Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2020

(a) whether the person, in the purported discharge of his or her duty to establish his or her identity, has misrepresented or omitted facts, whether or not by the use of false documents;

(b) whether the person has failed to comply with a requirement under subsection (1);

(c) whether the person, having been informed of arrangements for his or her return, has failed to co-operate with those arrangements;

(d) whether the person has explicitly expressed an intention not to comply with arrangements for his or her return;

(e) whether the person has previously failed to comply with the law of the State, or of another state, relating to the entry or presence of foreign nationals in the State or, as the case may be, that state.

(7) Subject to subsection (8), subsections (4) and (5) shall not apply to a person the subject of a return order who is under the age of 18 years.

(8) If and for so long as an immigration officer or member of the Garda Síochána concerned has reasonable grounds for believing that the person the subject of a return order is not under the age of 18 years, the provisions of subsections (4) and (5) shall apply as if the person had attained the age of 18 years.

(9) The Minister may, in order to facilitate the return of a person the subject of a return order, issue to the person a laissez-passer or such other travel document as the Minister considers appropriate.

(10) An immigration officer or member of the Garda Síochána may, for the purpose of the return, detain a person the subject of a return order in accordance with subsection (11) and place him or her on a vehicle that is about to leave the State and the person shall be deemed to be in lawful custody while so detained and until the vehicle leaves the State.

(11) A person who is detained under subsection (10) may, for the purposes of that subsection, be detained—

(a) for a period not exceeding 7 days, in a place of detention,

(b) for a period or periods each not exceeding 12 hours, in a vehicle, for the purpose of bringing the person to the port from which the vehicle referred to in subsection (10) is due to leave the State, or

(c) for a period or periods each not exceeding 12 hours, within the port referred to in paragraph (b).

(12) The master or person in charge of a vehicle that is about to leave the State shall, if so directed by an immigration officer or member of the Garda Síochána, receive a person the subject of a return order on board the vehicle and afford the person so received proper accommodation and maintenance during the journey concerned.

(13) A reference in this section and section 51C to the return of a person is a reference to his or her return in accordance with section 51A(2).

Period of validity of return order

51C. (1) A person the subject of a return order may, while the order is in effect, be returned in accordance with section 51A(2).

(2) A return order shall, other than where subsection (3) or (4) applies, remain in effect for a period of 6 months from the date on which notification (referred to in section 51A(3)) of the return order is sent.

(3) Where a person the subject of the return order absconds in the period referred to in subsection (2), the order shall remain in effect for a period of 12 months from the date on which notification (referred to in section 51A(3) ) of the return order is sent.

(4) Where a person the subject of the return order brings an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) of the return order and the High Court suspends the operation of the order pending the determination of the application, the order shall remain in effect for a period of 6 months from the date of the final determination (including where notice of appeal is given, the final determination of the appeal or any further appeal therefrom or the withdrawal of the appeal) of the application concerned.

(5) Where—

(a) a return order ceases in accordance with this section to have effect on a particular date (in this section referred to as the ‘relevant date’), and

(b) by the relevant date the person the subject of the order has not been returned,

he or she shall, notwithstanding that his or her application for international protection has been determined under section 21(11) to be inadmissible, be deemed to have made, on the date immediately following the relevant date, an application for international protection in accordance with section 15, and subject to this section, the provisions of this Act shall, with any necessary modifications, apply accordingly.

(6) The Minister shall as soon as practicable on or after the date immediately following the relevant date—

(a) send the person concerned, and his or her legal representative (if known), a notice in writing—

(i) informing him or her of the effect of subsection (5), and

(ii) inviting the person to complete, in respect of his or her application referred to in subsection (5), the form prescribed under section 15(5),

and

(b) give or cause to be given to the person a statement under section 18(1).”.

122 Designation of safe third countries

122.The Act of 2015 is amended by the insertion of the following section after section 72:

“72A. (1) The Minister may by order designate a country as a safe third country.

