Transcript Grainne Brophy - Law Society of Ireland

Grainne Brophy
Managing Solicitor
Refugee Legal Service
Comparative Overview



Replacement of Office of Refugee Applications
Commissioner by Irish Naturalisation
Immigration Service – no longer Independent
Statutory body, if Application for Protection to
I.N.I.S. unsuccessful - unless appeal submitted
within statutory time limit, Protection Temporary
Residence Permit expires and applicant
unlawfully in the State
Refugee Appeals Tribunal replaced by Protection
Review Tribunal
If unsuccessful appeal – No Section 3
Application under Immigration Act 1999
Comparative Overview



Head 53 of Scheme - Exceptionally serious
reasons for permitting an applicant to remain in
the State. Not obliged to take into account
factors that do not relate to reasons for
applicants departure from his country
Practical problems re applicants removing
himself /herself from state
Potential breach of Art 3 of European
Convention on Human Rights and Convention
against Torture
Burden of Proof/ Credibility

Burden of Proof - Head 47 – Amendment to Section 11 of Refugee
Act for Applicant to establish he/she entitled to protection in the
State Case law relating to Burden of Proof
Pasic v Minister for Justice Equality and Law Reform Peart J 23/02/2005

Credibility – Head 48 – Amendment to Section 11 of Refugee Act
Jurisprudence from the High Court re Credibility
Bujari – Finlay Geoghegan J 07/05/2003
Da Silveria – Peart J 09/07/2004
Zhuckova - Clarke J 26/11/2004
“A finding of lack of credibility has to be based on a rational analysis
which explained why, in the view of the deciding officer, the truth
had not been told.”
Must be a finding re core facts of claim.
Sango - Peart J 24/11/2005
Protection Review Tribunal





Head 54 – Tribunal inquisitorial in function
Head 57 – Power of Chairman to refer decision
to High Court
Head 57(8) – Power of Chairman to review draft
decision of a Tribunal Member
Provision to publish guidelines or guidance
notes- re Developments in the law relation to
protection practice
Publication of previous decisions
Subsidiary Protection







Council Directive 2004 83 – minimum standards for the qualification
and status of third country nationals or stateless persons who
otherwise need international protection
Transposition by way of S.I.518 of 2006
-form of Protection to persons who may not have a convention
nexus
Pending Incorporation of Bill – Application for Subsidiary Protection
to be made following a completed asylum application
Bill will allow for application at first instance
U v Minister for Justice Equality and Law Reform ex tempore
13/11/2006
Regulations 5 – 10 assessment of protection Internal Re-location,
Non State actors, sur place claims
Judicial Review




Illegal Immigrants (trafficking) Act 2000Application for Leave within 14 days
Establish substantial grounds
Discretion to extend time – “good and sufficient reasons”
S v Minister for Justice Equality and Law Reform, Supreme Court [2002]
2IR163




New Procedures
Head 72 –New Provisions pertaining to applicant becoming aware of
material facts
or other exceptional circumstances “ no fault of applicant”
Head 72 (5) Discretion to make Order for costs against legal
representation if grounds frivolous or vexatious Judgement in
Kennedy v Kileen Corrugated Products 28/11/2006, Power to be
exercised only if solicitor guilty of “misconduct or gross negligence”
Suspension of Deportation


Adebayo v Commissioner of an Garda Siochanna & Minister for
Justice Equality and Law Reform, Supreme Court 02/03/2006
Art 3 & 13 of European Convention on Human Rights
Conka v Belgium Application no 51564/99




Head 47 –
Head 72 (6) (a) application for judicial review not of itself suspend
transfer or removal
72 (6) (b) may suspend transfer – for such a period necessary to
give instructions – if giving of such instructions otherwise impossible
Taking instructions from outside jurisdiction – Adebayo –Peart J
27/10/2004
Withdrawal / Readmission


Withdrawal of Protection – Head 46 - If Fail to
attend interview – 3 Working days for
explanation – 10 working days to indicate if wish
to continue if fail to do so – unlawfully in State
Re-admission – amends section 17(7) of
Refugee Act – Head 59. Where Minister satisfied
that submission of new information –
significantly adds to likelihood of new applicant
qualifying for protection. Restrictive – what if
statutory deadline –missed by his legal
representative
Minors







S.8 (5) (a) Refugee Act – No definition of what constitutes an
unaccompanied Child/ separated child
UNHCR statement of Good Practice “ a child who is under 18 years of age
and who is separated from both parents and is not being cared for by an
adult who by law or custom has responsibility to do so”
Recent report from Law Society – Recommendation that a uniform definition
of separated child be adopted in legislation
DNA Testing – where re-unification of child with adult relative
Head 17 - Responsible adult - not defined
Separated Children in Europe Programme – advisor should have necessary
expertise in the field of child care.
Age Assessment – Discretionary, no formal appeal
M v Office of Refugee Application Commissioner 06/10/2005



Access to Court Requirement of Next Friend by Superior Court rules
Minors being denied access – absence of next friend
Scheme of Bill does not reflect international practice or comply with
obligations on Rights of the Child.
Conclusions





First Instance investigation no longer
Independent Statutory body
Issue re denying asylum seekers rights to marry
– Head 67
Non – refoulement – Head 38 – Should not be
subject to exemption.
Failure to adopt provisions re unaccompanied
Minors
Provisions re non suspension of Deportation