click here for explanatory memorandum an bille um inimirce ... bill 2010.pdf/files/irp bill...
TRANSCRIPT
————————
AN BILLE UM INIMIRCE, CÓNAÍ AGUS COSAINT 2010IMMIGRATION, RESIDENCE AND PROTECTION BILL 2010
————————
Mar a tionscnaíodhAs initiated
————————
ARRANGEMENT OF SECTIONS
PART 1
PRELIMINARY
Section1. Short title and commencement.
2. Interpretation.
3. Orders and regulations.
4. Expenses.
5. Repeals and revocation.
PART 2
General
6. Foreign nationals lawfully and unlawfully present.
7. Marriage itself not to create immigration advantage.
8. Persons having permission to be in the State by operationof section.
9. Limits on entitlement of foreign nationals unlawfully presentto certain services, etc.
10. Saver for EU rights and obligations.
11. Delegation of functions of Minister to persons not officers ofthe Minister.
PART 3
Visas
12. Interpretation (Part 3).
13. Obligation to possess valid visa.[No. 38 of 2010]
Click here forExplanatory Memorandum
14. Powers of Minister.
15. Visa-exempt foreign nationals.
16. Visa application.
17. Determination of visa application.
18. Grant of visa.
19. Refusal of visa application.
20. Revocation of visa.
21. Visa review application.
22. Determination of visa review application.
23. Transit visa.
PART 4
Entry into the State
24. Entry into State to be by way of approved ports, etc.
25. Approved ports.
26. Requirement for travel document at frontier of State.
27. Arrival at frontier of State: presentation and examination.
28. Arrival of foreign nationals under the age of 18 years.
29. Entry permission.
30. Entry permit.
31. Refusal to grant entry into the State.
32. Entry into State: health considerations.
33. Duties of carriers.
34. Fixed penalties for offences under section 33.
PART 5
Residence
35. Residence permission.
36. Register of foreign nationals.
37. Application for residence permission of different category.
38. Residence permission: factors to be considered.
39. Renewal of residence permission.
40. Non-renewal of renewable residence permission.
41. Modification of conditions of residence permission.
2
42. Application by foreign national for modification of con-ditions of residence permission.
43. Modification of conditions of residence permission on Mini-ster’s own initiative.
44. Residence permit.
45. Replacement of lost, etc. residence permit.
46. Long-term residence permission.
47. Renewal of long-term residence permission.
48. Non-renewal of long-term residence permission.
49. Revocation of permission.
50. Procedure for revocation of entry permission or non-renew-able residence permission.
51. Proposal to revoke renewable residence permission or long-term residence permission.
52. Procedure for revocation of renewable residence permissionor long-term residence permission.
53. Review application.
54. Determination of review.
55. Non-return orders.
56. Immigration officers’ powers under this Part.
57. Regulations.
PART 6
Removal from the State
58. Rule against refoulement.
59. Removal from State of foreign national unlawfully present.
60. Arrest and detention of foreign national for purpose ofremoval from State.
61. Imposition of conditions upon foreign national arrestedunder section 60.
62. Imposition of conditions upon foreign national unlawfullypresent in the State.
63. Provisions supplementary to sections 60, 61 and 62.
64. Persons under 18 years of age.
65. Responsibilities of carriers in relation to removal of foreignnationals from State.
66. Liability for costs of removal.
3
PART 7
Protection
Chapter 1
General
67. Interpretation (Part 7).
68. Restriction of Freedom of Information Acts 1997 and 2003.
69. Entitlement to protection in State.
70. Assessment of facts and circumstances.
71. Acts of persecution.
72. Factors bearing on assessment of reasons for, and fear of,persecution.
73. Exclusion from protection.
74. Cessation of protection status.
Chapter 2
Protection applications
75. Protection application entry permission.
76. Register of protection applicants.
77. Protection application entry permit.
78. Procedures for issue of protection application entry permitwhere foreign national is present at frontier.
79. Arrest and detention of protection applicants in certain cir-cumstances.
80. Priority to be given to detained protection applicants.
Chapter 3
Protection application procedure
81. Protection application and information to be given to protec-tion applicant about procedure.
82. Inadmissible protection applications.
83. Minister’s investigation of protection applications.
84. Burden of proof.
85. Credibility.
86. Duty to co-operate.
87. Protection of identity of protection applicants.
88. Determination and report of investigation of protectionapplication.
4
89. Minister’s discretion to grant residence permission in cer-tain circumstances.
90. Withdrawal or deemed withdrawal of protection application.
91. Notification of determination of protection application atfirst instance.
92. Appeal to Tribunal.
93. Oral hearings.
94. Appeal to Tribunal: provision of information.
95. Withdrawal and deemed withdrawal of appeal.
96. Decision of Tribunal on appeal.
97. Subsequent protection application.
98. Report in relation to health of protection applicant.
99. Accelerated procedure in certain cases.
Chapter 4
Protection Review Tribunal
100. Protection Review Tribunal.
101. Membership of Tribunal.
102. Functions of chairperson of Tribunal, etc.
103. Role of members of the Tribunal.
104. Registrar.
105. Functions of the Registrar.
106. Advisory Committee.
107. Access to Tribunal decisions.
108. Prioritisation.
Chapter 5
Protection declarations and permits
109. Protection declaration.
110. Protection permission and permit.
111. Revocation of protection declaration.
112. Procedure for revocation of protection declaration.
113. Programme refugees, etc.
114. Temporary protection.
115. Issue of travel documents by Minister.
5
116. Member of family of person in relation to whom protectiondeclaration is in force.
Chapter 6
Safe Countries
117. Safe countries of origin.
118. Safe third countries.
119. Safe third country — transfer of persons.
120. Council Regulation country — transfer of persons.
PART 8
Further Provisions
121. Prohibition of false documents, etc.
122. Exchange of information.
123. Exchange of information: further provisions.
124. Provision of biometric information.
125. Production of travel documents.
126. Requirement for travel document: embarkation from State.
127. Advance passenger information.
128. Statutory notice.
129. Registers of foreign nationals in certain premises, etc.
130. Appointment of immigration officers, etc.
131. Powers of immigration officers.
132. Exclusion orders.
133. Judicial review: special provisions.
134. Penalties and proceedings.
135. Offences by body corporate, etc.
136. Service of notices, etc.
137. Restrictions on change of name.
138. Marriage of convenience.
139. Victims of trafficking (recovery and reflection).
140. Treatment of foreign nationals regulations.
141. Regulations governing grant of permissions, etc.
142. Fees.
143. Directions.
6
144. Public security, etc.
145. Bonds, deposits and guarantees.
146. Statistical information.
147. Amendments.
PART 9
smuggling of persons
148. Interpretation (Part 9).
149. Facilitation of unlawful entry and presence.
150. Proceedings relating to offences committed outside State.
151. Evidence in proceedings under Part.
152. Double jeopardy.
153. Exercise of enforcement powers in respect of ships.
154. Enforcement officers and enforcement powers in respect ofships.
155. Jurisdiction and prosecutions in relation to offences on ships.
156. Power to detain certain vehicles.
157. Forfeiture of ship, aircraft or other vehicle.
PART 10
Transitional, etc., provisions
158. Interpretation (Part 10).
159. Immigration matters.
160. Deportation, removal and exclusion.
161. Immigration officers.
162. Detention.
163. Protection matters.
164. Protection Review Tribunal.
165. Continuity of statutory time periods.
166. Continuity of validity of travel documents.
167. Judicial review.
168. Transitional arrangements relating to repeal of Illegal Immi-grants (Trafficking) Act 2000.
7
SCHEDULE 1
THE CONVENTION RELATING TO THE STATUS OFREFUGEES DONE AT GENEVA ON 28 JULY 1951
SCHEDULE 2
PROTOCOL RELATING TO THE STATUS OF REFUGEESDONE AT NEW YORK ON 31 JANUARY 1967
SCHEDULE 3
Amendments to Enactments
————————
8
Acts Referred to
Aliens Act 1935 1935, No. 14
Aviation (Preclearance) Act 2009 2009, No. 16
Bail Act 1997 1997, No. 16
Child Care Acts 1991 to 2007
Civil Legal Aid Act 1995 1995, No. 32
Civil Registration Act 2004 2004, No. 3
Civil Service Regulation Acts 1956 to 2005
Criminal Justice (Legal Aid) Act 1962 1962, No. 12
Criminal Justice (Mutual Assistance) Act 2008 2008, No. 7
Criminal Justice (Terrorist Offences) Act 2005 2005, No. 2
Criminal Justice (United Nations Convention AgainstTorture) Act 2000 2000, No. 11
Criminal Justice Act 2006 2006, No. 26
Criminal Law (Human Trafficking) Act 2008 2008, No. 8
Criminal Law Act 1976 1976, No. 32
Data Protection Acts 1988 and 2003
Diplomatic and Consular Officers (Provision of Services)Act 1993 1993, No. 33
Diplomatic Relations and Immunities Act 1967 1967, No. 8
Diplomatic Relations and Immunities Acts 1967 to 2006
Employment Equality Act 1998 1998, No. 21
Employment Permits Act 2006 2006, No. 16
Employment Permits Act 2003 2003, No. 7
Employment Permits Acts 2003 and 2006
Equal Status Act 2000 2000, No. 8
European Arrest Warrant Act 2003 2003, No. 45
European Parliament Elections Act 1997 1997, No. 2
Extradition (Amendment) Act 1994 1994, No. 6
Extradition Acts 1965 to 2001
Garda Síochána Act 2005 2005, No. 20
Health Act 1947 1947, No. 28
Health Act 1953 1953, No. 26
Health Acts 1947 to 2009
Housing (Miscellaneous Provisions) Act 1992 1992, No. 18
Housing (Miscellaneous Provisions) Act 2002 2002, No. 9
Housing Acts 1966 to 2009
Illegal Immigrants (Trafficking) Act 2000 2000, No. 29
Immigration Act 1999 1999, No. 22
Immigration Act 2003 2003, No. 26
Immigration Act 2004 2004, No. 1
International Criminal Court Act 2006 2006, No. 30
International War Crimes Tribunal Act 1998 1998, No. 40
Irish Nationality and Citizenship Act 2004 2004, No. 38
Irish Nationality and Citizenship Acts 1956 to 2004
Local Government Act 2001 2001, No. 37
Oireachtas (Allowances to Members) Act 1938 1938, No. 34
Passports Act 2008 2008, No. 4
Pilotage Order Confirmation Act 1927 1927, No. 1(P)
Police (Property) Act 1897 60 & 61 Vic., c.30
9
Prisons Act 2007 2007, No. 10
Public Service Management (Recruitment and Appointment)Act 2004 2004, No. 33
Refugee Act 1996 1996, No. 17
Road Traffic Act 1961 1961, No. 24
Road Traffic Act 2006 2006, No. 23
Social Welfare and Pensions (No. 2) Act 2009 2009, No. 43
Social Welfare Consolidation Act 2005 2005, No. 26
Taxi Regulation Act 2003 2003, No. 25
10
————————
AN BILLE UM INIMIRCE, CÓNAÍ AGUS COSAINT 2010
IMMIGRATION, RESIDENCE AND PROTECTION BILL 2010
————————
BILLentitled
AN ACT TO RESTATE AND MODIFY CERTAIN ASPECTS5OF THE LAW RELATING TO THE ENTRY INTO, PRES-ENCE IN AND REMOVAL FROM THE STATE OF CER-TAIN FOREIGN NATIONALS AND OTHERS, INCLUD-ING FOREIGN NATIONALS IN NEED OF PROTECTIONFROM THE RISK OF SERIOUS HARM OR PER-10SECUTION ELSEWHERE, WHILE HAVING REGARDALSO TO THE POWER OF THE EXECUTIVE INRELATION TO THE ABOVE MATTERS, TO GIVEEFFECT TO COUNCIL DIRECTIVE 2001/40/EC OF 28MAY 20011 ON THE MUTUAL RECOGNITION OF15DECISIONS ON THE EXPULSION OF THIRD COUNTRYNATIONALS, TO GIVE EFFCT TO COUNCILDIRECTIVE 2001/55/EC OF 20 JULY 20012 ON MINIMUMSTANDARDS FOR GIVING TEMPORARY PROTECTIONIN THE EVENT OF A MASS INFLUX OF DISPLACED20PERSONS AND ON MEASURES PROMOTING ABALANCE OF EFFORTS BETWEEN MEMBER STATESIN RECEIVING SUCH PERSONS AND BEARING THECONSEQUENCES THEROF, TO GIVE EFFECT TOCOUNCIL DIRECTIVE 2002/90/EC OF 28 NOVEMBER2520023 DEFINING THE FACILITATION OF UNAUTHOR-ISED ENTRY, TRANSIT AND RESIDENCE, TO GIVEEFFECT TO EU FRAMEWORK DECISION 2002/946/JHAOF 28 NOVEMBER 20024 ON THE STRENGTHENING OFTHE PENAL FRAMEWORK TO PREVENT THE FACILI-30TATION OF UNAUTHORISED ENTRY, TRANSIT ANDRESIDENCE, TO GIVE EFFECT TO COUNCILDIRECTIVE 2004/82/EC OF 29 APRIL 20045 ON THE OBLI-GATION OF CARRIERS TO COMMUNICATE PASSEN-GER DATA, TO GIVE EFFECT TO COUNCIL35DIRECTIVE 2005/85/EC OF 1 DECEMBER 20056 ON MINI-MUM STANDARDS ON PROCEDURES IN MEMBERSTATES FOR GRANTING AND WITHDRAWING REFU-GEE STATUS, TO GIVE FURTHER EFFECT TO THE
1O.J. No. L 149, 02.06.01, p 34.2O.J. No. L212, 07.08.2001, p. 12.3O.J. No. L328, 05.12.2002, p.17.4O.J. No. L328, 05.12.2002, p. 1.5O.J. No. L261, 06.08.2004, p.24.6O.J. No. L326, 13.12.2005, p. 13.
11
Short title andcommencement.
Interpretation.
CONVENTION RELATING TO THE STATUS OF REFU-GEES DONE AT GENEVA ON THE 28TH DAY OF JULY1951 AND THE PROTOCOL RELATING TO THE STATUSOF REFUGEES DONE AT NEW YORK ON THE 31STDAY OF JANUARY 1967 AND TO GIVE EFFECT TO THE 5PROTOCOL AGAINST THE SMUGGLING OFMIGRANTS BY LAND, SEA AND AIR SUPPLEMENTINGTHE UN CONVENTION AGAINST TRANSNATIONALORGANIZED CRIME, TO AMEND THE IRISHNATIONALITY AND CITIZENSHIP ACT 1956, TO 10AMEND OR REPEAL CERTAIN OTHER ENACTMENTSAND TO PROVIDE FOR RELATED MATTERS, INCLUD-ING VICTIMS OF HUMAN TRAFFICKING.
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART 1 15
PRELIMINARY
1.—(1) This Act may be cited as the Immigration, Residence andProtection Act 2010.
(2) This Act comes into operation on such day or days as theMinister may, by order or orders, appoint either generally or with 20reference to a particular purpose or provision and different days maybe so appointed for different purposes or different provisions.
2.—In this Act—
“approved port” shall be construed in accordance with section 25;
“biometric information” means information about the distinctive 25physical characteristics of a person including—
(a) measurements or other assessments of those character-istics, and
(b) information about those characteristics held in automatedform, but does not include information relating to the 30DNA profile of a person; and references to the provisionby a person of biometric information mean its provisionin a way that enables the identity of the person to beinvestigated or ascertained;
“carrier”— 35
(a) in relation to a vehicle other than a ship, means the oper-ator of the vehicle,
(b) in relation to a ship, means its master, and
(c) in a case where the responsibility for unloading a vehicleor attending to the disembarkation of its passengers or 40otherwise receiving it on its arrival in the State, orattending to the embarkation of passengers on its depar-ture from the State, has been delegated by its operatorto another person, includes both that operator and theother person, 45
12
and, for the purposes of this definition, “operator” means any personwho owns, part-owns or charters the vehicle or who has the manage-ment and control of the business where the vehicle is used;
“country of origin” means the country or countries of nationality or,for stateless persons, of former habitual residence;5
“DNA” means deoxyribonucleic acid;
“DNA profile”, in relation to a person, means information compris-ing a set of identification characteristics of the non-coding part ofDNA derived from an examination and analysis of a sample of bio-logical material that is clearly identifiable as relating to the person10and that is capable of comparison with similar information derivedfrom an examination and analysis of another sample of biologicalmaterial for the purpose of determining whether or not that othersample could relate to that person;
“document” includes—15
(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 ofbeing converted into legible form,20
(e) any audio or video recording, and
(f) a travel document or an identity document;
“dwelling place” means, in relation to a foreign national, the placein which the foreign national usually lives when in the State;
“embarking” includes departure by any form of conveyance and25departure over a land frontier;
“entry permit” shall be construed in accordance with section 30;
“entry permission” shall be construed in accordance with section29(1)(a);
“European act” means—30
(a) a provision of the treaties governing the EuropeanUnion, or
(b) an act or provision of an act, adopted by an institutionof the European Union, an institution of the EuropeanCommunities or any other body competent under those35treaties;
“exclusion period” shall be construed in accordance with section55(1);
“foreign national” means a person who is neither—
(a) an Irish citizen, nor40
(b) a person who has established a right to enter and bepresent in the State under the European Communities(Aliens) Regulations 1977 (S.I. No. 393 of 1977), the
13
European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997 (S.I. No.57 of 1997) or the European Communities (Free Move-ment of Persons) (No. 2) Regulations 2006 (S.I. No. 656of 2006); 5
“freedom” includes freedom from the likelihood of serious assault,including serious assault of a sexual nature;
“Geneva Convention” means the Convention relating to the Statusof Refugees done at Geneva on 28 July 1951 (the text of which, inthe English language, is, for convenience of reference, set out in 10Schedule 1 to this Act), and includes the Protocol relating to theStatus of Refugees done at New York on 31 January 1967 (the textof which, in the English language, is, for convenience of reference,set out in Schedule 2 to this Act);
“governor” has the same meaning as it has in the Prisons Act 2007; 15
“High Commissioner” means the United Nations High Com-missioner for Refugees;
“holder” means, in relation to a document, the person to whom thedocument relates and, for the purposes of this definition, “docu-ment” means one that is valid under the law of the place of the 20authority that issued it;
“identity document” includes a passport, visa, transit visa, nationalidentity card, entry permit, residence permit, driving licence, employ-ment permit, birth certificate, marriage certificate or any other docu-ment establishing or contributing to establishing a person’s national- 25ity or identity issued or purporting to be issued by or on behalf of alocal or the national authority of a state, including the State, or byan organ or agency of the United Nations;
“immigration area” means an area designated as an immigration areaby order under section 130(4); 30
“immigration area office” means a place designated as an immi-gration area office by order under section 130(4);
“immigration officer” means an immigration officer appointed undersection 130 or a person deemed under section 161(1) be an immi-gration officer; 35
“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;
“information holder” means a Minister of the Government, the 40Revenue Commissioners, a local authority, the Health ServiceExecutive, the Garda Síochána, or a body, or the holder of anyoffice, established—
(a) by or under any enactment other than the CompaniesActs, or 45
(b) under the Companies Acts in pursuance of powers con-ferred by or under any other enactment,
and financed wholly or partly by means of moneys provided or loansmade or guaranteed by a Minister of the Government or the issue
14
of shares held by or on behalf of a Minister of the Government or asubsidiary of any such body;
“legal representative” means a practising barrister or practisingsolicitor;
“local authority” has the same meaning as it has in section 2(1) of5the Local Government Act 2001;
“long-term residence permission” shall be construed in accordancewith section 46;
“long-term residence permit” shall be construed in accordance withsection 46(8);10
“marriage” means a marriage that is capable of being recognised inthe State as a valid marriage pursuant to the law in force at the timethat the marriage is being considered by the Minister under this Act,other than a marriage that has been deemed or determined by theMinister under section 138 to be a marriage of convenience;15
“member of a crew” means any person engaged in the working orservice of an aircraft or vessel;
“member state of the EEA” means a state that is a contracting partyto the Agreement on the European Economic Area signed at Oportoon 2 May 1992, as amended for the time being;20
“Minister” means the Minister for Justice and Law Reform;
“non-coding part of DNA”, in relation to a person, means the chro-mosome regions of the person’s DNA that are not known to providefor any functional properties of the person;
“non-renewable residence permission” means a residence permission25that is expressed not to be renewable;
“non-return order” shall be construed in accordance with section 55;
“passenger” means any person, other than a member of a crew, trav-elling or seeking to travel on board a vehicle;
“persecution” shall be construed in accordance with Part 7;30
“port” includes any place, whether on a land or sea frontier, wherea person might arrive in or depart from the State and includes anairport;
“prescribed” means prescribed by regulations made by the Minister;
“protection” shall be construed in accordance with section 69(1);35
“protection applicant” means a person who has applied for protec-tion in the State and whose application has not been—
(a) determined, or
(b) withdrawn or deemed to be withdrawn;
“protection application” means an application for protection in the40State made to the Minister, and, in sections 69(3)(b), 88(4)(f),108(2)(i), 119 and 120, includes an equivalent application made inanother state;
“protection application entry permission” shall be construed inaccordance with section 75;45
15
“protection declaration” shall be construed in accordance withsection 109;
“protection permission” shall be construed in accordance withsection 110;
“protection permit” shall be construed in accordance with section 5110(7);
“refoulement” means the sending of a foreign national from theState to a territory where—
(a) in the opinion of the Minister, the life or freedom of theforeign national will be threatened on account of his or 10her race, religion, nationality, membership of a particularsocial group or political opinion, as these terms are con-strued under section 72,
(b) the Minister has substantial grounds for believing that theforeign national will face a real risk of suffering serious 15harm, or
(c) the Minister has substantial grounds for believing that theforeign national will be in danger of being subjected totorture or inhuman or degrading treatment orpunishment; 20
“Registrar” means the Registrar of the Tribunal appointed undersection 104;
“relevant immigration area office”, in relation to a foreign national,means the immigration area office for the immigration area in whichthat foreign national has or will have his or her dwelling place while 25in the State, or such other immigration area office as may be speci-fied by the Minister;
“renewable residence permission” means a residence permission thatis expressed to be renewable;
“residence permission” shall be construed in accordance with 30section 35(1);
“residence permit” shall be construed in accordance with section 44and, in sections 29(5) and (6), 31(1)(p), 114(14)(e), 126(2)(b)(i)(I)and 142(2)(d), includes a long-term residence permit;
“revenue offence” means a revenue offence within the meaning of 35section 2 of the Criminal Justice (Mutual Assistance) Act 2008;
“safe third country” means a country designated as a safe third coun-try by order under section 118;
“serious harm” shall be construed in accordance with section 67(1);
“serious non-political crime” includes particularly cruel actions, even 40if committed with an allegedly political objective;
“social welfare benefits” includes any payment or services under theSocial Welfare Acts, the Health Acts 1947 to 2009 and the HousingActs 1966 to 2009;
“subsequent protection application” means a protection application 45made by or on behalf of a person after a protection application entrypermission that had been granted to him or her has ceased to bevalid under section 75(4);
16
“torture” has the meaning it has in section 1 (as amended by section186 of the Criminal Justice Act 2006) of the Criminal Justice (UnitedNations Convention Against Torture) Act 2000;
“territory” includes the frontier of a territory;
“trafficking” means—5
(a) trafficking a child for the purposes of the exploitation ofthe child, or
(b) trafficking a person for the purposes of the exploitation ofthat person,
within the meaning of the Criminal Law (Human Trafficking) Act102008;
“transit visa” shall be construed in accordance with section 12;
“travel document” means—
(a) a passport or other document that—
(i) identifies the holder,15
(ii) in the case of a passport, states his or her national-ity, and
(iii) was issued by or on behalf of an authority recognisedfor the purpose by the Government or, if it has beenrenewed, was renewed by such an authority,20
(b) a national identity document issued by a Member State, or
(c) a travel document issued under section 115;
“Tribunal” means the Protection Review Tribunal established bysection 100;
“vehicle” means any means of transport, mechanically propelled or25not, used, constructed or adapted to carry or convey persons orgoods by land, water or air;
“vessel” means a waterborne craft of any type, whether self-pro-pelled or not, and includes an air cushion craft and any structure inor on water or on water and attached to land;30
“visa” shall be construed in accordance with section 12;
“visa application” shall be construed in accordance with section 16;
“visa-exempt foreign national” shall be construed in accordance withsection 12.
3.—(1) The Minister may make regulations in relation to any35matter referred to in this Act as prescribed or to be prescribed.
(2) Different regulations under subsection (1) may be made inrespect of different classes of matter the subject of the prescribingconcerned.
(3) Regulations under this Act may contain such incidental, sup-40plementary, consequential and transitional provisions as appear to
17
Orders andregulations.
Expenses.
Repeals andrevocation.
Foreign nationalslawfully andunlawfully present.
the Minister to be necessary or expedient for the purposes or inconsequence of, or to give full effect to, such regulations.