(2) The Minister may make an order under subsection (1) only if he or she is satisfied that a person seeking to be recognised in the country concerned as a refugee will be treated in accordance with the following principles in that country—

(a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion,

(b) the principle of non-refoulement in accordance with the Geneva Convention is respected,

(c) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment, as required by international law, is respected, and

(d) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

(3) The Minister shall base his or her assessment referred to in subsection (2) on a range of sources of information, including in particular information from—

(a) other Member States of the European Union,

(b) the European Asylum Support Office,

(c) the High Commissioner,

(d) the Council of Europe, and

(e) such other international organisations as the Minister considers appropriate.

(4) The Minister shall, in accordance with subsections (2) and (3) and on a regular basis, review the situation in a country designated under subsection (1).

(5) The Minister shall notify the European Commission of the making, amendment or revocation of an order under subsection (1).

(6) In this section—

‘country’ means a country other than an EU Member State;

‘refugee status’ means the recognition by the country concerned of a third country national or stateless person as a refugee.”.

123. Amendment of Illegal Immigrants (Trafficking) Act 2000

123. Section 5(1) of the Illegal Immigrants (Trafficking) Act 2000 is amended—

(a) in paragraph (oj), by the substitution of “the International Protection Act 2015,” for “the International Protection Act 2015, or”, and

(b) by the insertion of the following paragraph after paragraph (oj):

“(ok) a return order under section 51A of the International Protection Act 2015, or”.

PART 19 Recognition of Certain Divorces, Legal Separations and Marriage Annulments

124. Definitions and application (Part 19)

124. (1) In this Part—

“Council Regulation” means Council Regulation (EC) No. 2201/2003 of 27 November 2003[^22] concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, as amended by Council Regulation (EC) No. 2116/2004 of 2 December 2004[^23] amending Regulation (EC) No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, as regards treaties with the Holy See;

“relevant jurisdiction” means—

(a) England and Wales,

(b) Scotland,

(c) Northern Ireland, or

(d) Gibraltar.

(2) Section 5 of the Domicile and Recognition of Foreign Divorces Act 1986 shall not apply to a divorce to which section 125 or 126 applies.

125. Recognition of certain divorces, legal separations and marriage annulments granted in United Kingdom or Gibraltar before coming into operation of section

125. A divorce, legal separation or marriage annulment granted under the law of a relevant jurisdiction that, prior to the coming into operation of this section, was recognised under the Council Regulation shall continue to be recognised.

126. Recognition of certain divorces, legal separations and marriage annulments granted in United Kingdom or Gibraltar on or after coming into operation of section

126. (1) This section shall apply to a divorce, legal separation or marriage annulment granted under the law of a relevant jurisdiction on or after the coming into operation of this section.

(2) A divorce, legal separation or marriage annulment to which this section applies shall, subject to subsection (3), be recognised if, at the date of the institution of the proceedings relating to the divorce, legal separation or marriage annulment concerned, at least one of the following requirements is satisfied:

(a) the spouses were habitually resident in a relevant jurisdiction;

(b) the spouses were last habitually resident in a relevant jurisdiction, insofar as one of them still resided there;

(c) the respondent was habitually resident in a relevant jurisdiction;

(d) the applicant—

(i) was habitually resident in a relevant jurisdiction, and

(ii) had resided there for at least a year immediately prior to that date;

(e) either of the spouses was domiciled in a relevant jurisdiction.

(3) A divorce, legal separation or marriage annulment to which this section applies shall not be recognised—

(a) if such recognition is manifestly contrary to public policy,

(b) where the judgment in the proceedings relating to the divorce, legal separation or marriage annulment concerned (“the relevant judgment”) was given in default of appearance, if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence unless it is determined that the respondent has accepted the judgment unequivocally,

(c) if the relevant judgment is irreconcilable with a judgment given in proceedings between the same parties in the State, or

(d) if the relevant judgment is irreconcilable with an earlier judgment given in a state other than the State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the State.

