by the Minister, declaring that the person to whom it relates is a refugee;

“registered medical practitioner” means a person who is a registered medical practitioner within the meaning of section 2 of the Medical Practitioners Act 2007;

“Registrar” means the Registrar of the Tribunal appointed under section 66;

“Regulations of 2006” means the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006);

“Regulations of 2013” means the European Union (Subsidiary Protection) Regulations 2013 (S.I. No. 426 of 2013);

F1["return order" has the meaning assigned to it bysection 51A;]

“safe country of origin” means a country that has been designated under section 72 as a safe country of origin;

F1["safe third country" means a country that has been designated undersection 72Aas a safe third country;]

“serious harm” means—

(a) death penalty or execution,

(b) torture or inhuman or degrading treatment or punishment of a person in his or her country of origin, or

(c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in a situation of international or internal armed conflict;

“serious non-political crime” includes particularly cruel actions, even if committed with an allegedly political objective;

“statute” means—

(a) an Act of the Oireachtas, or

(b) a statute that was in force in Saorstát Éireann immediately before the date of the coming into operation of the Constitution and that continues to be of full force and effect by virtue of Article 50 of the Constitution;

“statutory instrument” means an order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute;

“social welfare benefits” includes any payment or services provided under the Social Welfare Acts or the Health Acts 1947 to 2015 ;

“subsidiary protection declaration” means a statement, made in writing by the Minister, declaring that the person to whom it relates is a person eligible for subsidiary protection;

“Tribunal” means the International Protection Appeals Tribunal established by section 61.

(2) A person shall cease to be an applicant on the date on which—

(a) subject to subsection (3), the Minister refuses—

(i) under subsection (2) or (3) of section 47 to give the person a refugee declaration, or

(ii) under section 47(5) both to give a refugee declaration and to give a subsidiary protection declaration to the person,

(b) subject to subsection (3), he or she is first given, under section 54(1), a permission to reside in the State, or

(c) he or she is transferred from the State in accordance with the Dublin Regulation.

(3) Where—

(a) a recommendation referred to in section 39(3)(b) is made in respect of an applicant, and

(b) the applicant appeals under section 41(1)(a) against the recommendation,

notwithstanding the giving, under section 47(4)(a), of a subsidiary protection declaration to the applicant on the basis of the recommendation, he or she shall, for the purposes of this Act, remain an applicant until, following the decision of the Tribunal in relation to the appeal, the Minister, under section 47, gives or, as the case may be, refuses to give him or her a refugee declaration.

3. Regulations

3. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Different regulations may be made under this section in respect of different classes of matter the subject of the prescribing concerned.

(3) Without prejudice to any provision of this Act, regulations under this section may contain such incidental, supplementary, consequential and transitional provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(4) Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling such regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

4. Expenses

4. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

5. Service of documents

5. F2[(1)] A notice or other document that is required or authorised by or under this Act to be served on or given to a person shall be addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address most recently furnished by him or her to the Minister under section 16(3)(c) or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter, or by any other form of recorded delivery service prescribed by the Minister, addressed to the person at the address most recently furnished by him or her to the Minister under section 16(3)(c) or, in a case in which an address for service has been furnished, F3[at that address;]

F2[(d) by sending it to the person by electronic means in accordance withsubsection (2), in a case in which the person has given notice in writing to the Minister, to a registration officer, or to the Tribunal, of his or her consent to it (or notices or documents of a class to which it belongs) being served on or given to him or her in that manner.]

F2[(2) For the purposes ofF4[subsection (1)(d), a notice or other document]is sent to a person by electronic means in accordance with this subsection—

(a) if it is sent to an email address that the person has furnished to the Minister, to a registration officer or to the Tribunal for that purpose, or

(b) in a case in which the person is registered on an electronic interface, by leaving it on that electronic interface.