(4) Every regulation or order (other than an order under section1(2) or 100(1), regulations under section 46(1)(b) or an order relatingto an individual) made under this Act shall be laid before each 5House of the Oireachtas as soon as practicable after it is made and,if a resolution annulling such order or regulation is passed by eithersuch House within the next 21 days on which that House has sat afterthe order or regulation is laid before it, the order or regulation shallbe annulled accordingly but without prejudice to the validity of any- 10thing previously done thereunder.
4.—The expenses incurred by the Minister in the administrationof this Act shall, to such extent as may be sanctioned by the Ministerfor Finance, be paid out of moneys provided by the Oireachtas.
5.—(1) The following enactments are repealed: 15
(a) the Aliens Act 1935;
(b) the Refugee Act 1996;
(c) the Immigration Act 1999;
(d) the Immigration Act 2003;
(e) the Immigration Act 2004; and 20
(f) the Illegal Immigrants (Trafficking) Act 2000.
(2) The European Communities (Eligibility for Protection) Regu-lations 2006 (S.I. No. 518 of 2006) are revoked.
(3) The repeals and revocation given effect by this section aresubject to the provisions of Part 10. 25
PART 2
General
6.—(1) The presence in the State of a foreign national is lawful if,and only if, it is in accordance with permission given or deemed tobe given to him or her, in accordance with this Act, to be present in 30the State.
(2) The entry into the State of a foreign national is lawful if, andonly if, it is in accordance with permission given or deemed to begiven to him or her, in accordance with this Act, to enter the State.
(3) A foreign national who is present in or enters the State unlaw- 35fully is guilty of an offence.
(4) A foreign national whose presence in the State is unlawful isunder an immediate and continuing obligation to leave the State.
(5) A foreign national who does not comply with the obligationunder subsection (4) may be removed from the State in accordance 40with the provisions of this Act.
18
(6) A foreign national may be arrested, or arrested and detained,for the purpose of securing his or her removal under subsection (5).
(7) Reasonable force may be used if necessary to secure theremoval of a foreign national under subsection (5).
(8) In the determination by the Minister of any question relating5to the grant of a visa to or the entry into, presence in or removalfrom the State, of a foreign national, other than the question whetherthe foreign national is entitled to protection in the State, the foreignnational shall not be entitled to derive any benefit from any periodof unlawful presence in the State.10
(9) A foreign national at a frontier of the State who has beenrefused permission to enter the State—
(a) may not enter the State or, if he or she has entered it, shallleave it, and
(b) may be removed from the State in accordance with the15provisions of this Act.
(10) Subsections (6) to (8) apply to a removal under subsection(9)(b) as they apply to a removal under subsection (5).
(11) If, in any proceedings of whatever nature—
(a) a question arises whether, for the purposes of a provision20of this Act, a person is—
(i) a foreign national,
(ii) a foreign national of a particular nationality,
(iii) a foreign national of a particular class,
(iv) a foreign national related to a particular person, or25
(v) a foreign national of a nationality, class of nationalityor other class specified in an order or regulationsmade under this Act,
and
(b) the resolution of that question in a particular way will fav-30our or tend to favour the lawfulness of the person’s entryinto or, as the case may be, presence in the State,
then the onus of proving the facts which may so resolve that questionshall lie on that person.
7.—For the avoidance of doubt, the fact that a foreign national35seeking to enter into or be present or remain in the State is married,or related by marriage, to a particular person does not, of itself,create any entitlement for that foreign national to be granted a visa,entry permission or residence permission, or have a residence per-mission renewed under this Act.40
19
Marriage itself notto createimmigrationadvantage.
Persons havingpermission to be inthe State byoperation ofsection.
Limits onentitlement offoreign nationalsunlawfully presentto certain services,etc.
8.—(1) Subject to section 132, the following persons have, by vir-tue of this subsection, permission to be present in the State:
(a) a person who is entitled, in the State, to privileges andimmunities—
(i) by virtue of section 5 or 6 of the Diplomatic Relations 5and Immunities Act 1967, or
(ii) under or by virtue of an Act of the Oireachtas or aninstrument made under such an Act;
(b) a national of the United Kingdom of Great Britain andNorthern Ireland. 10
(2) The Minister may, by order, provide that—
(a) such person, or
(b) persons within such class of persons,
as is specified in the order shall be regarded as having permission tobe present in the State. 15
9.—(1) A foreign national present in the State whose presence inthe State is unlawful shall not—
(a) seek employment,
(b) enter the service of an employer,
(c) be in employment (including self-employment), or 20
(d) engage for gain in any business, trade or profession, inthe State.
(2) Subject to subsection (3), a foreign national present in theState whose presence in the State is unlawful shall not be entitled toapply for or receive any of the following benefits or services: 25
(a) a payment under the Social Welfare Consolidation Act2005;
(b) a benefit or service provided by or on behalf of the HealthService Executive, other than services provided under theCivil Registration Act 2004; 30
(c) the provision of housing services by a housing authority;
(d) higher or further education or training, the provision ofwhich to the foreign national is financed out of publicfunds;
(e) the grant of a driving licence or learner permit; 35
(f) services, including apprenticeship schemes and trainingcourses, that are run or provided, or the provision ofwhich is arranged, by An Foras Áiseanna Saothair;
(g) the grant by a statutory body of any licence or other auth-orisation which a person is required under any enactment 40
20
to possess in order for his or her engagement in a part-icular business, trade or profession to be lawful;
(h) any benefit or service for the time being prescribed by theMinister after consultation with the Minister of theGovernment responsible for or, in the opinion of the5Minister, otherwise concerned with, the provision of thatbenefit or service.
(3) Subsection (2) does not apply in relation to the provision of—
(a) medical treatment or services, where such provision whilethe foreign national is present in the State is essential,10and the foreign national does not have sufficientresources to pay for that treatment or those services,
(b) medical or other services necessary for the protection ofpublic health,
(c) access to early childhood, primary or secondary education15to a foreign national who is under the age of 18 years,
(d) a payment under sections 201 and 202 of the Social Wel-fare Consolidation Act 2005,
(e) free legal aid under the Criminal Justice (Legal Aid) Act1962 or, in any proceedings relating to the foreign20national’s removal from the State, legal advice or legalaid under the Civil Legal Aid Act 1995, or
(f) such other benefits or services (however described) as maybe prescribed, being benefits or services that, in theopinion of the Minister—25
(i) are of a humanitarian nature,
(ii) are provided for the purpose of dealing with or allevi-ating emergencies, or
(iii) are provided by way of assistance towards the repatri-ation of foreign nationals.30
(4) Before prescribing any benefit or service under subsection(3)(f), the Minister shall consult the Minister for Finance and suchother Minister of the Government as is responsible for or, in theopinion of the Minister, otherwise concerned with, the provision ofthe benefit or service.35
(5) The provision to a foreign national of any benefit or service(however described) referred to in subsection (3) shall not, of itself,render his or her presence in the State lawful, nor shall it, of itself,affect the operation of section 6.
(6) (a) Subsection (2) shall not be construed as conferring a right40or entitlement to apply for or receive any benefit orservice not referred to therein or prescribed thereunder.
(b) Where a foreign national applies for or seeks any benefitor service referred to in subsection (2), the onus ofproving that his or her presence in the State is lawful shall45lie on that foreign national.
(7) In this section—
21
Saver for EU rightsand obligations.
Delegation offunctions ofMinister to personsnot officers of theMinister.
“driving licence” has the meaning assigned to it by section 22 of theRoad Traffic Act 1961;
“housing services” shall be construed in accordance with the HousingActs 1966 to 2009;
“housing authority” has the meaning assigned to it by section 23 (as 5amended by section 8 of the Housing (Miscellaneous Provisions) Act2009) of the Housing (Miscellaneous Provisions) Act 1992;
“learner permit” has the meaning assigned to it by section 35 (asinserted by section 11 of the Road Traffic Act 2006) of the RoadTraffic Act 1961; 10
“statutory body” means—
(a) a Minister of the Government,
(b) a local authority,
(c) the Health Service Executive,
(d) the Garda Commissioner or a member of the Garda Síoch- 15ána duly authorised by the Garda Commissioner,
(e) a company established under the Companies Acts,financed wholly or partly by means of moneys provided,or loans made or guaranteed, by a Minister of theGovernment or the issue of shares held by or on behalf 20of a Minister of the Government or a subsidiary of anysuch body, or
(f) any other board or body established by or under statute.
10.—(1) Nothing in this Act shall be construed as affecting anyobligation of the State under a European act. 25
(2) Except where otherwise provided, nothing in this Act shall beconstrued as affecting the operation of—
(a) the European Communities (Aliens) Regulations 1977(S.I. No. 393 of 1977),
(b) the European Communities (Right of Residence for Non- 30Economically Active Persons) Regulations 1997 (S.I. No.57 of 1997), or
(c) the European Communities (Free Movement of Persons)(No. 2) Regulations 2006 (S.I. No. 656 of 2006).
11.—(1) Subject to subsection (4), the Minister may, in writing, 35delegate any of his or her functions under this Act to a named personor to a specified category of persons, who is or are not officers ofthe Minister.
(2) Where the person or category of persons referred to in subsec-tion (1) is a person or category of persons who is or are agents, 40officers or employees of another Minister of the Government, theMinister shall not delegate the functions concerned without firstobtaining the consent of that other Minister.
22
(3) Every function delegated under this section shall be perfor-med subject to the general supervision and control of the Ministerand to such limitations (if any) as may be specified in the delegationand different limitations may be specified in regard to different per-sons or categories of persons.5
(4) Nothing in this section shall be construed as permitting thedelegation of the Minister’s power under this Act to make orders orregulations or to give directions.
(5) Nothing in this section shall affect the operation of any ruleof law under which the Minister’s functions may be performed on10his or her behalf by an officer of the Minister.
PART 3
Visas
12.—In this Part—
“transit visa” means a certificate granted to a foreign national by or15on behalf of the Minister stating that its holder is permitted to arriveat a port, or at a specified port, in the State with the intention ofpassing through the port in order to travel to another state;
“visa” means a certificate granted to a foreign national by or onbehalf of the Minister stating that its holder is permitted, for the20purpose of seeking an entry permission, to be present at a frontierof the State—
(a) within such period,
(b) for such purpose, and
(c) on such or so many occasions,25
as are specified in the visa;
“visa-exempt foreign national” means a foreign national or a personwho is in a class of foreign nationals who is exempt, under an ordermade under section 15, from the requirement to have a visa.
13.—(1) A foreign national seeking to enter the State shall be in30possession of a valid visa in respect of that entry unless he or she isa visa-exempt foreign national.
(2) A visa is valid if, and only if—
(a) it—
(i) is affixed to a travel document, or35
(ii) complies with any regulations made by the Ministerthat relate to the affixation of visas to traveldocuments,
(b) it was not granted on the basis of information referred toin section 17(5)(e), and40
(c) it is not revoked under section 20.
23
Interpretation(Part 3).
Obligation topossess valid visa.
Powers of Minister.
Visa-exempt foreignnationals.
(3) A foreign national who contravenes subsection (1) is guilty ofan offence.
14.—(1) The Minister may prescribe such relevant information tobe included in a visa, as respects foreign nationals to whom a visarelates, as he or she considers necessary. 5
(2) The Minister may prescribe such categories of visa as he orshe considers necessary or desirable, and may take into account, inprescribing such categories, any relevant factors, including—
(a) nationality,
(b) age, 10
(c) purpose of entry into and presence in the State,
(d) proposed duration of that presence,
(e) number of entries into the State to be permitted,
(f) place where the visa application is to be made,
(g) method of application for the visa, 15
(h) whether the foreign nationals concerned have or pre-viously have had permission to enter and be present inthe State,
(i) circumstances of priority or urgency attached to a visaapplication. 20
(3) The Minister may attach different conditions to different cat-egories of visas or to particular visas and, in doing so shall haveregard to the matters specified in section 141(2) and (4).
15.—(1) The Minister may by order designate a foreign nationalor a class or classes of foreign nationals as exempt from the require- 25ment to have a visa.
(2) Without prejudice to the power of designation referred to insubsection (1), factors by reference to which that power may be exer-cised include:
(a) nationality; 30
(b) age;
(c) purpose of entry into and presence in the State;
(d) proposed duration of that presence;
(e) occupation;
(f) diplomatic status; 35
(g) immigration status (whether in the State or another state);
(h) any matters specified in subsection (2) or (4) of section 141;
24
(i) any combination of the factors referred to in paragraphs(a) to (h).
(3) The fact that the exercise by the Minister of the power undersubsection (1) has the effect that the same foreign national may, insome circumstances, be a visa-exempt foreign national and, in others,5not be, shall not invalidate the exercise of that power.
16.—(1) (a) A foreign national, other than a visa-exempt foreignnational, who is seeking permission to enter the Stateshall apply to the Minister for a visa.
(b) The Minister may receive and consider visa applications.10
(2) A visa application shall be—
(a) in the prescribed form (if any),
(b) accompanied by such fee (if any) as may be prescribed,
(c) accompanied by such information as may be prescribed,
(d) accompanied by a travel document, and15
(e) where subsection (3)(c) applies, accompanied by thedeposit, bond or guarantee required under thatsubsection.
(3) The Minister may prescribe—
(a) the form in which visa applications are to be made,20
(b) the manner in which the foreign national’s biometric infor-mation is to be provided,
(c) circumstances when foreign nationals are required to—
(i) provide a deposit, or
(ii) enter into a bond, whether or not secured by25guarantee.
17.—(1) The Minister shall determine whether a visa is to begranted to a visa applicant.
(2) The onus of satisfying the Minister that he or she should exer-cise the powers under this Part and grant a visa to a visa applicant30shall lie on that visa applicant.
(3) The Minister may, before determining a visa application,make or cause to be made such inquiries as he or she considers, inhis or her absolute discretion, appropriate.
(4) In determining a visa application, the Minister shall take into35account all information that appears to the Minister to be relevant,whether or not provided by the applicant.
(5) The Minister shall refuse to grant a visa if he or she considersits refusal to be justified for any reason, including that, in his orher opinion—40
25
Visa application.
Determination ofvisa application.
(a) the application does not meet the requirements of section16,
(b) the purpose for which entry into and presence in the Stateis sought is not that stated in the application,
(c) presence in the State is sought for a specified period and 5the applicant’s connections with his or her place of resi-dence or country of origin are not sufficient to satisfy theMinister that the applicant will leave the State at the endof that period,
(d) the applicant would be unlikely to be able, while in the 10State, to support himself or herself and anyaccompanying dependants without recourse to publiclyfunded benefits or services,
(e) the information provided by the applicant with or in con-nection with the application is false, incomplete or other- 15wise misleading,
(f) the applicant has not complied with an obligation imposedon him or her by or under this Act to provide informationin, or in connection with, the visa application,
(g) any— 20
(i) conduct of the applicant or any member of his or herfamily in connection with immigration (whether ornot to the State), or
(ii) criminal conviction of the applicant,
indicates that the applicant would be unlikely to comply 25with a condition of permission to enter and be present inthe State,
(h) the applicant’s entry into or presence in the State wouldbe a risk to national security, public security, publichealth or public order or be contrary to public policy 30(“ordre public”),
(i) the circumstances surrounding the applicant’s presence inthe State would result in an inappropriate expenditure ofpublic funds,
(j) the applicant— 35
(i) intends to travel (whether immediately or not) toGreat Britain, Northern Ireland, the Channel Islandsor the Isle of Man, and
(ii) would not qualify for admission to that place if he orshe arrived there from a place other than the State, 40
(k) the applicant has failed to discharge a liability for costsunder section 66,
(l) any previous conduct of any person or organisation con-nected with the applicant’s purpose for being present inthe State indicates that any requirement imposed on the 45applicant in respect of his or her entry into or presencein the State is unlikely to be complied with.
26
(6) In this section, “criminal conviction” means a criminalconviction—
(a) in the State, or
(b) outside the State, where the act or omission that consti-tuted the offence of which the applicant was convicted, if5done or made in the State on the date on which the visaapplication is determined, would constitute an offence inthe State.
18.—(1) Where the Minister, pursuant to a visa application,decides to grant a visa, he or she shall, as soon as practicable—10
(a) grant a visa to the applicant concerned,
(b) arrange for the issue of the visa concerned, and
(c) give notice of his or her decision to the applicant con-cerned, which may include—
(i) by having the notice posted on a website that is15designed to ensure that each such notice is accessibleonly to the person for whom it is intended, or
(ii) transmitting to the applicant his or her travel docu-ment to which the visa concerned has been affixed.
(2) A visa granted under subsection (1)—20
(a) may be of a category specified under section 14(2), and
(b) whether or not it is of such a category, may be grantedsubject to such additional conditions as the Minister con-siders appropriate, having regard to the matters specifiedin section 141.25
19.—(1) Where the Minister refuses a visa application he or sheshall, as soon as practicable, give notice to the applicant concernedof the refusal and the reason or reasons for it.
(2) The Minister, in giving notice under subsection (1), shallinform the applicant whether a review is available under section 2130and, where it is, how it may be sought.
(3) Section 18(1)(c)(i) shall apply to the giving of a notice underthis section as it applies to the giving of a notice under that section.
20.—(1) The Minister may revoke a visa if he or she considers itsrevocation to be justified, for any reason, including that, in his or35her opinion—
(a) the visa was granted on the basis of information (includinginformation about the purpose of entry into or presencein the State) which was—
(i) false, incomplete or otherwise misleading, and40
27
Grant of visa.
Refusal of visaapplication.
Revocation of visa.
Visa reviewapplication.
(ii) furnished with the intention of misleading the Mini-ster in his or her determination of the visa appli-cation concerned,
(b) the presence in the State or arrival at its frontiers of theholder of the visa would not be conducive to national 5security, public security, public health or public order orwould be contrary to public policy (“ordre public”),
(c) circumstances existing at the time when the visa wasgranted have changed and the nature of the change issuch that, had the changed circumstances existed at that 10time, the visa would not have been granted, or
(d) the visa was granted in error.
(2) Where the Minister revokes a visa, he or she shall take allreasonable steps to inform the person concerned as soon as practi-cable of that fact and the reasons for it, which may include by com- 15plying with section 18(1)(c)(i).
21.—(1) Subject to subsection (2), a visa applicant whose visaapplication is refused under section 17(5) or a person who was theholder of a visa which has been revoked under section 20(1), mayapply to the Minister for a review of the visa refusal or visa revo- 20cation, as the case may be.
(2) The following shall not be entitled to make an applicationunder this section:
(a) a visa applicant whose visa application is refused, wherethe reasons for the refusal consist of or include the reason 25referred to in section 17(5)(e) and the information con-cerned was furnished with the intention of misleading theMinister in his or her determination of the visaapplication;
(b) a person who was the holder of a visa which has been 30revoked, where the reasons for the refusal consist of orinclude that referred to in section 20(1)(a).
(3) An application under this section shall be—
(a) made by the foreign national whose visa application wasrefused or whose visa was revoked, 35
(b) in the case of a visa refusal, made within 8 weeks of thenotification referred to in section 19(1),
(c) in the case of a visa revocation, made within 3 weeks ofthe notification referred to in section 20(2),
(d) made in the prescribed form (if any), 40
(e) accompanied by such fee (if any) as may be prescribed,and
(f) accompanied by a statement of the grounds upon whichthe review is sought and such information and documen-tary evidence as the foreign national proposes to use in 45support of the application.
28
(4) An application which complies with subsection (3) shall bereviewed by a visa review officer who—
(a) shall be a person other than the person who made thedecision to refuse or revoke the visa, as the case maybe, and5
(b) shall—
(i) be of a grade senior to the grade of the person whomade the decision concerned, or
(ii) if it would be impracticable for the visa review officerto be a person of such a grade, be of the same grade10as the grade of the person who made the decisionconcerned.
(5) The visa review officer may, before determining an applicationunder this section, make or cause to be made such inquiries as he orshe considers appropriate.15
(6) In determining an application under this section, the visareview officer shall have regard to all information that appears tothe review officer to be relevant, whether or not provided by theapplicant.
22.—(1) A visa review officer shall, on carrying out a visa review20under section 21, either—
(a) confirm the visa refusal or visa revocation, or
(b) set it aside.
(2) A confirmation under subsection (1)(a) may be on the samegrounds as the visa refusal or visa revocation or on other grounds25(or partly on the same grounds, and partly on other grounds) and,where it is (or is partly) on other grounds, those other grounds shallbe substituted for or added to the grounds of the visa refusal orvisa revocation.
(3) Where, under subsection (1)(a), the visa review officer con-30firms a visa refusal or visa revocation, the review officer shall givenotice to the visa review applicant concerned, which may include bycomplying with section 18(1)(c)(i).
(4) Where, under subsection (1)(b), the review officer sets aside avisa refusal or visa revocation, the review officer shall grant the visa35concerned in accordance with section 18 and arrange for the issue ofthe visa concerned.
23.—(1) The Minister may by order designate a foreign nationalor a class or classes of foreign nationals as being required to have atransit visa in order to be permitted to arrive at a port, or a specified40port, in the State with the intention of passing through the port inorder to travel to another state.
(2) Without limiting the power of designation referred to in sub-section (1), factors by reference to which that power may be exer-cised include:45
(a) nationality;
29
Determination ofvisa reviewapplication.
Transit visa.
Entry into State tobe by way ofapproved ports, etc.
(b) age;
(c) purpose of entry into and presence in the State;
(d) proposed duration of that presence;
(e) occupation;
(f) diplomatic status; 5
(g) immigration status (whether in the State or another state);
(h) any matters specified in subsection (2) or (4) of section 141;
(i) any combination of the factors referred to in paragraphs(a) to (h).
(3) The fact that the exercise by the Minister of the power under 10subsection (1) has the effect that the same foreign national may, insome circumstances, be required to have a transit visa and, in others,not be so required, shall not invalidate the exercise of that power.
(4) A foreign national to whom an order under subsection (1)applies shall not arrive at a port in the State unless he or she is in 15possession of a valid transit visa in respect of that arrival.
(5) A foreign national who contravenes subsection (4) is guilty ofan offence.
(6) Sections 13, 14 and 16 to 22 apply in respect of a transit visaas they apply to a visa. 20
PART 4
Entry into the State
24.—(1) A person (other than an Irish citizen) arriving from out-side the State by air or sea shall not enter or attempt to enter theState elsewhere than at an approved port, unless— 25
(a) the Minister has consented to such entry, with or withoutconditions, which may include conditions requiring theperson to—
(i) present himself or herself to an immigration officeron arrival in the State, and 30
(ii) provide such information to the immigration officeras the immigration officer may require for the pur-poses of this Act, or
(b) the person is—
(i) a person who arrives in the course of employment as 35a member of a crew,
(ii) a person who enters or attempts to enter the Stateelsewhere than at an approved port as a result of anemergency affecting an aircraft or vessel, a medicalor other emergency, or circumstances beyond the 40person’s control,
30
or
(iii) a national of the United Kingdom of Great Britainand Northern Ireland who has travelled directlyfrom Great Britain, Northern Ireland, the ChannelIslands or the Isle of Man.5
(2) Consent may be given in respect of one or more persons orclasses of persons.
(3) The Minister may give directions regarding the means of seek-ing consent, and those directions may require any or all of the follow-ing matters:10
(a) that a person seeking consent apply for it in writing;
(b) that an application for consent include information in suchform and regarding such matters as the Minister mayspecify in the directions;
(c) that a specified undertaking be provided;15
(d) that an application for consent be accompanied by suchfee (if any) as may be prescribed;
(e) that any information or undertaking required under para-graph (b) or (c) be provided, or any fee required underparagraph (d) be paid, before the person arrives in the20State.
(4) (a) Where the Minister gives consent, he or she may, if satis-fied on the basis of the information available to him orher (including information that is included in the appli-cation under a direction made under subsection (3)(b))25that it is appropriate to do so, waive the requirementunder section 27(1) in respect of the person who is thesubject of the consent.
(b) A person who arrives in the State in compliance with aconsent to which a waiver under paragraph (a) applies30shall be deemed to have complied with the requirementunder section 27(1).
(5) A person who contravenes subsection (1) is guilty of anoffence.
(6) A person who contravenes subsection (1) shall be regarded as35having been refused an entry permission.
25.—(1) The Minister may by order designate a place to be anapproved port for the purposes of this Act.
(2) The designation of a place as an approved port may be subjectto such conditions as are specified in the order, which may include40conditions—
(a) obliging the person having the management and control ofthe approved port to provide, free of charge, such accom-modation and other facilities as the Minister may requirefor the purpose of the performance of functions under45this Part at the approved port, and
31
Approved ports.
Requirement fortravel document atfrontier of State.
Arrival at frontierof State:presentation andexamination.
(b) obliging that person to maintain that accommodation andthose other facilities in a manner that is compatible withthe efficient performance of those functions.
(3) Before deciding to impose a condition under subsection (2),the Minister shall consult the person referred to in that subsection. 5
(4) A person is guilty of an offence if the person operates a portor other place that is not an approved port and—
(a) represents it to be an approved port,
(b) knowingly facilitates the entry into the State of anotherperson at that port or other place so that the other person 10thereby commits an offence under section 24(5), or
(c) knowing that another person has committed an offenceunder that section at that port or other place, fails toreport the circumstances to an immigration officer.