PART 20 Amendment of Defamation Act 2009

127. Amendment of Schedule 1 to Defamation Act 2009

127. Schedule 1 to the Defamation Act 2009 is amended—

(a) in Part 1—

(i) in paragraph (11), by the substitution of “under the law of a Member State or of the United Kingdom” for “under the law of a Member State of the European Union”,

(ii) in paragraph (12), by the substitution of “in a Member State or in the United Kingdom” for “in a Member State of the European Union”,

and

(b) in Part 2—

(i) in paragraph (1), by the substitution of “in the State, in a Member State or in the United Kingdom” for “in the State or in a Member State of the European Union”,

(ii) in paragraph (2), by the substitution of “in the State, in a Member State or in the United Kingdom” for “in the State or in a Member State of the European Union”,

(iii) in paragraph (3), by the substitution of “in the State, in a Member State or in the United Kingdom” for “in the State or in a Member State of the European Union”, and

(iv) in paragraph (4), by the substitution of “in a Member State or in the United Kingdom” for “in a Member State of the European Union”.

PART 21 Childcare Support Act 2018

128. Definition (Part 21)

128. In this Part, “Act of 2018” means the Childcare Support Act 2018.

129. Amendment of section 1 of Act of 2018

129. Section 1(1) of the Act of 2018 is amended by the insertion of the following definition:

“ ‘United Kingdom of Great Britain and Northern Ireland’ includes the Channel Islands and the Isle of Man and ‘citizen of the United Kingdom of Great Britain and Northern Ireland’ shall be construed accordingly;”.

130. Amendment of section 7 of Act of 2018

130. Section 7(1)(b) of the Act of 2018 is amended by the insertion of the following subparagraph after subparagraph (iv):

“(iva) a citizen of the United Kingdom of Great Britain and Northern Ireland, or”.

131. Amendment of section 15 of Act of 2018

131. Section 15(2)(c) of the Act of 2018 is amended by the insertion of the following subparagraph after subparagraph (iv):

“(iva) a citizen of the United Kingdom of Great Britain and Northern Ireland, or”.

PART 22 Construction Products - Market Surveillance Authority

132. Construction products - market surveillance

132. In this Part—

“administrative area” has the meaning assigned to it by the Local Government Act 2001;

“building control authority” has the meaning given to it by section 2 of the Building Control Act 1990;

“competent authority” means a person prescribed by the Minister under this Part and may include a local authority;

“Construction Products Regulation” means Regulation (EU) No. 305/2011 of the European Parliament and of the Council of 9 March 2011[^24] laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC;

“local authority” has the meaning assigned to it by the Local Government Act 2001;

“market surveillance” means the activities carried out and measures taken by a market surveillance authority to ensure that construction products comply with the requirements set out in the Construction Products Regulation and do not endanger health, safety or any other aspect of public interest protection;

“market surveillance authority” means—

(a) a building control authority under Regulation 10(1)(a) of the Regulations of 2013,

(b) a competent authority under Regulation 10(1)(b) of the Regulations of 2013, and

(c) the Minister under Regulation 10(1)(d) of the Regulations of 2013,

which are responsible for carrying out market surveillance in the State;

“Market Surveillance Regulation” means Regulation (EU) No. 765/2008 of the European Parliament and of the Council of 9 July 2008 [^25] setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No. 339/93;

“Minister” means the Minister for Housing, Local Government and Heritage;

“prescribe” means prescribe by regulations made by the Minister under section 133;

“Regulations of 2013” means the European Union (Construction Products) Regulations 2013 (S.I. No. 225 of 2013).

133. Prescribing competent authority for purposes of Regulations of 2013

133. (1) The Minister may, where he or she considers it appropriate for the purposes of giving further effect to the Construction Products Regulation or the Market Surveillance Regulation, prescribe—

(a) a person to be a competent authority for the purposes of carrying out the functions of a market surveillance authority under the Regulations of 2013, in respect of construction products to which the Construction Products Regulation applies, or such of those construction products as the Minister may prescribe under paragraph (b), placed on the market or, as the case may be, made available on the market in the State, and

(b) one or more than one of the construction products referred to in paragraph (a) to be construction products in respect of which a competent authority prescribed under paragraph (a) shall carry out the functions referred to in that paragraph of a market surveillance authority.