(3) Where a notice or other document referred to insubsection (1)has been sent to a person in accordance with—

(a)paragraph (c)ofsubsection (1), the notice or other document shall be deemed to have been duly served on or given to the person on the third working day after the day on which it was so sent, and

(b)paragraph (d)ofsubsection (1), the notice or other document shall be deemed to have been duly served on or given to the person when the sender’s facility for the delivery of notices or other documents by electronic means generates a message or other record confirming the delivery of the notice or other document by the electronic means used.

(4) In this section—

"electronic interface" means a secure information technology platform, portal, exchange network or other similar interface maintained by, or on behalf of, the Minister which requires personal log-in details;

"registration officer" has the same meaning as it has in the Act of 2004.]

6. Repeals and revocations

6. (1) Subject to Part 11, the Act of 1996 is repealed.

(2) Subject to Part 11, the following enactments are revoked:

(a) Dublin Convention (Implementation) Order 2000 (S.I. No. 343 of 2000);

(b) Refugee Act 1996 (Places and Conditions of Detention) Regulations 2000 (S.I. No. 344 of 2000);

(c) Refugee Act 1996 (Application Form) Regulations 2000 (S.I. No. 345 of 2000);

(d) Refugee Act 1996 (Temporary Residence Certificate) Regulations 2000 (S.I. No. 346 of 2000);

(e) Refugee Act 1996 (Travel Document) Regulations 2000 (S.I. No. 347 of 2000);

(f) Refugee Act 1996 (Appeals) Regulations 2002 (S.I. No. 571 of 2002);

(g) Refugee Act 1996 (Safe Countries of Origin) Order 2003 (S.I. No. 422 of 2003);

(h) Refugee Act 1996 (Section 22) Order 2003 (S.I. No. 423 of 2003);

(i) Refugee Act 1996 (Appeals) Regulations 2003 (S.I. No. 424 of 2003);

(j) Refugee Act 1996 (Safe Countries of Origin) Order 2004 (S.I. No. 714 of 2004);

(k) the Regulations of 2006;

(l) European Communities (Asylum Procedures) Regulations 2011 (S.I. No. 51 of 2011);

(m) Refugee Act 1996 (Asylum Procedures) Regulations 2011 (S.I. No. 52 of 2011);

(n) the Regulations of 2013;

(o) Refugee Act 1996 (Travel Document and Fee) Regulations 2011 (S.I. No. 404 of 2011);

(p) European Union (Dublin System) Regulations 2014 (S.I. No. 525 of 2014);

(q) European Union (Subsidiary Protection) (Amendment) Regulations 2015 (S.I. No. 137 of 2015).

PART 2 Qualification for International Protection

7. Acts of persecution

7. (1) For the purposes of this Act, acts of persecution must be—

(a) sufficiently serious by their nature or repetition to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or

(b) an accumulation of various measures, including violations of human rights, which is sufficiently severe as to affect an individual in a similar manner as mentioned in paragraph (a).

(2) The following are examples of acts which may amount to acts of persecution for the purposes of subsection (1):

(a) acts of physical or mental violence, including acts of sexual violence;

(b) legal, administrative, police or judicial measures, or a combination of these measures, that are in themselves discriminatory or are implemented in a discriminatory manner;

(c) prosecution or punishment that is disproportionate or discriminatory;

(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts of a kind referred to in section 10(2);

(f) acts of a gender-specific or child-specific nature.

(3) For the purpose of the definition of “refugee” in section 2, there must be a connection between the reasons for persecution and the acts of persecution or the absence of protection.

8. Reasons for persecution

8. (1) An international protection officer or the Tribunal, as the case may be, shall take the following into account when assessing the reasons for persecution:

(a) the concept of race shall in particular include considerations of colour, descent or membership of a particular ethnic group;

(b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief;

(c) the concept of nationality shall not be confined to citizenship or lack thereof but shall in particular include membership of a group determined by its cultural, ethnic or linguistic identity, common geographical or political origins or its relationship with the population of another state;

(d) a group shall be considered to form a particular social group where in particular—

(i) members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, or

(ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society,