26.—(1) A person (other than a national of the United Kingdom 15of Great Britain and Northern Ireland who has travelled directlyfrom Great Britain, Northern Ireland, the Channel Islands or the Isleof Man or an Irish citizen) arriving or attempting to arrive fromoutside the State or entering or attempting to enter the State shallbe in possession of a valid travel document. 20
(2) A person (including an Irish citizen) arriving or attempting toarrive from outside the State or entering or attempting to enter theState shall—
(a) comply with such reasonable instructions as an immi-gration officer may give for those purposes, and 25
(b) furnish to an immigration officer such information in suchmanner as the immigration officer may reasonablyrequire for the purposes of the performance of his or herfunctions, and where the immigration officer requires aperson other than a foreign national to provide bio- 30metric information—
(i) the biometric information need only be furnished tothe extent necessary to enable the immigrationofficer to compare it with any biometric informationin a travel document furnished by the person, to 35establish that that travel document relates to him orher and to establish the validity of that travel docu-ment, and
(ii) the biometric information is not otherwise authorisedto be retained, stored or compared to any other bio- 40metric information.
(3) A person who contravenes this section is guilty of an offence.
(4) For the purposes of this Part, a person coming from outsidethe State who arrives at any place in the State shall be deemed tohave arrived at a frontier of the State. 45
27.—(1) A person (other than a person to whom a waiver hasbeen granted under section 24(4), a national of the United Kingdom
32
of Great Britain and Northern Ireland who has travelled directlyfrom Great Britain, Northern Ireland, the Channel Islands or the Isleof Man or an Irish citizen), on arrival at a frontier of the State, shallas soon as practicable—
(a) present himself or herself—5
(i) on arriving at an approved port, to an immigrationofficer at that port,
(ii) on arriving elsewhere in compliance with a consentunder section 24, in such manner as may be specifiedin that consent, and10
(iii) in any other circumstances, as soon as practicable toan immigration officer at his or her relevant immi-gration area office,
and
(b) apply for an entry permission, unless the person is a person15who has established a right to enter and be present in theState under the European Communities (Aliens) Regu-lations 1977 (S.I. No. 393 of 1977), the European Com-munities (Right of Residence for Non-EconomicallyActive Persons) Regulations 1997 (S.I. No. 57 of 1997) or20the European Communities (Free Movement of Persons)(No. 2) Regulations 2006 (S.I. No. 656 of 2006).
(2) A person shall be deemed to have presented himself or herselfto an officer referred to in subsection (1) if he or she—
(a) presents himself or herself in the prescribed manner, or25
(b) does all of the following things:
(i) reports in person to the officer;
(ii) produces to that officer a travel document;
(iii) provides to that officer such information as the officerreasonably requires for the purposes of carrying out30his or her functions.
(3) Subject to subsection (5)(a), an immigration officer may exer-cise the power to examine a person (other than an Irish citizen) arriv-ing at a frontier of the State, whether or not the person has presentedhimself or herself or is deemed to have presented himself or herself35to the officer, for the purpose of determining whether the personshould be granted an entry permission.
(4) Without prejudice to the generality of subsection (3), but sub-ject to subsection (5), the immigration officer may—
(a) require the person to state whether he or she has with him40or her any documents or articles which are relevant tothe carrying out of functions under this Part, and if so, toproduce any such documents or articles to the officer,
(b) search the person and anything he or she has with him orher for any such documents or articles,45
33
(c) examine any such documents or articles, and make andretain copies of the documents for the purposes of laterexamination,
(d) subject to subsection (5)(b), require the person to providebiometric information for examination and comparison 5at that time or for retention for later examination andcomparison or both,
(e) require the person to undergo a medical examination by aregistered medical practitioner, carried out having regardto any relevant International Health Regulations for the 10time being adopted by the World Health Assembly of theWorld Health Organisation, where the officer has reason-able cause to believe that the person has—
(i) a disease or condition subject to the InternationalHealth Regulations for the time being adopted by 15the World Health Assembly of the World HealthOrganisation, or
(ii) another infectious or contagious parasitic disease inrespect of which special provisions are in operationto prevent the spread of such diseases from abroad, 20
(f) photograph, or cause to be photographed, the person andretain any photograph taken, and
(g) do any other thing reasonably required to establish anymatters relevant to the determination, includingestablishing— 25
(i) the identity, nationality and country of origin of theperson,
(ii) the means of transport and route by which the persontravelled to the State,
(iii) matters relevant to the person’s application to enter 30and be present in the State,
(iv) the purpose of the person’s entry into and presencein the State,
(v) the intended duration of that presence,
(vi) the person’s intended dwelling place in the State, 35
(vii) any personal relationship between the person and anyother person in the State,
(viii) any personal relationship between the person and anyother person who has travelled, or ostensibly trav-elled, to the State with him or her or who sub- 40sequently intends to join him or her in the State,
(ix) the person’s income, earning capacity and other finan-cial or economic resources,
(x) the financial needs and responsibilities which the per-son has, will have or is likely to have, 45
34
(xi) whether the person is likely to comply with any pro-posed conditions of permission to enter or be presentin the State,
(xii) the results of any examination carried out under para-graph (e), or5
(xiii) any entitlements the person has to enter the State—
(I) under any European act,
(II) as a national of a member state of the EEA or ofthe Swiss Confederation, or
(III) as a dependent relative of such a national.10
(5) (a) The powers referred to in subsection (4) may—
(i) in relation to a person who is a national of the UnitedKingdom and Northern Ireland who has travelleddirectly from Great Britain, Northern Ireland, theChannel Islands or the Isle of Man, be exercised only15to the extent necessary to ascertain that the personis such a national and has so travelled, and
(ii) in relation to a person who has established or who isclaiming a right to enter and be present in the Stateunder any of the Regulations referred to in subsec-20tion (1)(b), be exercised only to the extent necessaryto ascertain that the person is such a person.
(b) A requirement under subsection (4)(d) imposed on a per-son to whom paragraph (a) applies—
(i) requires the person to furnish that information only25to the extent necessary for ascertaining that he orshe is a person to whom paragraph (a) applies, and
(ii) does not otherwise authorise the retention, storage orcomparison of that information.
(6) Where, in the course of an examination under this section, a30foreign national indicates that he or she—
(a) wishes to make a protection application in the State,
(b) is seeking the protection of the State against persecutionor serious harm,
(c) is requesting not to be returned or removed to a particular35country for fear of persecution or serious harm, or
(d) is otherwise unwilling to leave the State for fear of per-secution or serious harm,
the immigration officer shall—
(i) subject to sections 29(4) and 81(2), grant that foreign40national a protection application entry permission,
(ii) inform that foreign national, in a language that he or shemay reasonably be supposed to understand, of the pro-cedures for making a protection application and that he
35
Arrival of foreignnationals under theage of 18 years.
or she is entitled to consult a solicitor and the High Com-missioner,
(iii) conduct the remainder of the examination with the assist-ance of an interpreter who is able to ensure appropriatecommunication between the person being interviewed 5and the interviewer, which requirement shall be regardedas complied with if interpretation is provided in a langu-age that the person being interviewed may reasonably besupposed to understand and in which he or she is ableto communicate, 10
(iv) keep a record of the examination, and
(v) furnish a copy of the record to the foreign national and tothe Minister.
(7) The provisions of subsections (2) to (4) shall apply to a foreignnational who, under subsection (6), is granted a protection appli- 15cation entry permission.
(8) A person who contravenes subsection (1) is guilty of anoffence.
28.—(1) Where (whether or not in the performance of his or herfunctions under section 27) it appears to an immigration officer that 20a foreign national under the age of 18 years who has arrived at afrontier of the State is not accompanied, or is not to be accompanied,by an adult who is taking responsibility for the care and protectionof the foreign national, the officer shall, as soon as practicable, notifythe Health Service Executive of that fact. 25
(2) (a) Where (whether or not in the performance of his or herfunctions under section 27) it appears to an immigrationofficer that a foreign national under the age of 18 yearswho has arrived at a frontier of the State is accompaniedor to be accompanied by an adult, the officer shall require 30that adult to satisfy him or her that the adult is takingresponsibility for the care and protection of the foreignnational.
(b) For the purposes of paragraph (a), an immigration officermay make such inquiries of or about the foreign national, 35and the adult, as the immigration officer considers neces-sary in order to satisfy himself or herself that the adult istaking the responsibility referred to in paragraph (a) andis authorised to do so.
(c) Where the officer (whether or not having made appro- 40priate enquiries under paragraph (b)) is not satisfiedeither that the adult is taking responsibility for theforeign national or that the adult is authorised to do so,he or she shall so inform the Health Service Executive.
(3) Subsections (1) and (2) apply also in relation to a foreign 45national under the age of 18 years who is found in the State but inrespect of whom the Health Service Executive was not notified underthose subsections.
(4) It shall be presumed that a foreign national in respect of whomthe Health Service Executive has been notified under this section is 50a child in need of care and protection, and the Child Care Acts 1991
36
to 2007 and other enactments relating to the care and welfare ofpersons under the age of 18 years shall apply accordingly.
(5) Subsection (4) is without prejudice to the application to anyparticular foreign national under the age of 18 years of any enact-ment other than those mentioned in that subsection.5
(6) (a) Where it appears to an immigration officer that a foreignnational to whom this section applies is seeking protec-tion in the State, the officer shall, as soon as practicable,notify the Health Service Executive of that fact.
(b) Where it appears to the Health Service Executive, on the10basis of information available to it, that a protectionapplication should be made on behalf of a foreignnational in respect of whom it has been notified underthis section, subsections (8), (9) and (10) of section 81shall apply.15
(7) If and for so long as it appears to an immigration officer thata foreign national is 18 years of age or over, the provisions of thisPart shall apply to the foreign national as if he or she were 18 yearsof age or over.
29.—(1) An immigration officer, subject to section 31 and in20accordance with this Act, any regulations made under it and anydirections the Minister may give under section 143, may, on behalfof the Minister—
(a) grant to a foreign national permission to enter and bepresent in the State, whether or not subject to con-25ditions, or
(b) refuse to grant to a foreign national permission to enterand be present in the State.
(2) In exercising the power under subsection (1) or (3), the immi-gration officer shall have regard to all the circumstances relating to30the foreign national concerned, including—
(a) those ascertained under section 27, and
(b) any relevant information supplied by the Minister or anyother information holder.
(3) A foreign national to whom section 27(6) applies and who35applies for permission to enter the State shall not be refused suchpermission unless the foreign national concerned is subject to anexclusion order under section 132 and has not been given the consentreferred to in subsection (4).
(4) A person who is subject to an exclusion order under section40132 is not entitled to make a protection application without the con-sent of the Minister.
(5) Where an immigration officer, under subsection (1), grants anentry permission to a foreign national who is not the holder of avalid residence permit, the officer shall issue an entry permit to the45foreign national.
(6) Where an immigration officer, under subsection (1), grants anentry permission to a foreign national who is the holder of a valid
37
Entry permission.
Entry permit.
Refusal to grantentry into the State.
residence permit, the officer shall record the fact and date of theentry permission in the foreign national’s travel document.
(7) The grant of an entry permission to a person shall not, ofitself, entitle the person to the grant of a residence permission.
(8) Where a person to whom an entry permission is granted is 5entitled, under that permission, to apply under section 35 for a resi-dence permission, then, unless that person has so applied by the dateof expiration of that entry permission—
(a) he or she shall be ineligible to so apply, and
(b) his or her permission to be present in the State expires. 10
(9) Subject to section 32(3)(c), an entry permission shall be validfor a period that does not exceed 90 days.
30.—(1) An entry permit issued under section 29(5)—
(a) is evidence that the holder has been granted an entry per-mission that is valid for the period specified in the permit, 15
(b) shall be endorsed on the holder’s travel document,
(c) where the permission concerned entitles the holder toapply for a residence permission under section 35, shallstate that fact, and
(d) shall contain such other information and be in such form 20as may be prescribed.
(2) Where an entry permission is subject to conditions, the con-ditions shall be mentioned in the entry permit.
31.—(1) An immigration officer, in accordance with this Act, anyregulations made under it and any directions the Minister may give 25under section 143, may, on behalf of the Minister, exercise the powerreferred to in section 29(1)(b) to refuse to permit a foreign nationalto enter the State where the officer is satisfied—
(a) that the foreign national would be unlikely to be able,while in the State, to support himself or herself and any 30accompanying dependants without recourse to publiclyfunded benefits or services,
(b) that the foreign national’s and any accompanying depend-ants’ presence in the State would result in an inap-propriate expenditure of public funds, 35
(c) that he or she intends to take up employment in the State,but is neither in possession of a valid employment permitwithin the meaning of the Employment Permits Acts2003 and 2006 nor exempt from the requirement, underthose Acts, to possess such a permit, 40
(d) subject to section 32, that he or she suffers from a diseaseor condition referred to in paragraph (e) of section 27(4)or has refused to undergo a medical examinationrequired under that paragraph,
38
(e) that he or she has failed to co-operate in an examinationconducted under section 27,
(f) that he or she has been convicted—
(i) in the State, of an offence punishable by imprison-ment for a period of 12 months or by a more severe5penalty, or
(ii) outside the State, where the act or omission that con-stituted the offence of which the applicant was con-victed, if committed in the State at the date of theimmigration officer’s decision, would constitute an10offence punishable under the laws of the State byimprisonment for a period of 12 months or by a moresevere penalty,
(g) that he or she neither has a visa nor is a visa-exemptforeign national,15
(h) that he or she is the subject of—
(i) a non-return order under section 55,
(ii) a removal order or an exclusion order under theEuropean Communities (Free Movement ofPersons) (No. 2) Regulations 2006,20
(iii) a removal from the State under section 59, the periodreferred to in subsection (8) of that section not hav-ing expired,
(iv) an exclusion order under section 132,
(v) an expulsion decision within the meaning of Council25Directive 2001/40/EC of 28 May 20017 on the mutualrecognition of decisions on the expulsion of thirdcountry nationals, which stands for the time beingin force,
(vi) an entry ban within the meaning of Council Directive302008/115/EC of the European Parliament and of theCouncil of 16 December 2008 on common standardsand procedures in Member States for returningillegally staying third-country nationals8,
(vii) any order or determination made by the Minister35under any enactment, or under any other power ofthe Minister, relating to the entry into, or presenceor residence in, the State, which requires the foreignnational to leave the State or which prohibits theforeign national’s entry into or presence in the40State, or
(viii) a determination under section 119 or 120 that theapplicant should be transferred,
(i) that he or she is not in possession of a valid traveldocument,45
(j) that he or she—7O.J. No. L 149, 02.06.2001, p. 348O.J. No. L 348, 24.12.2008, p. 98
39
Entry into State:healthconsiderations.
(i) intends to travel (whether immediately or not) toGreat Britain, Northern Ireland, the Channel Islandsor the Isle of Man, and
(ii) would not qualify for admission to that place if he orshe arrived there from a place other than the State, 5
(k) that he or she, having arrived in the State in the course ofemployment as a member of a crew, has remained in theState without the permission of an immigration officerafter the departure of the aircraft or vessel in which heor she arrived, 10
(l) that his or her entry into or presence in the State wouldbe a risk to national security, public security or publicorder or be contrary to public policy (“ordre public”),
(m) that there is reason to believe that the purpose for whichentry into and presence in the State is sought is not that 15which he or she has stated,
(n) that he or she has failed to discharge a liability for costsunder section 66,
(o) that any previous conduct of any person or organisationconnected with the foreign national’s purpose for being 20present in the State indicates that any requirementimposed on the foreign national in respect of his or herentry into and presence in the State is unlikely to be com-plied with,
(p) that he or she is in possession of a fraudulently obtained 25entry permit or residence permit, or
(q) that, subject to section 27(6), any documentation providedby the applicant is—
(i) false, incomplete or otherwise misleading, and
(ii) furnished with the intention of misleading an immi- 30gration officer in the exercise of his or her powerunder section 27.
(2) An immigration officer who, under subsection (1), refuses topermit a foreign national to enter the State shall as soon as practi-cable inform the foreign national in writing of the grounds for the 35refusal.
32.—(1) A foreign national who after being examined undersection 27 would be refused an entry permission shall neverthelessbe permitted to enter the State if, following a medical examinationunder section 27(4)(e), or the refusal of the foreign national to 40undergo such an examination, an order is made in respect of thatforeign national under section 38 (as amended by section 35 of theHealth Act 1953) of the Health Act 1947.
(2) An entry permission granted under subsection (1) shall be forthe purposes of the operation of section 38 of the Health Act 1947 45and for no other purpose, and a period of presence in the State onthe basis of such entry permission shall not be reckonable as a periodof residence in the State for any purpose.
40
(3) (a) A person permitted to enter the State under subsection (1)shall be deemed to be lawfully present in the State forthe purposes of the operation of section 38 of the HealthAct 1947 and for no other purpose.
(b) Notwithstanding paragraph (a), section 9 shall apply to a5person permitted to enter the State under subsection (1)as if his or her presence in the State was unlawful.
(c) The period of deemed lawful presence referred to in para-graph (a) shall, notwithstanding section 29(9), expire inaccordance with subsection (4).10
(4) On the giving of a certificate under section 38(1) of the HealthAct 1947 stating that the foreign national is no longer a probablesource of infection, or on the termination otherwise of a period ofdetention under that section, the foreign national—
(a) is unlawfully present in the State, and15
(b) shall be treated as a person to whom an entry permissionhas been refused under section 29(1)(b).
(5) A person to whom an entry permission is given under subsec-tion (1) shall be given a notice in writing stating the grounds on whichentry permission would otherwise have been refused and the effect20of subsections (2) to (4).
33.—(1) Where a vehicle arrives at a frontier of the State from aplace other than Great Britain, Northern Ireland, the ChannelIslands or the Isle of Man, the carrier shall ensure—
(a) that all persons other than Irish citizens on board the25vehicle who are seeking to enter the State or to passthrough a port in the State in order to travel to anotherstate—
(i) do so at an approved port, or elsewhere in compliancewith a consent under section 24, and30
(ii) disembark there in compliance with any directionsgiven by an immigration officer,
(b) that all persons on board the vehicle who are seeking toenter the State present themselves to an immigrationofficer, for the purposes of sections 26 to 28, in a manner35specified by that or any other immigration officer, and
(c) that each person (other than an Irish citizen) on board thevehicle who is seeking to enter the State or to passthrough a port in the State in order to travel to anotherstate has with him or her a valid travel document and, if40required by law, a visa or, as the case may be, a transitvisa.
(2) A carrier who contravenes subsection (1) is guilty of anoffence and, where a contravention relates to more than one personon board the vehicle, the contravention constitutes, as respects each45person, a separate offence.
41
Duties of carriers.
(3) Subject to subsection (4), where a vehicle arrives in the Statefrom a place outside the State, the carrier shall, if so required by animmigration officer—
(a) provide him or her with a list specifying the name andnationality of each person carried on board the vehicle 5and in such form, and containing such other informationrelating to the identity of the person, as may beprescribed,
(b) provide him or her with details of the members of the crewof the vehicle, 10
(c) provide him or her with copies of such documents, includ-ing travel documents relating to any person carried onboard the vehicle, as may be prescribed,
(d) provide him or her with such other information as maybe prescribed, 15
(e) detain on board any foreign national coming in the vehiclefrom a place outside the State until the foreign nationalis examined by an immigration officer, and
(f) detain on board any foreign national referred to in para-graph (e) whose application for an entry permission has 20been refused by an immigration officer.
(4) If so required by an immigration officer, the carrier shallprovide the list, details, copies and information specified in subsec-tion (3)(a) to (d) before the departure of the vehicle from the lastplace it was before arriving in the State. 25
(5) A person who contravenes subsection (3) or (4) is guilty ofan offence.
(6) It is a defence for a person charged with an offence under aprovision of this section to show that he or she took all reasonablesteps open to him or her to ensure compliance with the provision. 30
(7) It is a defence for a person charged with an offence consistingof a contravention of subsection (1)(c) to show—
(a) that the person referred to in subsection (1)(c) had withhim or her the travel document, visa or transit visa beforeembarking on the vehicle, or 35
(b) that the person charged with the offence did not know andhad no reasonable grounds for suspecting that the traveldocument, visa or transit visa was invalid.
(8) A person guilty of an offence under this section is liable onsummary conviction to a fine of €3,000. 40
(9) In a prosecution for an offence under this section, it shall bepresumed, until the contrary is shown by the accused person, that apayment under a notice under section 34 has not been made.
(10) The Minister may from time to time draw up and publishguidelines concerning steps to be taken by carriers to ensure com- 45pliance by them with this section.
42
(11) A person detained under subsection (3)(e) or (f) is in lawfulcustody.
34.—(1) Where an immigration officer has reasonable grounds forbelieving that an offence under section 33 is being or has been com-mitted by a person, he or she shall serve, or cause to be served,5personally or by post, on the person a notice in the prescribed formstating—
(a) that the person is alleged to have committed the offence,
(b) that the person may, during the period of 28 days begin-ning on the date of the notice, make to a member of10the Garda Síochána or an authorised person at a GardaSíochána station or at another place specified in thenotice a payment of €1,500 accompanied by the notice,
(c) that a prosecution in respect of the alleged offence will notbe instituted during the period specified in the notice and,15if the payment specified in the notice is made during thatperiod, no prosecution in respect of the alleged offencewill be instituted.
(2) Where a notice is served under subsection (1)—
(a) a person to whom the notice applies may, during the20period specified in the notice, make to a member of theGarda Síochána or an authorised person at a GardaSíochána station or at another place specified in thenotice the payment specified in the notice, accompaniedby the notice,25
(b) the member or the authorised person may receive the pay-ment and issue a receipt for it and the money so receivedshall be paid into or disposed of for the benefit of theExchequer in such manner as the Minister for Financedirects and no payment so received shall in any circum-30stances be recoverable by the person who made it,
(c) a prosecution in respect of the alleged offence shall not beinstituted in the period specified in the notice, and, if thepayment specified in the notice is made during thatperiod, no prosecution in respect of the alleged offence35shall be instituted.
(3) In this section, “authorised person” means a person appointedby the Minister to be an authorised person for the purposes of thissection.
PART 540
Residence
35.—(1) The holder of an entry permission which entitles him orher to do so may apply to the Minister for permission to reside inthe State.
(2) Subject to subsection (9), a foreign national who is not a per-45son referred to in subsection (1) shall not be entitled to apply for aresidence permission.
43
Fixed penalties foroffences undersection 33.
Residencepermission.
(3) An application for a residence permission shall be—
(a) subject to subsection (9) and any regulations made undersection 57(b), made by the applicant in person at his orher relevant immigration area office, and
(b) accompanied by— 5
(i) the applicant’s travel document,
(ii) such fee (if any) as may be prescribed,
(iii) satisfactory evidence that the applicant continues tofulfil the conditions of his or her entry permission,
(iv) details of the reasons why a residence permission is 10being sought and the duration of the permissionbeing sought, and
(v) such further information as may be prescribed.
(4) The Minister, in making a determination of an application fora residence permission, may require the applicant to provide such 15further information as may be required to—
(a) assist the Minister in his or her consideration of thematters referred to in section 38, or
(b) maintain the accuracy of the Register of ForeignNationals. 20
(5) Subject to subsection (6), the Minister may grant residencepermissions—
(a) of such different categories,
(b) by reference to such different circumstances,
(c) by reference to such different classes of foreign national, 25and
(d) subject to such conditions, including conditions as to theduration of the residence permission and whether it maybe renewed.
as the Minister considers appropriate. 30
(6) The Minister shall exercise his or her power under subsection(5)—
(a) where regulations relevant to the category of residencepermission the Minister wishes to grant have been madeunder section 141, subject to those regulations, and 35
(b) in any other case, having regard to the matters specifiedin subsections (2) to (4) of section 141.
(7) A residence permission is subject to the provisions of this Actand regulations made under it.
(8) A residence permission shall not, unless otherwise specified, 40entitle the holder—
44
(a) to enter (or re-enter) the State, or
(b) to present himself or herself at a frontier of the State andseek permission to enter it.
(9) Notwithstanding subsection (2), where a foreign national is achild born in the State and is present in the State, an application for5a residence permission may be made on his or her behalf not laterthan 3 months after his or her birth.
36.—(1) The Minister shall cause to be established and main-tained a register of foreign nationals to whom residence permissions,long-term residence permissions or protection permissions have been10granted, which register shall be known as the Register of ForeignNationals.
(2) The Register of Foreign Nationals shall contain, in respect ofeach foreign national registered in it, the following information:
(a) the foreign national’s name in which his or her permission15was granted;
(b) the foreign national’s sex;
(c) a registration number for him or her;
(d) his or her nationality, how and when it was acquired andany previous nationality;20
(e) his or her date and place of birth;
(f) his or her profession or occupation and where it iscarried on;
(g) his or her date, place and mode of arrival in the State;
(h) the address of his or her dwelling place;25
(i) the address of his or her dwelling place outside the Stateimmediately prior to his or her arrival in the State;
(j) a photograph sufficient to identify him or her;
(k) particulars of his or her travel document;
(l) the details referred to in paragraphs (a) to (j) as they relate30to any of his or her dependants, whether or not suchdependants are resident in the State;
(m) biometric information relating to the foreign nationalsufficient to identify him or her.