(2) The Minister shall, before prescribing one or more than one competent authority under subsection (1)(a), be satisfied—

(a) that the person has or has available to it, or where the person is an individual has, appropriate experience, expertise and knowledge of the rules, including the Construction Products Regulation and the Market Surveillance Regulation, for the marketing of, performance of, and harmonised technical specifications relating to, construction products to which the Construction Products Regulation applies or such of those construction products as the Minister may prescribe under subsection (1)(b), in respect of which the person is to be prescribed as a competent authority, and

(b) that the person would carry out the functions of a market surveillance authority independently and impartially.

(3) Where a competent authority prescribed by the Minister is a local authority, then notwithstanding section 11(6) of the Local Government Act 2001, the competent authority shall have jurisdiction throughout the administrative areas of all local authorities for the purposes of carrying out its functions with respect to market surveillance under the Regulations of 2013.

(4) Where a competent authority prescribed by the Minister is a local authority, the competent authority may make and carry out an agreement with one or more building control authorities for sharing the cost of the performance by the competent authority of all or any of the functions of those building control authorities with respect to market surveillance that are otherwise performable by those authorities under the Regulations of 2013 and, where an agreement has been made under this subsection, that competent authority and the building control authority or authorities concerned may terminate such agreement at any time, if they so agree.

134. Amendment of Regulations of 2013

134. The Regulations of 2013 are amended—

(a) in Regulation 3(1) —

(i) by the insertion of the following definitions:

“ ‘Act of 2020’ means the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020;

‘competent authority’ means a competent authority prescribed by the Minister by regulations under section 133 of the Act of 2020;”,

and

(ii) by the substitution of the following definitions for the definitions of “market surveillance” and “market surveillance authority”:

“ ‘market surveillance’ means the activities carried out and measures taken by a market surveillance authority to ensure that construction products comply with the requirements set out in the Construction Products Regulation and do not endanger health, safety or any other aspect of public interest protection;

‘market surveillance authority’ means—

(a) each of following, which are responsible for carrying out market surveillance in the State:

(i) a building control authority under Regulation 10(1)(a);

(ii) a competent authority under Regulation 10(1)(b);

(iii) the Minister under Regulation 10(1)(d),

and

(b) an authority of a Member State responsible for carrying out market surveillance on its territory;”,

(b) in Regulation 10—

(i) in paragraph (1) —

(I) by the substitution of the following subparagraph for subparagraph (b):

“(b) a competent authority, and”,

and

(II) by the deletion of subparagraph (c),

(ii) in paragraph (2) —

(I) by the substitution of the following subparagraph for subparagraph (b):

“(b) which is a competent authority, shall be responsible for the market surveillance of construction products, or such construction products as the Minister may prescribe under section 133 of the Act of 2020, placed on the market, or as the case may be, made available on the market, in the State and shall take such steps as are necessary for this purpose.”,

and

(II) by the deletion of subparagraph (c),

(c) in Regulation 11(1) —

(i) by the substitution of the following subparagraph for subparagraph (b):

“(b) a competent authority shall, other than where the competent authority is an individual, appoint officers to be authorised officers, and where the competent authority is an individual that person shall be an authorised officer, for the purposes of these Regulations.”,

and

(ii) by the deletion of subparagraph (c),

(d) by the substitution of the following Regulation for Regulation 19:

“19. An offence under these Regulations may be prosecuted by a market surveillance authority specified in paragraph (1)(a), (1)(b) or (1)(d) of Regulation 10.”,

and

(e) in Regulation 20(6), by the substitution of “specified in paragraph (1)(a), (1)(b) or (1)(d) of Regulation 10” for “specified under and in accordance with Regulation 10 of these Regulations”.