(3) A foreign national present in the State shall provide the Mini-35ster or an immigration officer with such information as the Ministeror, as the case may be, that officer, considers necessary to enable thecreation of an accurate entry relating to the foreign national in theRegister of Foreign Nationals or, as the case may be, to maintain theaccuracy of that Register—40
(a) on being so required by the Minister or the immigrationofficer, or
45
Register of foreignnationals.
Application forresidencepermission ofdifferent category.
Residencepermission: factorsto be considered.
(b) whenever a matter arises or event occurs which affects ormight affect the accuracy of that Register relating to theforeign national.
(4) A foreign national who contravenes subsection (3) is guilty ofan offence. 5
(5) Without prejudice to sections 122 and 123, access to the infor-mation contained in the Register of Foreign Nationals shall be con-fined to—
(a) an officer of the Minister,
(b) an immigration officer, and 10
(c) a member of the Garda Síochána,
who requires that information for any purpose under this Act.
37.—(1) The holder of a residence permission of a particular cate-gory which entitles him or her to do so, or who is eligible to do sounder regulations made under section 141, may apply to the Minister 15for a residence permission of a different category.
(2) An application under subsection (1) shall be—
(a) subject to any regulations made under section 57(b), madeby the applicant in person at his or her relevant immi-gration area office, and 20
(b) accompanied by—
(i) the most recently issued and still valid residence per-mit held by the applicant,
(ii) the applicant’s travel document,
(iii) such fee (if any) as may be prescribed, 25
(iv) satisfactory evidence that the applicant continues tofulfil the conditions of his or her residencepermission,
(v) details of the reasons why a residence permission of adifferent category is being sought and the duration 30of the permission being sought, and
(vi) such further information as may be prescribed.
(3) Section 35(4) to (8) shall apply to an application under subsec-tion (1) as they apply to an application for a residence permissionunder that section. 35
38.—When determining an application for the grant or renewal ofa residence permission or for the renewal of a long-term residencepermission under section 47, or deciding whether to modify undersection 41 the conditions of a residence permission, the Minister shallhave regard to all information that appears to the Minister to be 40relevant, whether or not provided by the foreign national concerned,and, in particular, but without prejudice to the generality of the fore-going, to information regarding the following matters:
46
(a) the stated purpose of the proposed entry into or presencein the State;
(b) the intended duration of the stay in the State;
(c) any personal relationships that the foreign national haswith persons in the State and the nationality and immi-5gration status of such persons;
(d) the foreign national’s income, earning capacity and otherfinancial resources;
(e) the financial needs, obligations and responsibilities whichthe foreign national has or is likely to have in the foresee-10able future;
(f) whether in the opinion of the Minister the foreign nationalis likely to comply with any proposed conditions, includ-ing conditions as to duration of stay and engagement inemployment or any business, trade or profession in the15State;
(g) any entitlements of the foreign national to be present inthe State as a national of a member state of the EEA orof the Swiss Confederation, or as a dependant of sucha national;20
(h) any conduct of the foreign national or any member of hisor her family in connection with immigration (whether ornot to the State);
(i) any criminal convictions of the foreign national—
(i) in the State, or25
(ii) outside the State, where the act or omission that con-stituted the offence of which the foreign national wasconvicted, if done or made in the State on the dateon which the application is determined or decisionto modify the conditions is made, would constitute30an offence in the State;
(j) whether in the opinion of the Minister the foreignnational’s presence in the State would be a risk tonational security, public security, public health, or publicorder or would be contrary to public policy (“ordre35public”);
(k) any matters specified in regulations made under section141;
(l) any previous conduct of any person or organisation con-nected with the foreign national’s purpose for being40present in the State that in the opinion of the Ministerindicates that any requirement imposed on the foreignnational in respect of his or her entry into or presence inthe State is unlikely to be complied with.
39.—(1) A foreign national to whom a residence permission,45other than a residence permission that is expressed to be non-renew-able or that is to be treated, under subsection (4), as non-renewable,has been granted shall be entitled to apply for its renewal.
47
Renewal ofresidencepermission.
(2) An application for the renewal of a residence permissionshall be—
(a) subject to subsections (3) and (4) and any regulations madeunder section 57(b), made by the applicant, not later than21 days before the permission expires, in person at his or 5her relevant immigration area office, and
(b) accompanied by—
(i) the most recently issued residence permit held by theapplicant (whether or not it has expired),
(ii) the applicant’s travel document, 10
(iii) such fee (if any) as may be prescribed,
(iv) satisfactory evidence that the applicant continues tosatisfy the stated purpose of his or her residence inthe State and any conditions of the most recentlygranted residence permission granted to him or her, 15
(v) details of the reasons why a renewal is being soughtand the duration of the permission being sought, and
(vi) such further information as may be prescribed.
(3) The Minister is not obliged to consider an application torenew a residence permission that is not made within the time 20required by subsection (2)(a) but, in deciding whether to considersuch an application, shall have regard to any reason given or knownto him or her as to why the application was not made in time.
(4) An application to renew a residence permission which is notmade within 3 months of the end of the duration of the residence 25permission shall be treated as non-renewable for the purposes ofsubsection (1), but the Minister may consider the application wherehe or she is satisfied that the failure to submit the application withinthat 3 month period was attributable to—
(a) a genuine error, oversight or misunderstanding on the part 30of the foreign national concerned, or
(b) exceptional circumstances by virtue of which, through nofault of that foreign national, his or her application couldnot have been made within that period.
(5) The Minister, in making a determination of an application 35under subsection (1), may require the applicant to provide suchfurther information as may be required to—
(a) assist the Minister to consider the matters referred to insubsection (6)(b) and section 38, or
(b) maintain the accuracy of the Register of Foreign 40Nationals.
(6) The Minister shall, subject to section 40, renew a residencepermission where he or she is satisfied—
(a) that the application complies with subsection (2), and
48
(b) that the applicant continues to satisfy the purpose and con-ditions referred to in subsection (2)(b)(iv).
40.—(1) The Minister, on an application under section 39, mayrefuse to renew a renewable residence permission if satisfied that—
(a) the applicant does not continue to satisfy the stated pur-5pose of his or her residence in the State and any con-ditions of the most recently granted residence permissiongranted to him or her,
(b) any of the grounds for the revocation of that permissionreferred to in section 49 apply, or10
(c) the circumstances existing at the time the permission wasgranted have changed and the nature of the change issuch that, had the changed circumstances existed at thattime, the permission would not have been granted.
(2) Where the Minister, under subsection (1), refuses to renew a15renewable residence permission, he or she shall notify in writing theforeign national concerned, in a language that he or she may reason-ably be supposed to understand, of the refusal.
(3) A notification under subsection (2) shall include—
(a) a statement of the reasons for the refusal,20
(b) if it is proposed to make a non-return order under section55 in conjunction with the refusal, a statement of—
(i) that proposal and of the reasons for it, and
(ii) the proposed exclusion period,
(c) where subsection (5) applies, a statement to that effect,25
(d) a statement that the foreign national may, within 5 work-ing days of the notification being received by, or (ifearlier) deemed under section 136 to have been dulygiven to, him or her, make a review application undersection 53, which may include representations in relation30to the proposal to make a non-return order or the pro-posed exclusion period, if applicable,
(e) a statement that, if the foreign national does not make areview application within the period specified in para-graph (d), then he or she is obliged to leave the State35from the date specified in the notification or shall beunlawfully present in the State and may be removed fromthe State in accordance with the provisions of this Act,and
(f) a statement of the effect of sections 6 and 66.40
(4) A refusal shall, subject to subsection (5), take effect—
(a) where no review application is made, from the end of theperiod specified in subsection (3)(d), or
(b) where a review application is made, and the refusal is con-firmed by the review officer, from the date specified in45
49
Non-renewal ofrenewable residencepermission.
Modification ofconditions ofresidencepermission.
the notification issued under section 54 confirming therefusal.
(5) A refusal shall, without prejudice to the right of the foreignnational concerned to have the refusal reviewed, take effect on thedate specified in the notification under subsection (2) where— 5
(a) in the opinion of the Minister, the circumstances surround-ing the refusal are such that, on grounds of nationalsecurity, public security, public order or public policy(“ordre public”), the refusal should take place on thatdate, and 10
(b) a statement to that effect has been included in or withthe notification.
(6) Subject to subsection (7), a foreign national who is the subjectof a refusal is, if present in the State, for all purposes unlawfullypresent in the State— 15
(a) from the date on which the refusal takes effect, or
(b) from the date on which his or her residence permissionexpires, whichever is the later.
(7) A foreign national who has made a review application undersection 53(2) shall, if present in the State, be deemed to be lawfully 20present in the State until the review application has been determinedand notification of the determination has been given, or the notifi-cation is deemed under section 136 to have been duly given, to himor her, notwithstanding that his or her residence permission hasexpired in the meantime. 25
41.—(1) The Minister may—
(a) on an application which complies with section 42(2), or
(b) on his or her own initiative,
modify the conditions of a residence permission.
(2) Where the conditions of a permission referred to in subsection 30(1) are modified under this section, the permission concerned shallbe valid for—
(a) the remainder of the duration of the original permission,or
(b) such other period as the Minister may determine when 35modifying the conditions.
(3) If a permission the subject of an application under section 42or a proposal under section 43 expires before the determination ofthe application or the completion of the procedure under section 43,as the case may be, the permission may continue to have effect, sub- 40ject to any modification made by the Minister, for such period as theMinister may determine, and nothing done or purported to be doneunder section 40 or 45 with respect to that permission shall haveany effect.
50
42.—(1) A foreign national to whom a residence permission hasbeen granted may make an application under section 41(1)(a) unlesshis or her permission—
(a) is expressed to be non-renewable,
(b) is subject to a condition that he or she shall not be entitled5to apply for modification of the conditions of the per-mission, or
(c) will expire within 21 days of the date of the application.
(2) An application under section 41(1)(a) complies with this sub-section if it is—10
(a) made by the applicant at his or her relevant immigrationarea office,
(b) made in the prescribed form (if any), and
(c) accompanied by—
(i) the applicant’s travel document,15
(ii) the most recently issued, and still valid, residence per-mit held by the applicant,
(iii) such fee (if any) as may be prescribed, and
(iv) a statement of the modification being applied for andan explanation of the reasons for the application.20
(3) The Minister, in making a determination of an application,may require the applicant to provide such further information as maybe required to—
(a) assist the Minister in his or her consideration of thematters referred to in section 38, or25
(b) maintain the accuracy of the Register of ForeignNationals.
(4) In exercising powers under section 41(1)(a), the Minister maymake the modification applied for or such other modification as heor she considers appropriate.30
(5) The Minister shall notify the applicant of his or her decisionto modify the conditions of the applicant’s permission, including thereasons for the decision, and the modification shall take effect onthe date specified in the notification.
43.—(1) Where the Minister proposes to modify under section3541(1)(b) the conditions of a residence permission, he or she shallnotify the foreign national concerned in writing, in a language thatthe foreign national may reasonably be supposed to understand, ofthe proposed modification and the date on which it is proposed thatthe modification will take effect.40
(2) A notification under subsection (1) shall include—
(a) a statement of the reasons for the proposal,
51
Application byforeign national formodification ofconditions ofresidencepermission.
Modification ofconditions ofresidencepermission onMinister’s owninitiative.
Residence permit.
(b) a statement that the foreign national concerned may,within 5 working days of the notification being receivedby, or (if earlier) deemed under section 136 to have beenduly given to, him or her, make representations to theMinister as to why the conditions should not be modified 5as proposed,
(c) a statement that if no such representations are made bythe foreign national concerned within the time specifiedin paragraph (b), then, subject to subsection (4), the con-ditions of the residence permission will be modified as 10proposed from the date specified in the notification, and
(d) if it is proposed to apply the provisions of subsection (4),a statement of that proposal.
(3) Subject to subsection (4), the modification of conditions undersection 41(1)(b) shall take effect— 15
(a) where no representations have been made within the timespecified in subsection (2)(b), from the date specified inthe notification under subsection (1), or
(b) where representations have been made within the timespecified in subsection (2)(b), from the date on which the 20Minister advises the foreign national concerned of his orher decision to modify the conditions of the residencepermission concerned.
(4) Subject to subsection (5), a modification of conditions of aresidence permission shall take effect on the date specified in a noti- 25fication under subsection (1) where—
(a) in the opinion of the Minister, the circumstances surround-ing the proposal to modify the conditions of the residencepermission are such that, on grounds of national security,public security, public order or public policy (“ordre 30public”), the proposed modification should take effectimmediately, and
(b) a statement to that effect has been included in or withthe notification.
(5) Where subsection (4) applies, and representations have been 35made within the period specified in subsection (2)(b), the modifi-cation of conditions referred to in subsection (4) shall take effect onthe date of the notification under subsection (1), subject to the Mini-ster’s advising the foreign national under subsection (3)(b) of adecision reversing or further modifying that modification. 40
44.—(1) Where a residence permission is granted or renewed, orthe conditions of a residence permission are modified, in accordancewith this Part, the Minister shall issue or cause to be issued a resi-dence permit to the foreign national concerned.
(2) A residence permit issued under subsection (1) is evidence 45that the holder has permission to reside in the State—
(a) for the time specified in the permit, and
(b) subject to the conditions of the residence permissionconcerned.
52
(3) A residence permit issued under this section shall contain:
(a) the name, date of birth and nationality of the holder;
(b) a photograph sufficient to identify the holder;
(c) a statement of the period for which it is valid;
(d) an indication as to whether the residence permission is5renewable;
(e) an indication of the conditions of the residence permission;
(f) a statement of the category of residence permissionconcerned;
(g) such other information as may be prescribed, including10information relating to the holder.
(4) A residence permit remains the property of the Minister.
(5) A residence permit ceases to be valid, and the person to whomit had been issued shall return it to the Minister without delay,after—15
(a) it expires, if the person’s residence permission is notrenewed in accordance with section 39 or 47, as the casemay be, or
(b) a revocation under section 49(1) or proposal to revoke arenewable residence permission or a long term residence20permission under section 51(1) takes effect.
45.—(1) The Minister may, on an application which complies withsubsection (2), issue a residence permit to replace one that has beenlost, destroyed or damaged, or is otherwise illegible.
(2) An application complies with this subsection if—25
(a) it is made by the holder of the residence permit in personat the holder’s relevant immigration area office,
(b) it is made before the expiration of the residence permit tobe replaced,
(c) where the residence permit to be replaced is damaged or30illegible, it is accompanied by that permit,
(d) in the case of a residence permit which has been lost ordestroyed, it is accompanied by satisfactory evidence toestablish that the permit has been lost or destroyed, and
(e) it is accompanied by—35
(i) the holder’s travel document, and
(ii) such fee (if any) as may be prescribed.
(3) A replacement residence permit issued under subsection (1) isvalid for the remainder of the duration of the residence permit whichit replaces.40
53
Replacement oflost, etc. residencepermit.
Long-termresidencepermission.
46.—(1) Subject to subsection (6), the Minister shall, on an appli-cation which complies with subsection (2), grant permission to residein the State as a long-term resident to a foreign national who meets—
(a) the standard eligibility requirements specified in subsec-tion (4), or 5
(b) (i) the standard eligibility requirements specified in para-graphs (a), (c) and (d) of subsection (4), and
(ii) the eligibility requirements specified in regulationsmade under section 141, where they are more favour-able to the foreign national. 10
(2) Subject to any regulations made under section 57, an appli-cation complies with this subsection if it—
(a) is made to the Minister,
(b) is in the prescribed form (if any), and
(c) is accompanied by— 15
(i) the applicant’s travel document,
(ii) such fee (if any) as may be prescribed, and
(iii) satisfactory evidence that the applicant meets theeligibility requirements specified in paragraph (a) or(b) of subsection (1). 20
(3) A long-term residence permission granted under subsection(1) shall—
(a) subject to paragraph (b), be valid for a period of 5 yearsor such greater period as may be prescribed, and
(b) subject to sections 48 and 51, be renewable. 25
(4) The standard eligibility requirements referred to in subsection(1) are:
(a) that the foreign national’s presence in the State would notbe a risk to national security, public security, publichealth or contrary to public policy (“ordre public”); 30
(b) subject to subsection (5), that the foreign national has beencontinuously resident in the State for a period of 12months immediately before the date of the applicationunder subsection (1) and, during the 5 years immediatelypreceding that period, has had a total period of residence 35in the State amounting to 4 years;
(c) that the foreign national is of good character;
(d) that the foreign national—
(i) is in compliance with his or her obligations in relationto the payment or remittance of any taxes, interest 40or penalties required to be paid or remitted by law,and the delivery of any returns required to be deliv-ered by law,
54
(ii) can demonstrate, in such manner as may be pre-scribed, a reasonable competence for communicatingin the Irish or English language,
(iii) has satisfied the Minister, in such manner as may beprescribed, that he or she has made reasonable5efforts, while resident in the State, to socially inte-grate, and
(iv) has, while resident in the State, supported himself orherself and any dependants without recourse to suchpublicly funded benefits or services as may be10prescribed.
(5) A period of residence in the State shall not be reckonable forthe purposes of subsection (4)(b) if—
(a) it is in accordance with a permission given to the foreignnational to enter or be present in the State for the pur-15pose of enabling him or her to engage in a course of edu-cation, training, apprenticeship or study in the State,
(b) it is a period during which the foreign national was theholder of a protection application entry permit undersection 77 or a temporary residence certificate issued20under section 9(3) of the Refugee Act 1996,
(c) it is a period during which the foreign national was a per-son to whom 114(2) applies,
(d) it is a period during which the foreign national was entitledin the State to privileges and immunities under the Diplo-25matic Relations and Immunities Acts 1967 to 2006,
(e) it is a period in respect of which the foreign national wasgranted permission to enter and be present in the Statefor the purpose of cross-border provision of services orfor another similar short-term purpose,30
(f) it is a period where the foreign national’s residence per-mission was non-renewable or otherwise expressly sub-ject to a condition that the period not be reckonable forthe purposes of this section,
(g) it is a period when the foreign national was imprisoned, or35
(h) it is a period during which the foreign national was unlaw-fully in the State.
(6) The Minister may refuse to grant a long-term residence per-mission under subsection (1) to a foreign national if the Minister isof the opinion that the foreign national’s presence in the State would40be a risk to national security, public security, public health or con-trary to public policy (“ordre public”).
(7) Where a long-term residence permission is granted to aforeign national who meets the standard eligibility requirements or,as the case may be, the eligibility requirements referred to in subsec-45tion (1)(b), the foreign national shall be entitled, for so long as thatpermission remains in force:
(a) subject to section 49(2)—
55
(i) to reside in the State, and
(ii) to the same rights of travel in or to or from the Stateas those to which Irish citizens are entitled, subjectto the requirement under this Act to present himselfor herself to an immigration officer and to provide 5that immigration officer with any information,including a travel document, which the officer mayreasonably require for the purposes of his or herfunctions;
(b) along with his or her qualifying dependants, to enter 10employment and to engage for gain in any business, tradeor profession in the State in the like manner and to thelike extent in all respects as an Irish citizen;
(c) along with his or her qualifying dependants, to receive,upon and subject to the terms and conditions applicable 15to Irish citizens, the same medical care and services andthe same social welfare benefits as those to which Irishcitizens are entitled;
(d) along with his or her qualifying dependants, to have accessto education and training in the State in accordance with 20any relevant enactment or rule of law.
(8) Where the Minister grants a long-term residence permissionto a foreign national, or renews such a permission, he or she shallissue or cause to be issued a long-term residence permit to thatforeign national and sections 44 and 45 shall apply to that long-term 25residence permit as if it were a residence permit.
(9) Notwithstanding section 141, where regulations are proposedto be made for the purposes of subsection (1)(b), a draft thereof shallbe laid before each House of the Oireachtas and the regulations shallnot be made until a resolution approving of the draft has been passed 30by each such House.
(10) In this section—
“dependant” in relation to a foreign national, means—
(a) where the foreign national is married, his or her spouse(provided the marriage is subsisting at the time of the 35grant of permission under subsection (1)), or
(b) a child of the foreign national who, at the date of the grantof permission under subsection (1)—
(i) is under the age of 18 years,
(ii) is not married, 40
(iii) is dependent on the foreign national, and
(iv) has his or her primary place of residence with theforeign national;
“qualifying dependant”, in relation to a foreign national, means aperson who— 45
(a) (i) is a dependant who, at the time of granting of per-mission under subsection (1), is lawfully resident in
56
the State and who, for the purposes of this section,has been granted a residence permission,
(ii) is a dependant who, at the time of granting of per-mission under subsection (1), is resident outside theState and who, for the purposes of this section, has5been granted a residence permission,
(iii) is a child of the foreign national born in the Statefollowing the grant of the permission under subsec-tion (1), or
(iv) is, at the time of granting of permission under subsec-10tion (1)—
(I) lawfully resident in the State,
(II) not a dependant,
but who subsequently becomes a dependant andwho, for the purposes of this section, has been15granted a residence permission,
and
(b) satisfies the Minister that he or she is a person within suchclass of persons as may be prescribed who may beregarded as qualifying dependants under regulations20made under section 141.
47.—(1) The Minister may, on an application which complies withsubsection (2) made by a holder of a long-term residence permissionin person at his or her relevant immigration office, grant a renewalof the permission.25
(2) An application complies with this section if—
(a) subject to subsection (4), it is made not later than 21 daysbefore the permission expires,
(b) subject to any regulations made under section 57, it ismade by the applicant in person at his or her relevant30immigration area office,
(c) it is in the prescribed form (if any), and
(d) it is accompanied by—
(i) the most recently issued long-term residence permitheld by the applicant (whether or not it has expired),35
(ii) the applicant’s travel document,
(iii) such fee (if any) as may be prescribed, and
(iv) sufficient evidence to satisfy the Minister that, duringthe period of validity of the long-term residence per-mission, the applicant has—40
(I) been continuously resident in the State, and
57
Renewal of long-term residencepermission.
Non-renewal oflong-term residencepermission.
Revocation ofpermission.
(II) not been absent from the State for a continuousperiod of 12 months.
(3) The Minister, in considering an application under subsection(1), may require the applicant to provide such further information asmay be required to— 5
(a) assist the Minister in his or her consideration of thematters referred to in section 38, or
(b) maintain the accuracy of the Register of ForeignNationals.
(4) The Minister is not obliged to consider an application to 10renew a long-term residence permission that is not made within theperiod referred to in subsection (2)(a) but, in deciding whether toconsider such an application, shall have regard to any reason givenor known to him or her as to why the application was not madewithin that period. 15
48.—(1) The Minister, on an application under section 47, mayrefuse to renew a long-term residence permission if, but only if, oneor more of the grounds for revocation of that permission specifiedin section 49(2) applies.
(2) Where under subsection (1), the Minister proposes to refuse 20to renew a long-term residence permission granted to a foreignnational, then—
(a) sections 51 and 52 shall apply as if the Minister were pro-posing to revoke that permission, except that anydecision of the Minister under section 52 that would be a 25decision not to revoke should be deemed to be a renewalof the long-term residence permission concerned, and
(b) the foreign national shall, subject to section 51(5), ifpresent in the State, be deemed to be lawfully present inthe State until the Minister’s decision has effect in accord- 30ance with section 51(3), notwithstanding that his or herlong-term residence permission has expired in themeantime.
49.—(1) The Minister may revoke an entry permission, or a resi-dence permission if satisfied that— 35
(a) the foreign national has contravened a condition of his orher residence permission or entry permission,
(b) the foreign national, since the grant of the permission, hasserved or is serving a term of imprisonment imposed inthe State, 40
(c) there are reasonable grounds for regarding the foreignnational as a danger to the security of the State,
(d) the presence in the State of the foreign national would notbe conducive to the common good,
58
(e) the foreign national obtained his or her permission on thebasis of information or documentation which was false,incomplete or otherwise misleading,
(f) the permission was granted in error, or
(g) there are other reasons which justify the revocation of5the permission.
(2) The Minister may revoke a long-term residence permission if,but only if, satisfied that the foreign national—
(a) obtained his or her permission on the basis of informationor documentation which was false, incomplete or other-10wise misleading,
(b) at any time during the currency of that permission, wasnot continuously resident in the State for a period of 12consecutive months,
(c) constitutes a danger to the community of the State, having15been convicted of an offence by a final judgment, or
(d) constitutes a serious risk to national security, public secur-ity or public order, or that the continued presence in theState of the foreign national would be contrary to publicpolicy (“ordre public”).20
50.—(1) Where the Minister revokes an entry permission or anon-renewable residence permission under section 49(1), he or sheshall notify in writing the foreign national concerned, in a languagethat he or she may reasonably be supposed to understand, of therevocation.25
(2) A notification under subsection (1) shall include—
(a) a statement of the reasons for the revocation,
(b) if it is proposed to make a non-return order under section55 in conjunction with the revocation, a statement of—
(i) that proposal and the reasons for it, and30
(ii) the proposed exclusion period,
(c) a statement that the foreign national concerned may,within 5 working days of the notification being receivedby, or (if earlier) deemed under section 136 to have beenduly given to, him or her, make a review application35under section 53, which may include representations inrelation to the proposal to make a non-return order orthe proposed exclusion period, if applicable,
(d) a statement that if the foreign national concerned does notmake a review application within the time specified in40paragraph (c), then he or she is unlawfully present in theState and is obliged to leave the State by the date speci-fied in the notification and may be removed from theState in accordance with the provisions of this Act, and
59
Procedure forrevocation of entrypermission or non-renewable residencepermission.
Proposal to revokerenewable residencepermission or long-term residencepermission.
(e) a statement of the effect of subsection (4) (if it is proposedto apply the provisions of that subsection), and of sections6 and 66.
(3) A revocation shall take effect—
(a) where no review application is made, from the date speci- 5fied in the notification under subsection (1), or
(b) subject to subsection (4), where a review application ismade, and the revocation is confirmed by the reviewofficer, from the date specified in the notification issuedunder section 54, confirming the revocation. 10
(4) A revocation shall, without prejudice to the right of theforeign national concerned to have the revocation reviewed, takeeffect on the date specified in a notification under subsection (1)where—
(a) in the opinion of the Minister, the circumstances surround- 15ing the revocation are such that, on grounds of nationalsecurity, public security, public order or public policy(“ordre public”), the revocation should take effect onthat date, and
(b) a statement to that effect has been included in or with 20the notification.
(5) Subject to subsection (4), a foreign national who has made areview application under section 53 shall, if present in the State, bedeemed to be lawfully present in the State until the review has beendetermined and notified or the notification is deemed under section 25136 to have been duly given to the foreign national, notwithstandingthat his or her entry permission or residence permission has expiredin the meantime.
51.—(1) Where the Minister proposes to revoke, under section49(1) or (2), a renewable residence permission or a long-term resi- 30dence permission, he or she shall notify, in writing, the foreignnational concerned, in a language that he or she may reasonably besupposed to understand, of his or her proposal.
(2) A notification under subsection (1) shall include—
(a) a statement of the reasons for the proposed revocation, 35
(b) if it is proposed to make a non-return order under section55 in conjunction with the proposed revocation, a state-ment of—
(i) that proposal and the reasons for it, and
(ii) the proposed exclusion period, 40
(c) a statement that the foreign national concerned may,within 15 working days of the sending of the notification,make representations to the Minister as to why the resi-dence permission should not be revoked, which mayinclude representations in relation to the proposal to 45make a non-return order or the proposed exclusionperiod, if applicable,
60
(d) a statement that if the foreign national concerned does notmake representations within the time specified in para-graph (c), then he or she is obliged to leave the State bythe date specified in the notification or shall be unlaw-fully present in the State and may be removed from the5State in accordance with the provisions of this Act, and
(e) a statement of the effect of subsection (5) (if it is proposedto apply the provisions of that subsection) and of sections6 and 66.
(3) (a) Subject to paragraph (b) and subsections (4) and (5), a10proposal to revoke a permission under this section shalltake effect—
(i) where no representations are made under section 52,from the date specified in the notification under sub-section (1), or15
(ii) where representations are made under section 52, anda determination to revoke the permission is madeunder that section, from the date specified in thenotification issued under that section of such deter-mination.20
(b) Where the foreign national concerned has been lawfullyresident in the State for a continuous period of 5 years,the proposal referred to in paragraph (a) shall take effectnot earlier than 3 months from the date of the sending ofthe notification referred to in subparagraph (i) or (ii), as25the case may be, of that paragraph to the foreignnational concerned.
(4) If the foreign national concerned leaves the State before aproposal under subsection (1) takes effect, and provides the Ministerwith evidence to that effect sufficient to satisfy the Minister, the30Minister may revoke the permission concerned and either—
(a) make no non-return order, or
(b) make a non-return order the exclusion period of whichshall be not longer than the proposed exclusion periodspecified in the notification under subsection (1).35
(5) A revocation shall, without prejudice to the right of theforeign national concerned to make representations under section 52,take effect on the date specified in the notification under subsection(1) where—
(a) in the opinion of the Minister, the circumstances surround-40ing the revocation are such that, on grounds of nationalsecurity, public security, public order or public policy(“ordre public”), the revocation should take effect onthat date, and
(b) a statement to that effect has been included in or with45the notification.
(6) Subject to subsection (5), a foreign national who has maderepresentations under section 52 shall, if present in the State, bedeemed to be lawfully present in the State until those representationshave been considered under that section and the Minister’s determi-50nation notified, or the notification is deemed under section 136 to
61
Procedure forrevocation ofrenewable residencepermission or long-term residencepermission.
have been duly given to the foreign national, notwithstanding thathis or her residence permission or long-term residence permissionhas expired in the meantime.
52.—(1) A foreign national who is the subject of a proposal undersection 51(1) may make representations to the Minister in respect of 5that proposal.
(2) Representations under this section shall—
(a) be made by the person who is the subject of the proposal,
(b) be made within 15 working days of the sending of the noti-fication under section 51(1), 10
(c) be made to the Minister,
(d) be in the prescribed form (if any), and
(e) include or be accompanied by a statement of the groundsupon which the representations are based and such infor-mation and documentary evidence as the foreign national 15concerned proposes to use in support of his or her rep-resentations.
(3) In determining whether to revoke a renewable residence per-mission under section 49(1) in accordance with this section, the Mini-ster shall have regard to all the information that appears to him or 20her to be relevant, including all representations duly made to him orher, and in doing so shall have regard to the following matters:
(a) humanitarian considerations;
(b) the common good; and
(c) considerations of national security, public security, public 25order and public policy (“ordre public”).
(4) In determining whether to revoke a long-term residence per-mission under section 49(2) in accordance with this section, the Mini-ster shall have regard to the matters specified in that section and insubsection (3) and, in relation to the foreign national concerned, to— 30
(a) his or her age,
(b) the duration of his or her residence in the State,
(c) his or her family and domestic circumstances,
(d) the nature of his or her connection with the State, if any,
(e) his or her employment (including self-employment) 35record,
(f) his or her employment (including self-employment)prospects,
62
(g) his or her character and conduct both within and outsidethe State, and
(h) any criminal conviction of the foreign national and, inparticular any criminal conviction—
(i) in the State, or5
(ii) outside the State, where the act or omission that con-stituted the offence of which the foreign national wasconvicted, if done or made in the State on the dateon which the determination is made, would consti-tute an offence in the State.10
(5) The Minister is not obliged to consider any representationsnot duly made in accordance with subsection (2) but, in exercisingdiscretion whether to consider such representations, shall haveregard to any reason given or known to him or her why the represen-tations were not made in accordance with that subsection.15
(6) The Minister, having considered the matters specified in sub-section (3) and, if applicable, subsection (4), shall determine whetherto revoke the permission concerned and, having done so, shall notifythe foreign national, in writing, in a language that he or she mayreasonably be supposed to understand, of his or her determination.20
(7) A notification under subsection (6) shall, if the residence per-mission is to be revoked, include—
(a) a statement of the reasons for that determination,
(b) if it has been decided to make a non-return order undersection 55 in conjunction with the revocation of the resi-25dence permission, a statement of that decision and thereasons for it, and of the exclusion period,
(c) a statement that the foreign national is obliged to leavethe State by the date specified in the notification or shallbe unlawfully present in the State and may be removed30from the State in accordance with the provisions of thisAct, and
(d) a statement of the effect of sections 6 and 66.
53.—(1) In this section and section 54, “decision” means a refusalunder section 40 or a revocation under section 49(1), and may include35a non-return order made in conjunction with such a refusal orrevocation.
(2) A foreign national who is the subject of a decision may applyto the Minister for a review of the decision.
(3) On receipt of an application which complies with subsection40(4) the Minister shall arrange for a review.
(4) A review application complies with this subsection if it—
(a) is made by the foreign national who is the subject of thedecision,
63
Review application.
Determination ofreview.
(b) is made within 5 working days of the notification referredto in section 40(2) or 50(1), as the case may be, beingreceived by, or (if earlier) deemed under section 136 tohave been duly given to, the foreign national concerned,
(c) is made to the Minister, 5
(d) is made in the prescribed form (if any),
(e) is accompanied by the prescribed fee (if any), and
(f) includes or is accompanied by a statement of the groundsupon which the review is sought and such informationand documentary evidence as the applicant proposes to 10use in support of the application.
(5) A review shall be carried out by a review officer who shall bean officer of the Minister—
(a) who is not the person who made the decision, and
(b) who is— 15
(i) of a grade senior to the grade of the person who madethe decision, or
(ii) if it would be impracticable for that officer to be aperson of such a grade, is of the same grade as thegrade of the person who made the decision. 20
(6) The review officer may, before determining a review, make orcause to be made such inquiries as he or she considers appropriate.
(7) In determining a review under this section, the review officershall have regard to all information that appears to the review officerto be relevant, whether or not provided by the applicant. 25
54.—(1) A review officer shall, on carrying out a review undersection 53, either—
(a) confirm the decision, or
(b) set it aside.
(2) A confirmation under subsection (1)(a) may be on the same 30grounds as the decision or on other grounds (or partly on the samegrounds, and partly on other grounds) and, where it is (or is partly)on other grounds, those other grounds shall be substituted for oradded to the grounds of the decision.
(3) Where, under subsection (1)(a), the review officer confirms a 35decision, the Minister shall notify the applicant in writing of the con-firmation.
(4) A notification under subsection (3) shall include—
(a) a statement of the reasons for the confirmation,
64
(b) if it has been decided to make a non-return order undersection 55 in conjunction with the decision, a statementof that fact, the reasons for it, and the proposedexclusion period,
(c) a statement that the applicant is obliged to leave the State5by the date specified in the notification or shall be unlaw-fully present in the State and may be removed in accord-ance with the provisions of this Act, and
(d) a statement of the effect of sections 6 and 66.
(5) Where a review officer sets aside a decision made under10section 40, the residence permission concerned shall be renewable inaccordance with section 39.
(6) Where a review officer sets aside a decision made undersection 49(1), the revocation concerned shall not proceed.
55.—(1) The Minister may—15
(a) when refusing to renew a residence permission undersection 40,
(b) when revoking an entry permission or residence per-mission under section 49,
(c) on or after the expiration of a permission referred to in20paragraph (b), or a protection application entrypermission,
(d) when issuing a notice referred to in section 82(3)(c),90(7)(c) or 95(7)(e), or
(e) when revoking a protection declaration under section 111,25
make a non-return order under this section requiring the foreignnational concerned, having left (including having been removedfrom) the State in consequence of the non-renewal, revocation,expiration, withdrawal, deemed withdrawal or finding of inadmissi-bility, as the case may be, to remain outside the State for such30exclusion period as is specified in the non-return order.
(2) In deciding whether to make a non-return order under subsec-tion (1), the Minister shall have regard to any representations on theproposal to make the non-return order or on the proposed exclusionperiod, submitted by the foreign national concerned under section3551, 52 or 112.
(3) A non-return order shall be in the prescribed form.
(4) An exclusion period shall begin on the date specified in thenon-return order and may end on the date specified in it, or may beof indefinite duration.40
(5) Where the Minister has—
(a) under section 50(2), notified the a foreign national towhom an entry permission or a non-renewable residencepermission has been granted of his or her proposal tomake a non-return order,45
65
Non-return orders.
Immigrationofficers’ powersunder this Part.
(b) under section 40(3), 51(2), 52(7) or 112(2), notified theholder of a residence permission, a protection applicationentry permission or a protection declaration of his or herproposal to make a non-return order, or
(c) under section 82(3), 90(7) or 95(7), notified the holder of 5a protection application entry permit of his or her makingof a non-return order,
the exclusion period specified in the non-return order made by theMinister shall not exceed the exclusion period or, as the case maybe, the proposed exclusion period specified in such notification. 10
(6) Nothing in subsection (5) shall affect the Minister’s discretionto make either no non-return order or a non-return order of a shorterexclusion period where the circumstances mentioned in section51(4) apply.
(7) Nothing in this section shall affect the Minister’s discretion, 15whether on application by the foreign national concerned or other-wise, to revoke a non-return order or to vary it by reducing theexclusion period.
(8) A person who contravenes a non-return order is guilty of anoffence. 20
56.—(1) An immigration officer, subject to subsection (2) and inaccordance with this Act, any regulations made under it and anydirections the Minister may give under section 143, may, on behalfof the Minister—
(a) grant residence permissions under this Part, 25
(b) attach conditions to residence permissions under this Part,
(c) renew or refuse to renew residence permissions undersection 39 or 40,
(d) modify conditions attached to residence permissions undersection 41(1)(a), and 30
(e) issue replacement residence permits under section 45.
(2) An immigration officer, for the purpose of the performanceof his or her functions under subsection (1), may require the appli-cant to provide such further information as may be required to—
(a) assist the Minister in his or her consideration of the 35matters referred to in section 38, or
(b) maintain the accuracy of the Register of ForeignNationals.
(3) The Minister may prescribe categories of residence per-missions in respect of which, or a class or classes of foreign nationals 40in respect of whom, subsection (1), or any part of that subsection,shall not apply.
66
57.—The Minister may, for the purposes of this Part, prescribe—
(a) procedures and forms for any application provided forunder this Part,
(b) circumstances where applications, or applications of categ-ories prescribed for that purpose, required under this5Part to be made at a foreign national’s relevant immi-gration area office, may be made otherwise than inaccordance with that requirement, and the places andprocedures for making such applications.
PART 610
Removal from the State
58.—(1) A foreign national being removed from the State underthis Act shall not be sent to a territory if to do so would be arefoulement.
(2) Nothing in this Act prevents the extradition of a foreign15national under the Extradition Acts 1965 to 2001 or the operation ofthe European Arrest Warrant Act 2003.
59.—(1) Where an immigration officer or a member of the GardaSíochána is satisfied that a foreign national is unlawfully present inthe State or at a frontier of the State, the officer or member may20remove, or cause to be removed, the foreign national from the State.
(2) A foreign national who is removed under subsection (1) shallbe sent to whichever of the following states or territories the officeror member removing him or her considers appropriate:
(a) the state where he or she last embarked for the State, if25that state can be ascertained;
(b) where he or she was refused permission to enter the Stateat a port for the purpose of passing through the port inorder to travel to another state, and either—
(i) the carrier who would have taken him or her to that30other state has refused to do so, or
(ii) the government of that other state has refused him orher entry into that state and, in consequence, he orshe remains in the State or has been returned tothe State,35
the state where he or she last embarked for the State forthe purpose referred to in this paragraph;
(c) the state or territory, the government or other authoritiesof which issued any travel document held by him or her;
(d) the state or territory which appears to the officer or40member to be the country of origin of that foreignnational; or
67
Regulations.
Rule againstrefoulement.
Removal from Stateof foreign nationalunlawfully present.
(e) any state which he or she will, in the opinion of the officeror member, be permitted to enter.
(3) A foreign national being removed under this section—
(a) shall, for the purposes of facilitating his or her removal,co-operate in any way necessary and comply with any 5directions given to him or her to enable an immigrationofficer or member of the Garda Síochána to obtain atravel document, ticket for travel or other documentrequired for the purpose of the removal and, in part-icular, shall comply with any request by the officer or 10member to provide biometric information for or forinclusion in, or to sign or affix his or her biometric infor-mation to, any document required for that purpose, and
(b) shall not behave in a manner likely to endanger the safetyof himself or herself or others in the course of his or her 15being removed from the State.
(4) A person shall not, by act or omission, obstruct or hinder animmigration officer or a member of the Garda Síochána engaged inthe removal of a foreign national under this section.
(5) A parent or guardian of, or other person or body having 20charge of or responsibility for, a person who is under the age of 18years (in this subsection referred to as a “minor”) and who is beingremoved from the State under subsection (1) shall, for the purposesof facilitating the removal of the minor—
(a) on request by an immigration officer or member of the 25Garda Síochána, use his or her best endeavours to bringthe minor to or secure the attendance of the minor atsuch place as is specified in the request, and
(b) co-operate in any way necessary and comply with anydirections given to him or her to enable such an officer 30or member to obtain a travel document, ticket for travelor other document required for the purpose of theremoval of the minor and, in particular, comply with anyrequest by the officer or member to have the minor’s bio-metric information provided for or for inclusion in, or to 35have signed by the minor or have the minor’s biometricinformation affixed to, any document required for thatpurpose.
(6) A person or body who contravenes subsection (3), (4) or (5)is guilty of an offence. 40
(7) An immigration officer or a member of the Garda Síochánamay arrest without warrant any person whom he or she suspects ofhaving committed an offence under this section.
(8) Without prejudice to section 27(6), 55 or 132, but subject tosubsection (9), a foreign national removed under this section shall be 45ineligible for an entry permission for a period of 6 months from thedate of his or her removal.
(9) The Minister may, on application by the foreign nationalreferred to in subsection (8) and having regard to the matters speci-fied in section 141(4), where he or she considers it appropriate to do 50so in exceptional circumstances, direct that all, or such part as is
68
specified in the direction, of the period of 6 months referred to inthat subsection shall be disregarded for the purposes of an appli-cation by the foreign national for a visa or for an entry permission.
60.—(1) An immigration officer or a member of the Garda Síoch-ána may, for the purposes of removing a foreign national from the5State under section 59, arrest the foreign national without warrantwhere—
(a) the foreign national has been refused an entry permissionunder section 29,
(b) the officer or member, with reasonable cause, suspects that10the foreign national—
(i) has failed to comply with any notification under thisAct to the effect that he or she must leave the Stateby a specified date,
(ii) intends to leave the State and enter another state15without lawful authority,
(iii) has destroyed his or her identity documents or is inpossession of forged, altered or substituted identitydocuments, or
(iv) intends to avoid removal from the State,20
or
(c) section 61(4), 62(2) or 64(5) applies to the foreign national.
(2) A foreign national arrested under subsection (1) may, underwarrant of an immigration officer or a member of the Garda Síoch-ána, be detained—25
(a) in a prescribed place, being a prison or other place in thecharge of a governor, an immigration officer or a memberof the Garda Síochána, and
(b) in the custody there of the governor, the immigrationofficer or the member in charge.30
(3) (a) The officer or member under whose warrant a foreignnational is detained under subsection (2) shall, as soonas practicable—
(i) where the foreign national is detained in a GardaSíochána station, inform the member in charge,35
(ii) in any other case, inform the governor, or the immi-gration officer in charge,
of the arrest and detention.
(b) Where paragraph (a) has been complied with, the con-tinued detention under this section of a foreign national40referred to in that paragraph is authorised.
(4) A foreign national detained under subsection (2) or (3) may,on the direction of an immigration officer or a member of the Garda
69
Arrest anddetention of foreignnational for purposeof removal fromState.
Síochána, be moved from the prescribed place where the foreignnational is—
(a) to any other prescribed place, or
(b) for the purposes of, or a purpose connected with, his orher removal from the State under section 59, to any 5other place,
without thereby affecting the lawfulness of the custody in which heor she is being kept.
(5) Subject to subsection (6), a foreign national detained underthis section may not be detained for a period or periods, in relation 10to any one removal or attempted removal, exceeding 8 weeks inaggregate.
(6) The following shall be excluded in reckoning any period forthe purposes of subsection (5):
(a) any period during which the foreign national is in custody 15pending a criminal trial or is serving a sentence ofimprisonment;
(b) any period during which he or she is on board a vehiclehaving been placed there under section 65;
(c) any period of delay in his or her removal which is directly 20attributable to a contravention of subsection (3), (4) or(5) of section 59;
(d) if the foreign national has taken or is otherwise party toproceedings in respect of his or her removal, the periodbetween their institution and their final determination; 25
(e) where the High Court has made an order under subsection(8)(b), the period specified in the order for which theforeign national’s removal from the State is to besuspended.
(7) Proceedings shall not, for the purposes of subsection (6)(d), 30be taken to be finally determined until the expiration of the timewithin which an appeal from those proceedings or, as the case maybe, a further appeal, may be instituted and no appeal or furtherappeal has been instituted.
(8) Where a foreign national detained under this section is a party 35to any proceedings, whether civil or criminal, or required or likely tobe required to attend as a witness in any such proceedings, the HighCourt may, on application to it and on being satisfied that it is, forthe purposes of the proceedings, in the interests of justice to do so,order, for such period as the Court considers appropriate, either or 40both of the following:
(a) that the foreign national be released from detention;
(b) that the foreign national’s removal from the State besuspended.
(9) In making an order under subsection (8)(a), the High Court 45may make the release subject to conditions, including conditionsrequiring the foreign national to—
70
(a) reside or remain in a specified district or place in the State,
(b) report at specified intervals to a specified Garda Síochánastation or immigration area office,
(c) surrender any travel document that he or she holds,
(d) enter into a recognisance, with or without a surety or sur-5eties, subject to such conditions as the Court considersappropriate.
(10) (a) Where a foreign national enters into a recognisance undersubsection (9)(d) and fails to comply with any conditionto which the recognisance was subject, the High Court10may, on the application of an immigration officer ormember of the Garda Síochána and on information onoath and in writing made by or on behalf of the officeror member that the foreign national has contravened acondition of the recognisance, issue a warrant for the15arrest of the foreign national.
(b) An immigration officer or member of the Garda Síochánamay arrest the foreign national referred to in paragraph(a) notwithstanding that the officer or member does nothave the warrant concerned in his or her possession at20the time of the arrest.
(c) Where paragraph (b) applies, the officer or member shallserve the warrant on the arrested foreign national as soonas practicable.
(d) The arrested foreign national shall be brought as soon as25practicable before the High Court.
(e) Where a foreign national is brought before the Court inaccordance with paragraph (d), and the Court is satisfiedthat the foreign national has contravened a condition ofthe recognisance, the Court may order that—30
(i) any moneys conditioned to be paid under the recogni-sance by the foreign national or any surety beestreated in such amount and within such period asthe Court thinks fit, or
(ii) any sums paid into court by the foreign national or35any surety be forfeited in such amount or amountsas the Court thinks fit.
(11) In considering whether to make an order under subsection(8) and whether and how to exercise the power to impose conditionsunder subsection (9), the High Court shall have regard to whether40the foreign national would, if released, be likely to attempt to avoidremoval from the State under section 59.
(12) In any criminal proceedings brought against a foreignnational detained under subsection (2) or (3), the Director of PublicProsecutions shall, as soon as practicable, inform the court that the45accused is a foreign national so detained, and the court may, in con-sidering any question about bail in respect of the accused, haveregard to that information.
71
Imposition ofconditions uponforeign nationalarrested undersection 60.
Imposition ofconditions uponforeign nationalunlawfully presentin the State.
(13) In this section, “member in charge” means the member ofthe Garda Síochána who is in charge of a Garda Síochána station inwhich a foreign national is detained under subsection (2).
61.—(1) An immigration officer or member of the Garda Síoch-ána who arrests a foreign national under section 60(1) may, without 5prejudice to the power to detain the foreign national under thatsection, require the foreign national, by direction in writing andpending his or her removal from the State, to comply with any oneor more of the following conditions:
(a) that he or she reside or remain in a specified district or 10place in the State;
(b) that he or she report at specified intervals to a specifiedGarda Síochána station or immigration area office;
(c) that he or she surrender any travel document that he orshe holds; 15
(d) that he or she provide a deposit;
(e) that he or she enter into a bond, whether or not securedby a guarantee.
(2) A foreign national who fails to comply with a conditionimposed upon him or her under subsection (1) is guilty of an offence. 20
(3) Subsection (2) shall not apply where the failure by the foreignnational to comply with a condition is attributable to his or her leav-ing or having left the State and where he or she has not re-enteredthe State other than in compliance with the provisions of this Act.
(4) Where a condition is imposed upon a foreign national under 25subsection (1), an immigration officer or member of the Garda Síoch-ána may arrest and detain the foreign national under section 60(1)where—
(a) the foreign national has failed to comply with the con-dition, or 30
(b) the officer or member is satisfied that, notwithstanding theexercise of the power under subsection (1), he or she hasreasonable cause to suspect that subparagraph (ii), (iii)or (iv) of section 60(1)(b) applies or continues to applyto the foreign national concerned. 35
62.—(1) An immigration officer or member of the Garda Síoch-ána may, without prejudice to sections 60 and 61, require a foreignnational who is unlawfully present in the State, by direction in writ-ing, to comply with any one or more of the following conditions:
(a) that he or she, in accordance with his or her obligations 40under section 6—
(i) remove himself or herself from the State by the datespecified in the notification, and
(ii) not re-enter the State other than in compliance withthe provisions of this Act; 45
72
(b) that he or she reside or remain in a specified district orplace in the State;
(c) that he or she report at specified intervals to a specifiedGarda Síochána station or immigration area office;
(d) that he or she surrender any travel document that he or5she holds;
(e) that he or she provide a deposit;
(f) that he or she enter into a bond, whether or not securedby guarantee.
(2) Where a condition is imposed upon a foreign national under10subsection (1), an immigration officer or member of the Garda Síoch-ána may arrest and detain the foreign national under section 60(1),where—
(a) the foreign national has failed to comply with the con-dition, or15
(b) the officer or member is satisfied that, notwithstanding theexercise of the power under subsection (1), he or she hasreasonable cause to suspect that subparagraph (ii), (iii)or (iv) of section 60(1)(b) applies or continues to applyto the foreign national concerned.20
(3) A foreign national who fails to comply with a conditionimposed upon him or her under subsection (1) is guilty of an offence.
63.—(1) Nothing in this Act confers an entitlement on a foreignnational—
(a) who is arrested under section 60 to be dealt with according25to one of the procedures specified in section 60 or section61(1) rather than another such procedure, or
(b) who is unlawfully present in the State and who is liable tobe arrested under section 60, instead of being arrestedunder that section, to be dealt with under section 62.30
(2) Nothing in section 61 or 62 shall operate to prevent a foreignnational to whom either of those sections applies from beingrequired, at any time after the giving of the direction concerned, toprovide details of his or her arrangements for leaving the State.
(3) Where it appears to the Minister that a foreign national who35is to be or is being removed under section 59 has no travel document,the Minister may issue to the foreign national a laissez-passer or suchother travel document as the Minister considers appropriate to facili-tate such removal.
64.—(1) Subject to subsections (2) and (5), section 60 does not40apply to a foreign national who is under 18 years of age.
(2) If, and for so long as, an immigration officer or member ofthe Garda Síochána who has the custody of a foreign nationalbelieves and has reasonable grounds for believing that the foreignnational is 18 years of age or over, section 60 shall apply to the45foreign national.
73
Provisionssupplementary tosections 60, 61 and62.
Persons under 18years of age.
Responsibilities ofcarriers in relationto removal offoreign nationalsfrom State.
(3) Where an unmarried person under the age of 18 years is inthe custody of another person (whether his or her parent or a personacting in loco parentis or any other person) and that other person isdetained under section 60, the immigration officer or the member ofthe Garda Síochána concerned shall, without delay, notify the Health 5Service Executive of the detention and of the circumstances thereof.
(4) An immigration officer or member of the Garda Síochánamay, by direction in writing given to a foreign national under the ageof 18 years, require that foreign national to comply with any of theconditions specified in section 61(1)(a) to (c) or 62(1)(a) to (d). 10
(5) Where a foreign national fails to comply with a conditionimposed upon him or her under subsection (4), an immigrationofficer or member of the Garda Síochána may arrest and detain thatforeign national under section 60(1).
65.—(1) An immigration officer or member of the Garda Síoch- 15ána may place a foreign national to whom section 59 applies on avehicle that is about to leave the State, and a foreign national soplaced who has been detained under section 60 shall continue to bein lawful custody until the vehicle leaves the State.
(2) The master or person in charge of a vehicle that is about to 20leave the State shall, if so directed by an immigration officer ormember of the Garda Síochána, receive a foreign national to whomsection 59 applies (and any dependants of the foreign national) onboard the vehicle and afford the persons so received proper accom-modation and maintenance during the journey concerned. 25
(3) A direction under subsection (2) may be given only at areasonable time before the departure of the vehicle referred to inthat subsection.
(4) Where a foreign national to whom section 59 applies arrivedin the State by means of a vehicle, the master or person in charge of 30the vehicle shall, if so directed in writing by an immigration officer ormember of the Garda Síochána, remove the foreign national withoutdelay, and at no expense to the State, from the State to whicheverof the states or territories referred to in section 59(2) the officer ormember considers appropriate. 35
(5) A direction under subsection (4) may require the person towhom it is given to remove the foreign national referred to in it orrequire the person to arrange for the removal of the foreign nationalby another carrier.
(6) If a person fails to comply with a direction under subsection 40(4), the officer or member who gave the direction may arrange forthe removal of the foreign national referred to in the direction.
(7) The Minister shall pay the reasonable expenses incurred incomplying with a direction under subsection (2) but no other liabilityshall attach to the Minister or any immigration officer or member of 45the Garda Síochána for any cost or expense incurred in complyingwith any other direction under this section.
(8) Amounts may, for the purposes of subsection (7), be pre-scribed in relation to the receiving, accommodation and maintenanceof a foreign national under subsection (2) and any amount so pre- 50scribed shall be taken, for the purposes of subsection (7), as a reason-able expense.
74
(9) The costs incurred under subsection (6) shall be recoverableas a simple contract debt by the Minister from the person to whomthe direction was given under subsection (4).
(10) A person who fails to comply with a direction under subsec-tion (4) is guilty of an offence.5
(11) A member of the Garda Síochána may arrest without war-rant any person whom he or she suspects of having committed anoffence under subsection (10).
66.—(1) The Minister may require a foreign national removedfrom the State under this Part to pay him or her the reasonable10expenses incurred in the foreign national’s detention, accom-modation, maintenance while being detained and removed, andremoval.
(2) (a) Subject to paragraph (b), subsection (1) does not apply inrespect of a minor.15
(b) The Minister may require a person who—
(i) has or has had parental custody or has or had other-wise taken responsibility for the minor, and
(ii) is removed from the State along with the minor,
to pay to the Minister the reasonable expenses incurred20in that minor’s detention, accommodation, maintenancewhile being detained and removed, and removal.
(3) Where more than one person is liable under subsection (2)(b),the liability shall be joint and several.
(4) Maximum amounts may be prescribed in respect of different25kinds of circumstances giving rise to expenses payable under subsec-tions (1) and (2).
(5) In prescribing maximum amounts under subsection (4), theMinister shall have regard to the actual costs usually incurred in thecircumstances to which those amounts relate.30
(6) Without prejudice to the generality of subsection (4), thedifferent kinds of expenses for which maximum amounts may beprescribed under that subsection may include the following:
(a) the costs over a particular period of time of detaining aforeign national in accordance with section 60(2) and35maintaining him or her while in such detention;
(b) the costs of moving a foreign national in accordance withsection 60(4), including the costs of maintaining him orher while in custody during the move;
(c) the costs of removing a foreign national from the State to40a state or territory in accordance with section 59, includ-ing the costs of maintaining him or her while in custodyuntil he or she leaves the State.
(7) The Minister shall notify a foreign national in writing of theamount of expenses to be paid by the foreign national under this45
75
Liability for costs ofremoval.
Interpretation(Part 7).
section, but failure to so notify does not affect the obligation undersubsection (1) to pay those expenses.
(8) Any costs, or any part thereof, incurred by the Minister undersubsection (1) may be recovered from the foreign national concernedas a simple contract debt in any court of competent jurisdiction. 5
(9) The relevant period of limitation under the Statutes of Limi-tations in relation to a debt referred to in subsection (8) shall notbegin to run until the Minister becomes aware of the return to andpresence in the State of the foreign national.
(10) In this section— 10
“minor” means a foreign national who is under the age of 18 years;
“reasonable expenses”, for the purposes of subsection (1) includesunrecovered costs awarded by a court to the Minister in proceedingsin respect of the lawfulness of the detention and removal from theState of the foreign national. 15
PART 7
Protection
Chapter 1
General
67.—(1) In this Part— 20
“act of persecution” shall be construed in accordance with section 71;
“actors of persecution” include—
(a) a state,
(b) parties or organisations controlling a state or a substantialpart of the territory of that state, and 25
(c) non-state actors if it can be demonstrated that the actorsreferred to in paragraphs (a) and (b), including inter-national organisations, are unable or unwilling to provideprotection against persecution;
“actors of serious harm” include— 30
(a) a state,
(b) parties or organisations controlling a state or a substantialpart of the territory of that state, and
(c) non-state actors, if it can be demonstrated that the actorsreferred to in paragraphs (a) and (b), including inter- 35national organisations, are unable or unwilling to provideprotection against serious harm;
“person eligible for subsidiary protection” means a person—
(a) who is not a national of a Member State,
76
(b) who is not entitled to protection in the State as a refugee,
(c) in respect of whom substantial grounds have been shownfor believing that the person concerned, if returned to hisor her country of origin, or, in the case of a stateless per-son, to his or her country of former habitual residence,5would face a real risk of suffering serious harm, and whois unable, or, owing to such risk, is unwilling to avail him-self or herself of the protection of that country, construedin accordance with subsections (2) and (3), and
(d) to whom section 73 does not apply;10
“refugee” means a person—
(a) who, without prejudice to the Protocol on Asylum fornationals of Member States of the European Union,annexed to the Treaty on European Union and to theTreaty on the Functioning of the European Union, is not15a national of a Member State,
(b) who, owing to a well-founded fear of being persecuted forreasons of race, religion, nationality, membership of aparticular social group or political opinion—
(i) is outside the country of his or her nationality and is20unable or, owing to such fear, is unwilling to availhimself or herself of the protection of that country,construed in accordance with subsections (2) and(3), or
(ii) if a stateless person, is outside of the country of his or25her former habitual residence and is unable or,owing to such fear, unwilling to return to it,
and
(c) to whom section 73 does not apply;
“serious harm” means—30
(a) death penalty or execution,
(b) torture or inhuman or degrading treatment or punishmentof a person in his or her country of origin, or
(c) serious and individual threat to a civilian’s life or personby reason of indiscriminate violence in a situation of35international or internal armed conflict.
(2) For the purposes of this Part, protection against persecutionor serious harm shall be regarded as being generally provided wherereasonable steps are taken by a state or parties or organisations,including international organisations, controlling a state or a substan-40tial part of the territory of a state to prevent the persecution or suf-fering of serious harm, including by the operation of an effectivelegal system for the detection, prosecution and punishment of actsconstituting persecution or serious harm, where the protection appli-cant has access to such protection.45
(3) For the purposes of assessing, under subsection (2), whetheran international organisation controls a state or a substantial part ofthe territory of a state and provides protection against persecution
77
Restriction ofFreedom ofInformation Acts1997 and 2003.
Entitlement toprotection in State.
Assessment of factsand circumstances.
or serious harm, the Minister or, as the case may be, the Tribunalshall take into account any guidance which may be provided in rel-evant acts of the Council of the European Union.
68.—(1) The Freedom of Information Acts 1997 and 2003 do notapply to a record relating to a protection application, including its 5investigation or determination under this Part.
(2) In this section, “record” has the same meaning as it has in theFreedom of Information Acts 1997 and 2003.
69.—(1) Subject to subsection (3), a person is entitled to protec-tion in the State if he or she— 10
(a) is a refugee, or
(b) not being a refugee, is a person eligible for subsidiaryprotection.
(2) A person who seeks any form of protection in the State shallbe deemed to have sought protection in the State as a refugee. 15
(3) A protection applicant shall be presumed not to be in need ofprotection in the State if, at any time during the investigation of theprotection applicant’s protection application by the Minister undersection 83, it appears to the Minister that—
(a) the protection applicant’s country of origin is a country for 20the time being designated as a safe country of originunder section 117, and he or she has not shown anyreasonable grounds for considering that, notwithstandingthat designation, he or she, in his or her particular cir-cumstances, is entitled to protection in the State, or 25
(b) the protection applicant had lodged a prior protectionapplication in another state party to the Geneva Conven-tion and he or she has not shown reasonable grounds forthe contention that he or she is entitled to protection inthe State. 30
70.—(1) The following matters, insofar as they are known, shallbe taken into account by the Minister or the Tribunal, as the casemay be, for the purposes of determining a protection applicationunder section 88 or deciding an appeal under section 96:
(a) all relevant facts as they relate to the country of origin at 35the time of making the determination or, as the case maybe, the decision, including laws and regulations of thecountry of origin and the manner in which they areapplied;
(b) the relevant statements and documentation presented by 40the protection applicant including information onwhether he or she has been or may be subject to per-secution or serious harm;
(c) the individual position and personal circumstances of theprotection applicant, including factors such as back- 45ground, gender and age, so as to assess whether, on the
78
basis of the protection applicant’s personal circum-stances, the acts to which the protection applicant hasbeen or could be exposed would amount to persecutionor serious harm;
(d) whether the protection applicant’s activities since leaving5his or her country of origin were engaged in for the soleor main purpose of creating the necessary conditions forapplying for protection so as to assess whether theseactivities will expose the protection applicant to per-secution or serious harm if returned to that country;10
(e) whether the protection applicant could reasonably beexpected to avail himself or herself of the protection ofanother country where he or she could assert citizenship.
(2) The fact that a protection applicant has already been subjectto persecution or serious harm, or to direct threats of such per-15secution or such harm, shall, subject to subsection (3), be regardedas a serious indication of the protection applicant’s well-founded fearof persecution or real risk of suffering serious harm.
(3) Subsection (2) shall not apply where there are good reasons toconsider that such persecution or serious harm will not be repeated.20
(4) A well-founded fear of being persecuted or a real risk of suf-fering serious harm may be based on events which have taken placesince the protection applicant left his or her country of origin.
(5) A well-founded fear of being persecuted or a real risk of suf-fering serious harm may be based on activities which have been25engaged in by the protection applicant since he or she left his or hercountry of origin, in particular where it is established that the activi-ties relied upon constitute the expression and continuation of convic-tions or orientations held by the protection applicant in the countryof origin.30
(6) The Minister or Tribunal may determine that a protectionapplicant is not in need of protection if the protection applicant canreasonably be expected to stay in a part of his or her country oforigin where there is no well-founded fear of being persecuted orreal risk of suffering serious harm.35
(7) In examining whether a part of the country of origin accordswith subsection (6), the Minister or Tribunal shall have regard to thegeneral circumstances prevailing in that part of the country and tothe personal circumstances of the protection applicant.
(8) Where aspects of the protection applicant’s statements are not40supported by documentary or other evidence, those aspects shall notneed confirmation where the Minister or Tribunal is satisfied that—
(a) the protection applicant has made a genuine effort to sub-stantiate his or her application,
(b) all relevant elements at the protection applicant’s disposal45have been submitted and a satisfactory explanationregarding any lack of other relevant elements has beengiven,
79
Acts of persecution.
Factors bearing onassessment ofreasons for, andfear of, persecution.
(c) the protection applicant’s statements are found to becoherent and plausible and do not run counter to avail-able specific and general information relevant to the pro-tection applicant’s case,
(d) the protection applicant has applied for protection at the 5earliest possible time, except where he or she demon-strates good reason for not having done so, and
(e) the general credibility of the protection applicant hasbeen established.
71.—(1) Acts of persecution for the purposes of this Part must 10be—
(a) sufficiently serious by their nature or repetition to consti-tute a severe violation of basic human rights, in particularthe rights from which derogation cannot be made underArticle 15(2) of the European Convention for the Protec- 15tion of Human Rights and Fundamental Freedoms, or
(b) an accumulation of various measures, including violationsof human rights, which is sufficiently severe to affect anindividual in a similar manner as mentioned in para-graph (a). 20
(2) The following are examples of acts which may amount to actsof persecution for the purposes of subsection (1):
(a) acts of physical or mental violence, including acts of sex-ual violence;
(b) legal, administrative, police or judicial measures, or a com- 25bination of these measures, that are in themselves dis-criminatory or are implemented in a discriminatorymanner;
(c) prosecution or punishment that is disproportionate or dis-criminatory; 30
(d) denial of judicial redress resulting in a disproportionate ordiscriminatory punishment;
(e) prosecution or punishment for refusal to perform militaryservice in a conflict, where performing military servicewould include crimes or acts of a kind referred to in sub- 35section (2) or (3) of section 73;
(f) acts of a gender-specific or child-specific nature.
(3) For the purpose of the definition of “refugee” in section 67,there must be a connection between the reasons for persecution, asconstrued under section 72, and the acts of persecution, construed in 40accordance with this section.
72.—(1) The Minister or the Tribunal, as the case may be, shalltake the following into account when assessing the reasons for per-secution:
80
(a) the concept of race shall in particular include consider-ations of colour, descent or membership of a particularethnic group;
(b) the concept of religion shall in particular include the hold-ing of theistic, non-theistic and atheistic beliefs, the par-5ticipation in, or abstention from, formal worship inprivate or in public, either alone or in community withothers, other religious acts or expressions of view, orforms of personal or communal conduct based on or man-dated by any religious belief;10
(c) the concept of nationality shall not be confined to citizen-ship or lack thereof but shall in particular include mem-bership of a group determined by its cultural, ethnic orlinguistic identity, common geographical or politicalorigins or its relationship with the population of another15state;
(d) a group shall be considered to form a particular socialgroup where in particular—
(i) members of that group share an innate characteristic,or a common background that cannot be changed,20or share a characteristic or belief that is so funda-mental to identity or conscience that a person shouldnot be forced to renounce it, or
(ii) that group has a distinct identity in the relevant coun-try, because it is perceived as being different by the25surrounding society,
and, depending on the circumstances in the country oforigin, a particular social group may include a groupbased on a common characteristic of sexual orientation;
(e) the concept of political opinion shall in particular include30the holding of an opinion, thought or belief on a matterrelated to the potential actors of persecution and to theirpolicies or methods, whether or not that opinion, thoughtor belief has been acted upon by the protection appli-cant concerned.35
(2) In the assessment of whether a protection applicant has a well-founded fear of being persecuted, it is immaterial whether the pro-tection applicant actually possesses the racial, religious, national,social or political characteristic which attracts the persecution, pro-vided that such a characteristic is attributed to the protection appli-40cant by an actor of persecution.
(3) In this Part, “membership of a particular social group”includes membership of a trade union.
(4) For the purposes of subsection (1)(d)—
(a) sexual orientation shall not include acts considered to be45criminal in the State,
(b) gender related aspects may be taken into account,although where taken alone they would not create a pre-sumption for the applicability of this section.
81
Exclusion fromprotection.
73.—(1) A person is excluded from being a refugee where he orshe is—
(a) subject to subsection (6), receiving from organs or agenciesof the United Nations (other than the HighCommissioner) protection or assistance, or 5
(b) recognised by the competent authorities of the country inwhich he or she has taken residence as having the rightsand obligations which are attached to the possession ofthe nationality of that country, or rights and obligationsequivalent to those. 10
(2) A person is excluded from being a refugee where there areserious reasons for considering that he or she—
(a) has committed a crime against peace, a war crime or acrime against humanity, as defined in the internationalinstruments drawn up to make provision in respect of 15such crimes,
(b) has committed a serious non-political crime outside theState prior to the grant of a protection declaration, or
(c) has been guilty of acts contrary to the purposes and prin-ciples of the United Nations as set out in the Preamble 20and Articles 1 and 2 of the Charter of the United Nations.
(3) A person is excluded from being eligible for subsidiary protec-tion where there are serious reasons for considering that he or she—
(a) has committed a crime against peace, a war crime or acrime against humanity, as defined in the international 25instruments drawn up to make provision in respect ofsuch crimes,
(b) has committed a serious crime,
(c) has been guilty of acts contrary to the purposes and prin-ciples of the United Nations as set out in the Preamble 30and Articles 1 and 2 of the Charter of the UnitedNations, or
(d) constitutes a danger to the community or to the securityof the State.
(4) A person is excluded from being eligible for subsidiary protec- 35tion if he or she has, prior to his or her admission to the State, com-mitted a crime, not consisting of a crime or conduct referred to insubsection (3), which would be punishable by imprisonment had itbeen committed in the State and, in the opinion of the Minister orthe Tribunal, as the case may be, left his or her country of origin 40only in order to avoid sanctions resulting from that crime.
(5) A person who has instigated or otherwise participated in thecommission of an act or crime referred to in subsection (2) or (3) isexcluded from being a refugee or, as the case may be, a person eli-gible for subsidiary protection. 45
(6) Subsection (1)(a) shall not apply where the protection orassistance referred to in that subsection has ceased for any reason,without the position of persons who had been receiving that protec-tion or assistance being definitively settled in accordance with the
82
relevant resolutions adopted by the General Assembly of theUnited Nations.
74.—(1) A person shall cease to be a refugee if he or she—
(a) has voluntarily re-availed himself or herself of the protec-tion of his or her country of nationality,5
(b) having lost his or her nationality, has voluntarily re-acquired it,
(c) has—
(i) been granted a certificate of naturalisation under theIrish Nationality and Citizenship Acts 1956 to 2004,10or
(ii) acquired a new nationality, and enjoys the protectionof the country of his or her new nationality,
(d) has voluntarily re-established himself or herself in thecountry which he or she left or outside which he or she15remained owing to fear of persecution,
(e) subject to subsection (2), can no longer, because the cir-cumstances in connection with which he or she has beenrecognised as a refugee have ceased to exist, continue torefuse to avail himself or herself of the protection of his20or her country of nationality, or
(f) subject to subsection (2), being a stateless person, is able,because the circumstances in connection with which heor she has been recognised as a refugee have ceased toexist, to return to his or her country of former habitual25residence.
(2) In determining whether subsection (1)(e) or (f) applies, theMinister shall have regard to whether the change of circumstances isof such a significant and non-temporary nature that the person’s fearof persecution can no longer be regarded as well-founded.30
(3) A person shall cease to be eligible for subsidiary protectionwhen—
(a) (i) the circumstances which led to the granting of subsidi-ary protection status have ceased to exist or havechanged to such a degree that protection is no longer35required, and
(ii) the change of circumstances is of such a significantand non-temporary nature that the person no longerfaces a real risk of serious harm, or
(b) he or she has—40
(i) been granted a certificate of naturalisation under theIrish Nationality and Citizenship Acts 1956 to 2004,or
(ii) acquired a new nationality, and enjoys the protectionof the country of his or her new nationality.45
83
Cessation ofprotection status.
Protectionapplication entrypermission.
Chapter 2
Protection applications
75.—(1) A protection applicant shall be granted, by or on behalfof the Minister, a protection application entry permission.
(2) A protection application entry permission operates to allow a 5protection applicant to enter or, as the case may be, to remain in theState for the sole purpose of having his or her protection appli-cation investigated.
(3) The grant of a protection application entry permission undersubsection (1) does not, of itself— 10
(a) entitle the protection applicant to reside in the State,
(b) oblige the Minister to grant to the protection applicant anyform of residence permission under this Act, or
(c) confer any entitlement on the protection applicant toremain in the State when, in accordance with subsection 15(4), the permission is no longer valid.
(4) A protection application entry permission shall be valid untilwhichever of the following first occurs:
(a) the date on which the protection application or appeal iswithdrawn or, as the case may be, deemed to be with- 20drawn, under this Part;
(b) the date on which the protection application is, undersection 82, determined to be inadmissible,
(c) where the protection applicant is to be transferred undersection 119 or 120, as the case may be, the date of the 25notification referred to in section 119(4)(c) or, as the casemay be, section 120(3)(c);
(d) where the Minister has determined under section 88 thatthe protection applicant is not entitled to protection inthe State, the later of the following dates: 30
(i) where the protection applicant has appealed undersection 92 against the Minister’s determination, thedate on which notice is sent that the Tribunal has,under section 96(2)(a), decided to affirm the deter-mination of the Minister; or 35
(ii) where the protection applicant has not so appealed,the latest date for making such an appeal specifiedin the notification of the Minister’s determination ofthe protection application;
(e) where the Minister has decided to grant a protection dec- 40laration to the protection applicant the date on which aprotection permission is granted to the protectionapplicant;
84
(f) where the Minister has, in accordance with section 89,decided to grant a residence permission to the protectionapplicant, the date on which that permission is granted.
(5) A protection applicant, for so long as he or she is the holderof a valid protection application entry permission, shall—5
(a) not leave or attempt to leave the State without the consentof the Minister,
(b) not seek, enter or be in employment (including self-employment) or engage for gain in any business, tradeor profession,10
(c) inform the Minister of his or her address and any changeof address as soon as possible, and
(d) comply with either or both of the following conditions asmay be notified in writing to him or her by an immi-gration officer or an authorised person:15
(i) that he or she reside or remain in a specified districtor place in the State;
(ii) that he or she report at specified intervals to—
(I) an immigration officer or person nominated forthe purposes of this subsection by the Minister,20
(II) a specified Garda Síochána station, or
(III) a specified immigration area office.
(6) (a) An immigration officer or an authorised person may, bynotice in writing, withdraw a condition referred to in sub-section (5)(d) or vary it in a specified manner.25
(b) A protection applicant to whom subsection (5)(d) appliesshall comply with any conditions that have been variedin accordance with paragraph (a).
(7) A notification under subsection (5)(d) or (6) shall be in a lang-uage that the protection applicant may reasonably be supposed to30understand, and shall—
(a) inform the protection applicant that, in the event he or shefails to comply with a condition specified in the notifi-cation, his or her protection application or, as the casemay be, appeal, may be deemed to have been with-35drawn, and
(b) contain a statement of the effect of section 6 and section66.
(8) A protection applicant who contravenes subsection (5) or (6)is guilty of an offence.40
(9) Where a protection application entry permission is granted toa protection applicant, he or she shall, subject to section 78, be issuedwith a protection application entry permit.
85
Register ofprotectionapplicants.
(10) In this section, “authorised person” means a person author-ised by the Minister to perform the functions conferred on an author-ised person by this section.
76.—(1) The Minister shall cause to be established and main-tained a register of foreign nationals to whom protection application 5entry permissions have been granted, which register shall be knownas the Register of Protection Applicants.
(2) The Register of Protection Applicants shall contain, in respectof each protection applicant registered in it, the followinginformation: 10
(a) his or her name in which his or her protection applicationentry permission was granted;
(b) his or her sex;
(c) his or her registration number;
(d) his or her nationality (unless he or she is a stateless 15person);
(e) his or her country of origin;
(f) his or her date and place of birth;
(g) his or her date, place and mode of arrival in the State;
(h) the address of his or her dwelling place; 20
(i) the address of his or her dwelling place outside the Stateimmediately prior to his or her arrival in the State;
(j) a photograph sufficient to identify him or her;
(k) particulars of his or her travel document;
(l) whether he or she is an unaccompanied person under the 25age of 18 years;
(m) the details referred to in paragraphs (a) to (k) as theyrelate to any of his or her dependants, whether or notsuch dependants are resident in the State.
(3) A protection applicant shall provide the Minister with such 30information as the Minister considers necessary to enable thecreation of an accurate entry relating to the protection applicant inthe Register of Protection Applicants or, as the case may be, to main-tain the accuracy of that Register—
(a) on being so required by the Minister, or 35
(b) whenever a matter arises or event occurs which affects ormight affect the accuracy of that Register relating to theapplicant concerned.
(4) A protection applicant who contravenes subsection (3) isguilty of an offence. 40
86
(5) Without prejudice to sections 122 and 123, access to the infor-mation contained in the Register of Protection Applicants shall beconfined to—
(a) an officer of the Minister,
(b) an immigration officer, and5
(c) a member of the Garda Síochána,
who requires that information for any purpose under this Act.
77.—(1) A protection application entry permit shall contain—
(a) the name, date of birth and nationality of the holder, sofar as they are known or can be established,10
(b) a photograph sufficient to identify the holder, and
(c) such information as may be prescribed, including infor-mation relating to the holder.
(2) A protection application entry permit, although issued,remains the property of the Minister.15
(3) A protection application entry permit is not an identitydocument.
(4) A protection application entry permit ceases to be valid, andthe holder of it shall return it to the Minister without delay, after theprotection application entry permission concerned ceases to be valid20under section 75(4).
78.—(1) Where an immigration officer, under section 27(6), grantsa protection application entry permission to a foreign national, theofficer shall—
(a) if it is practicable to do so, issue a protection application25entry permit to the foreign national at the frontier con-cerned, and
(b) if it is not practicable to issue that permit to the foreignnational in accordance with paragraph (a), require theforeign national to remain in a place specified by the30officer so as to facilitate the issue of a protection appli-cation entry permit to the foreign national as a matterof priority.
(2) An immigration officer shall furnish to a foreign national towhom subsection (1)(b) applies a notice in writing, in a language35that the foreign national may reasonably be supposed to understand,setting out the following:
(a) that the foreign national will as soon as practicable beissued with a protection application entry permit;
(b) that the foreign national is required to remain in the place40specified in the notice until arrangements can be madefor the issue to him or her of the permit;
87
Protectionapplication entrypermit.
Procedures for issueof protectionapplication entrypermit whereforeign national ispresent at frontier.
Arrest anddetention ofprotectionapplicants in certaincircumstances.
(c) that the foreign national is required to co-operate as neces-sary in the making of those arrangements, including per-mitting himself or herself to be brought to a place wherethe permit can be issued;
(d) that failure to remain in the place specified in the notice 5or to co-operate in the making of arrangements for theissue of a protection application entry permit—
(i) is an offence,
(ii) will result in the foreign national’s protection appli-cation being deemed to be withdrawn, and 10
(iii) renders the foreign national unlawfully present in theState, under an immediate and continuing obligationto leave the State and liable to be removed from theState in accordance with the provisions of this Actand, if necessary, to be arrested, or arrested and 15detained, for that purpose.
(3) A foreign national who is subject to a requirement under sub-section (1)(b) shall co-operate so far as necessary and practicable inthe making of arrangements for the issue to him or her of a protec-tion application entry permit. 20
(4) The arrangements referred to in subsection (3) may includethe bringing of the foreign national to a place where the protectionapplication entry permit can be issued.
(5) A foreign national is guilty of an offence if he or she—
(a) fails to comply with a requirement imposed under subsec- 25tion (1)(b), or
(b) contravenes subsection (3).
79.—(1) An immigration officer or a member of the Garda Síoch-ána may arrest a protection applicant and detain him or her in aprescribed place, (in this section referred to as a “place of 30detention”), being a prison or other place in the charge of a gov-ernor, an immigration officer or a member of the Garda Síochána,where that officer or member, with reasonable cause, suspects thatthe protection applicant—
(a) poses a threat to public security or public order in the 35State,
(b) has committed a serious non-political crime outside theState,
(c) has not made reasonable efforts to establish his or heridentity, 40
(d) intends to avoid removal from the State in the event ofhis or her application being transferred under section 119or 120,
(e) intends to leave the State and without lawful authorityenter another state, 45
(f) without reasonable cause—
88
(i) has destroyed his or her identity or travel document,or
(ii) is or has been in possession of a forged, altered orsubstituted identity document,
(g) was, immediately before the making of the protection5application, a person who was being, or was to be,removed from the State under section 59 (otherwise thanon foot of a refusal under section 29) and has made theprotection application for the purpose of delaying his orher removal from the State, or10
(h) has made the application for the purpose referred to inparagraph (g) and the application is one to which section97 applies.
(2) A person detained under this section shall, as soon as practi-cable, be brought before a judge of the District Court assigned to15the District Court district in which the person is being detained.
(3) Where a person is brought before a judge of the District Courtunder subsection (2), the judge may—
(a) subject to subsection (5), and if satisfied that one or moreof the paragraphs of subsection (1) apply in relation to20the person, commit the person concerned to a place ofdetention for a period not exceeding 21 days from thetime of his or her detention, or
(b) without prejudice to subsection (5), release the person andmake such release subject to conditions, including con-25ditions requiring him or her to—
(i) reside or remain in a specified district or place in theState,
(ii) report at specified intervals to a specified GardaSíochána station or immigration area office,30
(iii) surrender any travel document that he or she holds, or
(iv) enter into a recognisance, with or without surety orsureties, subject to such conditions as the judge con-siders appropriate.
(4) Section 60(10) shall apply to a recognisance entered into under35subsection (3)(b)(iv) as if the references in section 60(10) to the HighCourt were references to the judge of the District Court.
(5) If, at any time during the detention of a person under thissection, an immigration officer or a member of the Garda Síochánais of the opinion that none of the paragraphs of subsection (1) applies40in relation to the person, the person shall, as soon as practicable, bebrought before a judge of the District Court assigned to the DistrictCourt district where the person is being detained and, if the judge issatisfied that none of the paragraphs of subsection (1) applies inrelation to the person, the judge shall release the person.45
(6) Where a person is released from a place of detention subjectto one or more of the conditions referred to in subsection (3)(b), ajudge of the District Court assigned to the District Court district inwhich the person’s dwelling place is situated may, on the application
89
of the person, an immigration officer or a member of the GardaSíochána, if the judge considers it appropriate to do so, vary, revokeor add a condition to the release.
(7) Subject to subsection (8), subsections (1) to (6) shall not applyto a person who is under the age of 18 years. 5
(8) If, and for so long as, the immigration officer or, as the casemay be, the member of the Garda Síochána concerned has reason-able grounds for believing that the person is not under the age of 18years, the provisions of subsections (1) to (6) shall apply as if he orshe had attained the age of 18 years. 10
(9) Where an unmarried person under the age of 18 years is inthe custody of another person (whether his or her parent or a personacting in loco parentis or any other person) and that other person isdetained under the provisions of this section, the immigration officeror the member of the Garda Síochána concerned shall, without 15delay, notify the Health Service Executive of the detention and ofthe circumstances thereof.
(10) A member of the Garda Síochána may arrest without war-rant and detain, in a place of detention, a person who, in themember’s opinion, has failed to comply with a condition imposed by 20the District Court under subsection (3)(b).
(11) A person detained under subsection (10) shall be brought assoon as practicable before a judge of the District Court assigned tothe District Court district in which the person is being detained, andsubsections (3), (4) and (5) shall apply to such person detained under 25subsection (10) as they apply to a person detained under subsection(1), the references in those subsections to the judge’s being satisfiedthat one or more of the paragraphs of subsection (1) applies beingconstrued as a reference to his or her being satisfied that the personhas failed to comply with a condition referred to in subsection (3)(b). 30
(12) If a judge of the District Court is satisfied in relation to aperson brought before him or her under subsection (11) that the per-son has complied with the condition referred to in subsection (3)(b),the judge shall order the release of the person.
(13) Where a judge of the District Court commits a person to a 35place of detention under subsection (3) or (11), a judge of the DistrictCourt assigned to the District Court district in which the person isbeing detained may, if satisfied that one or more of the paragraphsof subsection (1) applies in relation to the person, commit him or herfor further periods (each period being a period not exceeding 21 40days) pending the determination of the person’s protectionapplication.
(14) (a) If, at any time during the detention of a person under thissection, the person indicates a desire to leave the State,he or she shall, as soon as practicable, be brought before 45a judge of the District Court assigned to the DistrictCourt district in which the person is being detained.
(b) The judge shall, if satisfied that—
(i) the person does not wish to proceed with his or herprotection application and wishes to leave the 50State, and
90
(ii) the person has obtained, or has been given the oppor-tunity of obtaining or being provided with, pro-fessional legal advice on the consequences of his orher decision not to proceed with his or her protec-tion application,5
order the Minister to arrange for the removal of the per-son from the State, and may include in the order suchancillary or consequential provisions as he or she maydetermine.
(c) On the making of the order referred to in paragraph (b),10the person shall be deemed to have withdrawn his or herprotection application.
(15) A person detained under this section is entitled to—
(a) consult a solicitor,
(b) have notification of his or her detention, the place of his15or her detention and every change in that place sent tothe High Commissioner and to another person reason-ably nominated by the detained person for the purpose,and
(c) the assistance of an interpreter for the purpose of consul-20tation with a solicitor under paragraph (a) and for thepurpose of any appearance before a court under thissection.
(16) An immigration officer or, as the case may be, a member ofthe Garda Síochána detaining a person under subsection (1) or (10)25shall, without delay, inform the person or cause him or her to beinformed, in a language that he or she may reasonably be supposedto understand—
(a) that he or she is being detained under this section,
(b) that he or she will, as soon as practicable, be brought30before a court which shall determine whether or not heor she should be committed to a place of detention orreleased pending a determination of his or her protec-tion application,
(c) of his or her entitlements under subsection (15), and35
(d) that he or she is entitled to leave the State at any timeduring the period of his or her detention and, if he or sheindicates a desire to do so, he or she will, in accordancewith subsection (14), be brought before a court as soonas practicable, and the court may make such orders as40may be necessary for his or her removal from the State.
(17) The immigration officer or, as the case may be, the memberof the Garda Síochána concerned shall also explain to a persondetained under subsection (1) or (10), in a language that the personmay reasonably be supposed to understand, that, if he or she does45not wish to exercise a right specified in subsection (15) immediately,he or she will not be precluded thereby from doing so later.
(18) The immigration officer or, as the case may be, the memberof the Garda Síochána, shall notify the Minister and, if the person
91
Priority to be givento detainedprotectionapplicants.
Protectionapplication andinformation to begiven to protectionapplicant aboutprocedure.
detained has appealed under section 92, the Tribunal, of the deten-tion or release of a person under this section.
(19) In this section, “substituted identity document” means anidentity document that does not relate to the person who is or hasbeen in possession of the document and which the person in pos- 5session of the document has used or intends to use for the purposesof establishing identity.
80.—The Minister or the Tribunal, as the case may be, shall ensurethat the protection application or the appeal, as the case may be, ofa person detained under subsection (1), (3) or (10) of section 79 shall 10be dealt with as soon as practicable and, if necessary, before anyother protection application or appeal, as the case may be, of a per-son not so detained.
Chapter 3
Protection application procedure 15
81.—(1) Subject to section 29(4), a foreign national, whether law-fully or unlawfully in the State, may make a protection applicationto the Minister.
(2) A foreign national who has given an indication referred to insection 27(6) or who makes a protection application under subsection 20(1) shall be interviewed by an officer of the Minister or an immi-gration officer at such times as may be specified by the officer con-cerned, and the foreign national shall make himself or herself avail-able for such interview at the times so specified.
(3) An interview of a person under subsection (2) (the “prelimin- 25ary interview”) shall be conducted so as to serve the purpose ofestablishing, among other things—
(a) whether the person wishes to make a protection appli-cation and, if he or she does so wish, the general groundsupon which the application is based, 30
(b) the identity of the person,
(c) the nationality of the person,
(d) the country of origin of the person,
(e) the means of transport used, the route travelled by theperson to the State and details of any person who assisted 35the person in travelling to the State,
(f) the reason why the person came to the State,
(g) the legal basis for the entry into or presence in the Stateof the person, and
(h) whether any of the circumstances referred to in section 4082(1) may apply.
(4) A preliminary interview shall, where necessary, be conductedwith the assistance of an interpreter.
92
(5) A record of a preliminary interview shall be kept by the officerconducting it and a copy of it shall be furnished to the person and,if the preliminary interview was conducted by an immigration officerwho is not an officer of the Minister, to the Minister.
(6) (a) Where it appears to an officer referred to in this section5that the foreign national who is applying under subsection(1), or who is the subject of a preliminary interview, isunder the age of 18 years and is not accompanied by anadult who is taking responsibility for the care and protec-tion of the foreign national concerned, the officer shall,10as soon as practicable, notify the Health Service Execu-tive of that fact.
(b) After the notification referred to in paragraph (a)—
(i) it shall be presumed that the foreign national is a childin need of care and protection, and15
(ii) the Child Care Acts 1991 to 2007 and other enact-ments relating to the care and welfare of personsunder the age of 18 years shall apply accordingly.
(7) (a) Where a foreign national who is applying under subsection(1), or who is the subject of a preliminary interview, is20under the age of 18 years and accompanied by an adult,any officer referred to in this section, where he or sheconsiders it appropriate to do so, shall require that adultto satisfy him or her that the adult is taking responsibilityfor the care and protection of the foreign national25concerned.
(b) For the purposes of paragraph (a), the officer may makesuch inquiries of or about the foreign national concerned,and the adult, as the officer considers necessary in orderto satisfy himself or herself that the adult is taking the30responsibility referred to in paragraph (a) and is author-ised to do so.
(c) Where the officer (whether or not having made appro-priate enquiries under paragraph (b)) is not satisfiedeither that the adult is taking responsibility for the35foreign national or that the adult is authorised to do so,he or she shall so inform the Health Service Executive,and—
(i) it shall be presumed that the foreign national is a childin need of care and protection, and40
(ii) the Child Care Acts 1991 to 2007 and other enact-ments relating to the care and welfare of personsunder the age of 18 years shall apply accordingly.
(8) Where it appears to the Health Service Executive, on the basisof information available to it, that a protection application should be45made on behalf of the foreign national referred to in subsection (6)or (7) or in section 28(6)(b), it shall arrange for the appointment ofan employee of the Health Service Executive or such other personas it may determine to make such an application on behalf of theforeign national.50
(9) A protection application shall not be made by a personappointed under subsection (8) unless the Health Service Executive
93
is satisfied, on the basis of the information available to it, that suchan application should be made.
(10) Any costs incurred by a person appointed under subsection(8), other than any legal costs arising from a protection application,shall be paid by the Health Service Executive. 5
(11) The officer conducting a preliminary interview shall informthe foreign national being interviewed that he or she is entitled toconsult a solicitor and the High Commissioner.
(12) A protection application made by a foreign national undersubsection (1) shall be deemed to be made on behalf of— 10
(a) all the dependent children of the foreign national, who arepresent in the State and under the age of 18 years at thetime of the making of the application, and
(b) the dependent children of the foreign national who areborn in the State, or who, being under the age of 18 years 15at the time of their arrival, arrive in the State, after theforeign national has made the application but before—
(i) the foreign national’s protection application entrypermission ceases to be valid under section 75(4), or
(ii) the foreign national, following a determination that 20he or she is not entitled to protection in the State,leaves or is removed from the State.
(13) A protection application under subsection (1) shall be madein the prescribed form and presented by the protection applicant inperson, and shall include all details of the grounds on which— 25
(a) protection is being claimed, and
(b) in the event of protection not being granted, the protectionapplicant considers that he or she should nevertheless bepermitted to remain in the State.
(14) The Minister shall notify the High Commissioner in writing 30of the making of a protection application and the notice shall includethe name of the protection applicant, his or her country of origin andsuch other information as the Minister considers appropriate.
(15) The Minister shall furnish a copy of the record of a prelimi-nary interview to the High Commissioner whenever requested in 35writing by the High Commissioner to do so.
(16) The Minister shall, as soon as practicable after receipt by himor her of a protection application, give or cause to be given to theprotection applicant a statement in writing specifying, in a languagethat the protection applicant may reasonably be supposed to 40understand—
(a) the procedures to be followed in the investigation of pro-tection applications under this Part,
(b) the entitlement of the protection applicant for the pur-poses of his or her protection application to consult a 45solicitor and, where necessary, to be provided with aninterpreter,
94
(c) the entitlement of the protection applicant to communi-cate with the High Commissioner,
(d) the entitlement of the protection applicant to make sub-missions in writing to the Minister,
(e) the duty of the protection applicant to co-operate with the5Minister and to furnish information relevant to his or herprotection application and to all other aspects of his orher request to be given permission to remain in the State,
(f) the obligation of the protection applicant to comply withconditions imposed under section 75, and10
(g) the possible consequences of the failure of the protectionapplicant to attend an interview under section 83, or tocomply with the obligations referred to in paragraphs (e)and (f), including—
(i) the possibility that his or her protection application15may be deemed to be withdrawn with the result thathe or she will be determined not to be entitled toprotection in the State,
(ii) the expiration of the protection application entry per-mission granted to him or her as a result of the20deemed withdrawal, and
(iii) the effect of sections 6 and 66.
(17) A protection application shall be considered to have beenmade on the date on which a protection application entry permissionhas been granted to the protection applicant.25
82.—(1) The Minister shall determine a protection application tobe inadmissible if any of the following circumstances applies:
(a) another Member State has granted refugee status or sub-sidiary protection status to the protection applicant;
(b) a country other than a Member State is, in accordance30with subsection (2), a first country of asylum for the pro-tection applicant;
(c) the application is made by the holder of a residence per-mission granted or deemed to have been granted underthis Act that is subject to conditions that are the same, or35equivalent to, those that apply to a protection declarationunder section 109(4);
(d) the application is made by the holder of an entry per-mission or a residence permission that allows him or herto enter or, as the case may be, be present in the State40pending consideration by the Minister of whether he orshe will be granted a residence permission referred to inparagraph (c).
(2) A country is a first country of asylum for a protection appli-cant if he or she—45
(a) (i) has been recognised in that country as a refugee andcan still avail himself or herself of that protection, or
95
Inadmissibleprotectionapplications.
Minister’sinvestigation ofprotectionapplications.
(ii) otherwise enjoys sufficient protection in that country,including benefiting from the principle of non-refoulement,
and
(b) will be re-admitted to that country. 5
(3) Where, under subsection (1), the Minister determines a pro-tection application to be inadmissible—
(a) any investigation of the protection application shall beterminated,
(b) the report referred to in section 88(1) shall not be prepared 10but another report shall be prepared in writing, whichshall include a statement that the protection applicationhas been determined to be inadmissible and the reasonsfor that determination,
(c) the Minister shall notify in writing the protection appli- 15cant, and his or her legal representative (if known) of thedetermination, which notification shall include—
(i) a copy of the report under paragraph (b),
(ii) a statement of the date on which the protection appli-cant’s protection application entry permission 20ceases, under section 75, to be valid,
(iii) if the Minister has decided to make a non-returnorder under section 55 in conjunction with the deter-mination, a statement of—
(I) that fact and the reasons for it, and 25
(II) the exclusion period concerned, and
(III) a statement of the effect of paragraph (a) and ofsections 6 and 66, and
(d) the Minister shall notify the High Commissioner of thedetermination that the protection application is inad- 30missible.
83.—(1) (a) Subject to sections 82, 119 and 120, the Minister shallinvestigate each protection application for the purpose ofdetermining whether—
(i) the protection applicant is entitled to protection in the 35State, or
(ii) notwithstanding that the protection applicant is not soentitled, he or she will be granted a residence per-mission in accordance with section 89.
(b) Nothing in paragraph (a) shall be construed as conferring 40any entitlement on a protection applicant who is notentitled to protection in the State to be granted a resi-dence permission in accordance with section 89.
96
(2) As part of an investigation under subsection (1), the Ministershall cause the protection applicant to be interviewed at such timeand place that the Minister may fix.
(3) An interviewer conducting an interview under subsection (2)may, where he or she considers it necessary to do so, interview any5dependants of the protection applicant being so interviewed.
(4) An interview under subsection (2) or (3) shall, where neces-sary, be conducted with the assistance of an interpreter who is ableto ensure appropriate communication between the person beinginterviewed and the interviewer.10
(5) The requirement in subsection (4) shall be regarded as com-plied with if interpretation is provided in a language that the personbeing interviewed may reasonably be supposed to understand and inwhich he or she is able to communicate.
(6) An interview under subsection (2) or (3) shall take place—15
(a) without the presence of other members of the protectionapplicant’s family unless the interviewer considers itnecessary for an appropriate examination to have otherfamily members present, and
(b) under conditions which ensure appropriate confidentiality.20
(7) The following may be present at an interview under subsection(2) or (3):
(a) the High Commissioner, whenever he or she so requests,and
(b) the protection applicant’s legal representative or a person25nominated by that legal representative, with the consentof the protection applicant.
(8) (a) Where a protection applicant is under the age of 18 yearsand is accompanied by an adult other than his or herparent, the interviewer, where he or she considers it30appropriate to do so, shall require the adult to satisfy himor her that the adult is taking responsibility for the careand protection of the protection applicant concerned.
(b) For the purposes of paragraph (a), the interviewer maymake such inquiries of or about the protection applicant35and the adult concerned as the interviewer considersnecessary in order to satisfy himself or herself that theadult is taking the responsibility referred to in paragraph(a) and is authorised to do so.
(c) Where the interviewer (whether or not having made40appropriate enquiries under paragraph (b)) is not satis-fied either that the adult is taking responsibility for theprotection applicant or that the adult is authorised to doso, he or she shall so inform the Health Service Execu-tive, and—45
(i) it shall be presumed that the protection applicant is achild in need of care and protection, and
97
Burden of proof.
(ii) the Child Care Acts 1991 to 2007 and other enact-ments relating to the care and welfare of personsunder the age of 18 years shall apply accordingly.
(9) The Minister may prescribe the conditions governing the pres-ence of third parties at an interview under subsection (2) or (3). 5
(10) An interview under subsection (2) or (3) may be dispensedwith where the Minister is of the opinion that—
(a) based on the available evidence, the protection applicantis a refugee,
(b) where the protection applicant is a minor, he or she is of 10such an age and degree of maturity that an interviewwould not usefully advance the investigation, or
(c) the protection applicant is unfit or unable to be inter-viewed owing to circumstances that are enduring andbeyond his or her control. 15
(11) Subsection (10) shall not of itself operate to—
(a) prevent information relating to the protection applicationfrom being submitted to the Minister by or on behalf ofthe protection applicant,
(b) prevent the Minister from making a final determination in 20respect of the application, or
(c) adversely affect the final determination of the application.
(12) The protection applicant, the High Commissioner or anyother person concerned may make representations in writing to theMinister in relation to any matter relevant to an investigation by him 25or her under this section and the Minister shall take account of anysuch representations made before or during an interview under sub-section (2) or (3).
(13) Subsection (12) shall not be construed as preventing theMinister from taking into account any representations made follow- 30ing an interview under subsection (2) or (3) provided that such rep-resentations are made prior to the determination referred to insection 88(2).
(14) Nothing in the Data Protection Acts 1988 and 2003 shall beconstrued as prohibiting an information holder from giving to the 35Minister, under section 121, on request by him or her, such infor-mation as is in the information holder’s possession or control relatingto the protection application.
(15) The procedures to be followed in investigations under thissection may be prescribed and different procedures may be pre- 40scribed for different classes of applications.
84.—(1) Subject to section 70(8), at all times during the consider-ation of a protection application, including an appeal under section92, the onus shall lie on a protection applicant to establish that he orshe is entitled to protection in the State. 45
98
(2) The Minister shall, in co-operation with the protection appli-cant, assess the relevant elements of the protection application andall other aspects of the claim to remain in the State.
(3) The Tribunal shall, for the purpose of an appeal, in co-oper-ation with the protection applicant, assess the relevant elements of5the protection application.
85.—(1) The Minister shall assess the credibility of a protectionapplicant for the purposes of—
(a) the investigation of his or her protection application, and
(b) the consideration of whether the protection applicant10should be allowed to remain in the State on othergrounds.
(2) The Tribunal shall assess the credibility of a protection appli-cant for the purposes of the determination of an appeal in respect ofhis or her protection application.15
(3) In assessing the credibility of a protection applicant under sub-section (1) or (2), the Minister or Tribunal, as the case may be, mayhave regard to such factors as the Minister or the Tribunal considersrelevant, including the following:
(a) whether the protection applicant possesses identity docu-20ments, and, if not, whether he or she has provided areasonable explanation for the absence of any suchdocuments;
(b) where the protection applicant has forged, destroyed ordisposed of any identity or other documents relevant to25his or her application, whether he or she has provided areasonable explanation for so doing;
(c) whether the protection applicant has provided a reason-able explanation to substantiate his or her claim that theState is the first safe country in which he or she has30arrived since departing from his or her country of origin;
(d) where the protection application was made elsewhere thanat a frontier of the State, whether the protection appli-cant has provided a reasonable explanation to show whyhe or she did not claim protection immediately on arriv-35ing at a frontier of the State (unless the application isgrounded on events which have taken place since his orher arrival in the State);
(e) whether the protection applicant has provided a full andtrue explanation of how he or she travelled to or arrived40in the State;
(f) whether the protection applicant has made false or mis-leading representations in relation to his or her appli-cation including by withholding relevant information ordocuments with respect to his or her identity or national-45ity that could have a negative impact on the decision;
(g) whether the protection applicant has made inconsistent,contradictory, improbable or insufficient representations;
99
Credibility.
Duty to co-operate.
(h) whether the protection applicant, without reasonablecause, has made the protection application followingreceipt of a notification of a decision or proposal torevoke or not to renew his or her entry or residence per-mission or any other notification to the effect that his or 5her presence in the State is unlawful, or following thecommencement of arrangements for his or her removalfrom the State under this Act;
(i) whether the protection applicant has, without reasonablecause, failed to comply with the requirements of section 1075(5)(a), (c) or (d) or section 75(6);
(j) whether the protection applicant has complied with therequirements of section 86;
(k) whether, in the case of an appeal under section 92, theprotection applicant has furnished information in relation 15to the appeal which he or she could reasonably have fur-nished during the investigation of the application by theMinister but did not so furnish.
86.—(1) It shall be the duty of a protection applicant to co-operate in— 20
(a) the investigation of his or her protection application,
(b) the determination of an appeal in respect of his or herprotection application, and
(c) the consideration of whether he or she should be allowedto remain in the State on other grounds. 25
(2) In complying with subsection (1), a protection applicant shallfurnish to the Minister or the Tribunal, as the case may be, as soonas reasonably practicable, all relevant information in his or her pos-session, control or procurement.
(3) Subsection (1) shall apply in respect of all persons on whose 30behalf a protection application is made.
(4) Without prejudice to the generality of subsections (2) and (3),the information referred to in those subsections includes informationon the country of origin, biometric information and all statementsmade by the protection applicant and all documentation at the pro- 35tection applicant’s disposal regarding his or her—
(a) age,
(b) background (including that of relevant relatives),
(c) country or countries and place or places of previousresidence, 40
(d) identity,
(e) identity and travel documents,
(f) nationality or nationalities,
(g) previous protection applications,
100
(h) reasons for applying for protection or for otherwise wish-ing to remain in the State, and
(i) travel routes and details of persons who assisted the pro-tection applicant in travelling to the State.
87.—(1) The Minister and the Tribunal and their respective5officers shall take all practicable steps to ensure that the identity ofprotection applicants is kept confidential.
(2) A person shall not, without the consent of that protectionapplicant, publish in a written publication available to the public orbroadcast, or cause to be so published or broadcast, information10likely to lead members of the public to identify a person as a protec-tion applicant.
(3) If any matter is published or broadcast in contravention ofsubsection (2), the following persons are guilty of an offence:
(a) in the case of a publication in a newspaper or periodical,15the proprietor, the editor and the publisher of the news-paper or periodical,
(b) in the case of any other publication, the person who pub-lishes it,
(c) in the case of matter that is a programme that is broadcast,20any person who transmits or provides the programme inwhich the broadcast is made, and any person having func-tions in relation to the programme corresponding tothose of the editor of a newspaper, and
(d) in the case of matter that is broadcast but is not a prog-25ramme, the person responsible for broadcasting thematter and any person having functions in relation to thewebsite or other medium of communications correspond-ing to those of the editor of a newspaper.
(4) Where a person is charged with an offence under subsection30(3) it shall be a defence to prove that at the time of the allegedoffence he or she was not aware, and neither suspected nor hadreason to suspect, that the publication or broadcast in question wasof such matter as is referred to in subsection (2).
(5) In this section—35
“broadcast” means the transmission, relaying or distribution by wire-less telegraphy or cable of communications, sounds, signs, visualimages or signals intended for direct reception by the general public,whether such communications, sounds, signs, visual images or signalsare actually received or not, and includes the publication of such40communications, sounds, signs, visual images or signals through themedium of the internet;
“written publication” includes a film, a sound track and any otherrecord in permanent form (including a record that is not in a legibleform but which is capable of being reproduced in a legible form) but45does not include an indictment or other document prepared for usein particular legal proceedings.
101
Protection ofidentity ofprotectionapplicants.
Determination andreport ofinvestigation ofprotectionapplication.
88.—(1) The Minister shall cause a written report to be preparedunder this section following the conclusion of an investigation of aprotection application.
(2) The report under subsection (1) shall—
(a) refer to the matters relevant to the protection application 5which are—
(i) raised by the protection applicant, in an interviewunder section 83 or a preliminary interview undersection 81 or at any time before the conclusion of theinvestigation, and 10
(ii) other matters the Minister considers appropriate, and
(b) set out the findings of the Minister together with his or herdetermination in relation to the protection application.
(3) The determination referred to in subsection (2) shall be that—
(a) the protection applicant, along with, as the case may be, 15his or her dependants on whose behalf the applicationwas made or deemed to have been made, is entitled toprotection in the State as a refugee and, subject to section109(7), will be granted a protection declaration,
(b) the protection applicant, along with, as the case may be, 20his or her dependants on whose behalf the applicationwas made or deemed to have been made, is not entitledto protection in the State as a refugee but is entitled toprotection in the State as a person eligible for subsidiaryprotection and, subject to section 109(7), will be granted 25a protection declaration, or
(c) neither the protection applicant nor any of his or herdependants on whose behalf the application was made ordeemed to have been made, is entitled to protection inthe State and he, she or they will not be permitted to 30remain in the State.
(4) Where a report under subsection (1) includes the determi-nation specified in subsection (3)(c), the findings of the Minister inthat report may include one or more of the following:
(a) that the application showed either no basis or a minimal 35basis for the contention that the protection applicant isin need of protection in the State;
(b) that the protection applicant made statements or providedinformation in support of the application of such a false,contradictory, misleading or incomplete nature as to lead 40to the conclusion that the application is manifestlyunfounded;
(c) that the protection applicant, without reasonable cause,failed to provide identity documents or provided falseidentity documents; 45
(d) that the protection applicant, without reasonable cause,failed to make an application as soon as reasonably prac-ticable after arrival in the State;
102
(e) that the application was one to which section 97 applies;
(f) that the protection applicant had lodged a prior protectionapplication in another Member State or state party to theGeneva Convention (whether or not that application hadbeen determined, granted or rejected);5
(g) that the country of origin of the protection applicant is acountry for the time being designated as a safe countryof origin under section 117, and the protection applicanthas not shown any reasonable grounds for consideringthat, notwithstanding that designation, he or she, in his10or her particular circumstances, is entitled to protectionin the State;
(h) that the protection applicant has, without reasonablecause, failed to comply with the requirements of para-graph (a), (c) or (d) of section 75(5) or section 75(6).15
(5) Where a determination referred to in subsection (2) cannot bemade within 6 months of the date of application then the Ministershall, upon request from the protection applicant, provide the protec-tion applicant with information on the estimated time within whicha determination may be made.20
(6) The provision under subsection (5) by the Minister of an esti-mated time within which a determination may be made shall not ofitself oblige the Minister to make a determination within that time.
89.—Where, on the basis of the findings referred to in section88(2)(b), the Minister is preparing to make a determination referred25to in section 88(3)(c), the Minister shall also decide, in his or herabsolute discretion, whether to grant a residence permission to theprotection applicant concerned (and his or her dependants on whosebehalf the application was made or deemed to have been made)despite that determination, but only if the Minister is satisfied that30there are compelling reasons that arise from the matters referred toin section 88(2)(a) which prevent the Minister from removing theapplicant or dependant concerned, or otherwise justify permittingthat applicant and, as the case may be, those dependants to remainin the State.35
90.—(1) A protection applicant may withdraw his or her protec-tion application by sending notice of withdrawal to the Minister.
(2) Where a protection applicant does not attend for an interviewunder section 83 on the date and at the time fixed for such interviewthen, unless he or she, not later than 3 working days from that date,40furnishes the Minister with an explanation for the non-attendancewhich in the opinion of the Minister is reasonable in the circum-stances, his or her protection application shall be deemed to bewithdrawn.
(3) Where—45
(a) in the opinion of the Minister a protection applicant hasfailed, or is failing, in his or her duty to co-operate undersection 86, or
(b) the Minister is of the opinion that the protection applicantis in breach of section 75(5)(a), (c) or (d) or section 75(6),50
103
Minister’s discretionto grant residencepermission incertaincircumstances.
Withdrawal ordeemed withdrawalof protectionapplication.
then the Minister may send to the protection applicant or his or herlegal representative (if known) written notice of his or her opinion.
(4) The Minister, in the notice under subsection (3), shall also—
(a) require the protection applicant to confirm in writingwithin 10 working days of the date of the notice that he 5or she wishes to continue with his or her protectionapplication,
(b) remind the protection applicant of his or her duty to co-operate under section 86 and to comply with any require-ments that have been or may be imposed on him or her 10under paragraph (a), (c) or (d) of section 75(5) or section75(6), and
(c) include a statement of the consequences specified in sub-section (5).
(5) The consequences referred to in subsection (4)(c) are that a 15protection applicant’s application shall be deemed to be withdrawn,and that subsection (7) shall apply accordingly, if the protectionapplicant—
(a) does not furnish the confirmation referred to in subsection(4)(a), or 20
(b) having furnished such a confirmation, in the opinion of theMinister fails or continues to fail to comply with any ofthe obligations referred to in subsection (4)(b).
(6) Where a protection applicant to whom section 78(1)(b) appliesfails to remain in the place specified in a notice furnished under 25section 78(2) or to co-operate in the making of arrangements for theissue to him or her of a protection application entry permit, his or herprotection application shall thereupon be deemed to be withdrawn.
(7) Where a protection application is withdrawn or deemed to bewithdrawn under this Part— 30
(a) any investigation of the protection application shall beterminated,
(b) the report referred to in section 88(1) shall not be preparedbut another report shall be prepared in writing, whichshall— 35
(i) state that the application has been withdrawn ordeemed to have been withdrawn, as the case may be,
(ii) state the reasons for the withdrawal or deemed with-drawal, and
(iii) include a determination that the protection applicant 40concerned is not entitled to protection in the State,
(c) the Minister shall notify in writing the protection applicantand his or her legal representative (if known) that theapplication has been withdrawn or deemed to be with-drawn, as the case may be, which notification shall 45include—
(i) a copy of the report under paragraph (b),
104
(ii) a statement of the date on which the protection appli-cant’s protection application entry permissionceases, under section 75, to be valid,
(iii) if the Minister has decided to make a non-returnorder under section 55 in conjunction with the deter-5mination, a statement of—
(I) that fact and the reasons for it, and
(II) the exclusion period concerned, and
(iv) a statement of the effect of paragraphs (a), and ofsections 6 and 66, and10
(d) the Minister shall notify the High Commissioner that theapplication has been withdrawn or deemed to have beenwithdrawn, as the case may be.
91.—(1) The Minister shall notify the protection applicant, theprotection applicant’s legal representative (if known) and, whenever15so requested by him or her, the High Commissioner, of the Minister’sdetermination of the protection application under section 88(2).
(2) Where the Minister’s determination under section 88(2) is onereferred to in paragraph (b) or (c) of section 88(3), the notificationunder subsection (1) shall be accompanied by—20
(a) a statement of the reasons for that determination,
(b) a copy of the report under section 88(1), and
(c) subject to subsection (3),—
(i) copies of any reports, documents or representationsin writing submitted to the Minister under section 8325and not already available to the protection applicantor his or her legal representative, and
(ii) an indication in writing of the nature and source ofany other information relating to the applicationwhich has come to the notice of the Minister in the30course of an investigation by him or her under thatsection.
(3) Where the Minister’s determination under section 88(2) is thatreferred to in section 88(3)(a), the notification under subsection (1)need consist only of that fact.35
(4) The notification under subsection (1) of a determination undersection 88(2) referred to in section 88(3)(b) or (c) shall inform theprotection applicant of any entitlement he or she has to appeal to theTribunal under subsection (5) or section 99(2) and of the proceduresspecified in section 92.40
(5) Where a report under section 88(1) includes—
(a) a determination that the protection applicant—
(i) is not entitled to protection in the State as a refugee,or
105
Notification ofdetermination ofprotectionapplication at firstinstance.
Appeal to Tribunal.
Oral hearings.
(ii) is not entitled to protection in the State either as arefugee or as a person eligible for subsidiaryprotection,
and
(b) any of the findings in section 88(4), 5
then, subject to section 99(2), the protection applicant may, within10 working days of the sending of the notification under subsection(1), appeal to the Tribunal under section 92, and any such appeal willbe determined without an oral hearing.
92.—(1) A protection applicant may appeal, in accordance with 10regulations under subsection (5) (if any), against a determination ofthe Minister under section 88(2), referred to in paragraph (b) or (c)of section 88(3), that the protection applicant—
(a) is not entitled to protection in the State as a refugee, or
(b) is not entitled to protection in the State either as a refugee 15or as a person eligible for subsidiary protection.
(2) An appeal under subsection (1) shall be brought by notice inwriting—
(a) within 15 working days of the sending of the notificationreferred to in section 91(1) or, as the case may be, within 20the period specified in section 91(5) or section 99(2), asappropriate, and
(b) specifying the grounds of appeal and, except in a case towhich section 91(5) or section 99(2) applies, indicatingwhether the protection applicant wishes the Tribunal to 25hold an oral hearing for the purpose of his or her appeal.
(3) The Tribunal shall notify the Minister and the High Com-missioner of the making of the appeal.
(4) The Tribunal shall ensure that an appeal to which section91(5) or section 99(2) applies shall be dealt with as soon as practi- 30cable and, if necessary, before any other appeal.
(5) The Minister may prescribe procedures for and in relation toappeals under subsection (1).
93.—(1) (a) Except where otherwise provided in section 91(5) or99(2), the Tribunal shall, where appropriate, hold an oral 35hearing for the purposes of an appeal under this Act.
(b) An oral hearing shall, subject to paragraph (c), be heldin private.
(c) The High Commissioner may be present at an oral hearingfor the purpose of observing the proceedings. 40
(2) For the purposes of an oral hearing, the Tribunal may—
(a) direct in writing any person, except the Minister or anofficer of the Minister, whose evidence is required by theTribunal to attend before the Tribunal on a date and at
106
a time and place specified in the direction and there togive evidence and to produce any document or thing inhis or her possession or control specified in the direction,
(b) direct any such person to produce any specified documentor thing in his or her possession or control, and5
(c) give any other directions for the purpose of an appeal thatappear to the Tribunal to be reasonable and just.
(3) The Minister may direct that any information contained in adocument or thing be withheld in the interests of national security,public security or public order, or for reasons of public policy (“ordre10public”), and when he or she does so, subsections (2)(a) and (b) shallnot apply to a document or thing relating to such information.
(4) The Tribunal shall permit the protection applicant to bepresent at and participate in the hearing and present his or her caseto the Tribunal in person or through his or her legal representative,15or a person nominated by that legal representative.
(5) The Tribunal shall permit the Minister or an officer of theMinister to be present at and participate in the hearing and presenthis or her case to the Tribunal in person or through a legal represen-tative or other person.20
(6) (a) An oral hearing shall, where necessary, be conducted withthe assistance of an interpreter who is able to ensureappropriate communication between the persons partici-pating in the hearing.
(b) The requirement in paragraph (a) shall be regarded as25complied with if interpretation is provided in a languagethat a person participating in the hearing may reasonablybe supposed to understand and in which he or she is ableto communicate.
(7) An oral hearing under this section may be dispensed with30where the Tribunal is of the opinion that—
(a) where the protection applicant is under 18 years of age (inthis section referred to as a “minor”), he or she is of suchan age and degree of maturity that an oral hearing wouldnot usefully advance the appeal, or35
(b) the protection applicant is unfit or unable to participate inan oral hearing owing to circumstances that are enduringand beyond his or her control.
(8) The application of subsection (7) shall not of itself—
(a) prevent information relating to the protection application40from being submitted to the Tribunal by or on behalf ofthe protection applicant,
(b) prevent the Tribunal from making a final determination inrespect of the appeal, or
(c) adversely affect the final determination of the appeal.45
(9) (a) Where a protection applicant is under the age of 18 yearsand is accompanied by an adult other than his or herparent, the Tribunal, where it considers it appropriate to
107
Appeal to Tribunal:provision ofinformation.
do so, may require the adult to satisfy it that he or she istaking responsibility for the care and protection of theprotection applicant concerned.
(b) For the purposes of paragraph (a), the Tribunal may makesuch inquiries of or about the protection applicant con- 5cerned, and the adult, as the Tribunal considers necessaryin order to satisfy itself that the adult is taking theresponsibility referred to in paragraph (a) and is author-ised to do so.
(c) Where the Tribunal (whether or not having made appro- 10priate enquiries under paragraph (b)) is not satisfiedeither that the adult is taking responsibility for the pro-tection applicant or that the adult is authorised to do so,it shall so inform the Health Service Executive, and—
(i) it shall thereupon be presumed that the protection 15applicant is a child in need of care and protection,and
(ii) the Child Care Acts 1991 to 2007 and other enact-ments relating to the care and welfare of personsunder the age of 18 years shall apply accordingly. 20
(10) Subject to section 94(2), a witness whose evidence has beenor is to be given before the Tribunal shall be entitled to the sameprivileges and immunities as a witness in a court.
(11) The Tribunal, where it considers it appropriate to do so inthe interest of the fair and efficient discharge of its business, may 25decide to hold—
(a) a single oral hearing in respect of more than one appeal, or
(b) separate oral hearings in respect of each of a number ofprotection applicants, notwithstanding that the protectionapplicants are members of the same family or that the 30applications are otherwise related.
(12) The Tribunal shall, subject to section 94(2)(b) and (c), furnishthe protection applicant concerned and his or her legal representa-tive (if known) and the High Commissioner whenever so requestedby him or her with— 35
(a) copies of any report, observations, representations in writ-ing or any other document furnished to the Tribunal bythe Minister, copies of which have not been previouslyfurnished to the protection applicant or, as the case maybe, the High Commissioner, and 40
(b) an indication in writing of the nature and source of anyother information having a direct bearing on the assess-ment of whether the protection applicant is entitled toprotection in the State as a refugee or, as the case maybe, a person eligible for subsidiary protection, which has 45come to the notice of the Tribunal in the course of anappeal under this Part.
94.—(1) The Minister shall furnish the Tribunal with copies of thedocuments and information referred to in section 92(2) and of thenotification referred to in that section. 50
108
(2) (a) Where the Minister has withheld information from a pro-tection applicant under section 144(3) he or she may alsowithhold such information from the Tribunal for thereasons stated in that section.
(b) Where the Minister furnishes the Tribunal with infor-5mation which has been withheld from the protectionapplicant under section 144(3), the Tribunal shall not dis-close that information to the applicant.
(c) Where the Minister furnishes the Tribunal with infor-mation to which section 144(4) relates, the Tribunal shall10not disclose that information otherwise than in accord-ance with that subsection.
(3) The Tribunal may, for the purposes of its functions under thisChapter, request the Minister to make such further inquiries and tofurnish the Tribunal with such further information as the Tribunal15considers necessary within such period as may reasonably be speci-fied by the Tribunal.
(4) The Minister shall, subject to section 144(3) and (4) furnishthe Tribunal with observations in writing concerning any matter aris-ing on the grounds of appeal whenever so requested by the Tribunal,20and a copy of such observations shall be furnished to the applicantconcerned and his or her legal representative (if known).
95.—(1) A protection applicant may withdraw his or her appealto the Tribunal by sending notice of withdrawal to the Tribunal andthe Tribunal shall, as soon as practicable, notify the Minister of the25withdrawal.
(2) Where a protection applicant fails, without reasonable cause,to attend before the Tribunal in accordance with—
(a) a direction issued under section 93(2)(a), or
(b) any arrangement made by the Tribunal under section 93(4)30to allow him or her to participate in a hearing, or presenthis or her case to the Tribunal in person,
then, unless the protection applicant, not later than 3 working daysfrom the date specified in that direction or arranged under section93(4) by the Tribunal, furnishes the Tribunal with an explanation for35the non-attendance which the Tribunal considers reasonable in thecircumstances, his or her appeal shall be deemed to be withdrawn.
(3) Where—
(a) in the opinion of the Tribunal a protection applicant hasfailed, or is failing, in his or her duty to co-operate under40section 86, or
(b) the Minister notifies the Tribunal that he or she is of theopinion that the protection applicant is in breach of para-graph (a), (c) or (d) of section 75(5) or section 75(6), thenthe Tribunal shall send to the protection applicant or his45or her legal representative (if known) written notice ofthat opinion.
(4) The Tribunal, in the notice under subsection (3), shall also—
109
Withdrawal anddeemed withdrawalof appeal. .
(a) require the protection applicant to confirm in writingwithin 10 working days of the date of the notice that heor she wishes to continue with his or her appeal,
(b) remind the protection applicant of his or her duty to co-operate under section 86 and to comply with any require- 5ments that have been or may be imposed on him or herunder paragraph (a), (c) or (d) of section 75(5) or section75(6), and
(c) include a statement of the consequences specified in sub-section (5). 10
(5) The consequences referred to in subsection (4)(c) are that aprotection applicant’s appeal shall be deemed to be withdrawn, andsubsection (7) shall apply, if the protection applicant—
(a) does not furnish the confirmation referred to in subsection(4)(a), or 15
(b) having furnished such a confirmation, in the opinion ofthe Tribunal fails or continues to fail to comply with theobligations referred to in subsection (4)(b).
(6) Where an appeal is deemed to be withdrawn under this Part,the Tribunal shall, as soon as practicable, notify the applicant, his or 20her legal representative (if known) and the Minister of the deemedwithdrawal.
(7) Where an appeal is withdrawn, or deemed to be withdrawnunder this Part, then—
(a) the consideration of the appeal by the Tribunal shall be 25terminated,
(b) the determination of the Minister under section 88(2) thatis the subject of the appeal shall remain in effect,
(c) no further appeal shall lie against the determinationreferred to in paragraph (b), 30
(d) where the determination under section 88(2) is onereferred to in section 88(3)(c), the protection applicantconcerned is unlawfully present in the State and may beremoved from the State in accordance with the provisionsof this Act, 35
(e) the Minister shall notify the protection applicant in writingin a language the protection applicant may reasonably besupposed to understand, and the protection applicant’slegal representative (if known), that the appeal has beenwithdrawn or deemed to have been withdrawn, as the 40case may be, which notification shall include a statementof the effect of paragraphs (a) to (c),
(f) where paragraph (d) applies to the protection applicantconcerned, the notification referred to in paragraph (e)shall also include— 45
(i) a statement of that fact,
110
(ii) a statement of the date on which the protection appli-cant’s protection application entry permissionceases, under section 75, to be valid,
(iii) if the Minister has decided to make a non-returnorder under section 55 in conjunction with the notifi-5cation, a statement of—
(I) that fact and the reasons for it, and
(II) the exclusion period concerned, and
(iv) a statement of the effect of paragraph (d) and ofsections 6 and 66, and10
(g) the Minister shall notify the High Commissioner that theappeal has been withdrawn or deemed to have been with-drawn, as the case may be.
96.—(1) Before reaching a decision under subsection (2) the Tri-bunal shall consider the following:15
(a) the notice under section 92(2);
(b) all material furnished to the Tribunal by the Ministerunder section 94 that is relevant to the decision as towhether the protection applicant is entitled to protectionin the State as a refugee or, as the case may be, a person20eligible for subsidiary protection;
(c) the determination of the Minister referred to in section88(2);
(d) any observations made to the Tribunal by the Minister orthe High Commissioner; and25
(e) where an oral hearing has been held, the evidence adducedand any representations made at that hearing.
(2) The Tribunal may decide to—
(a) affirm a determination of the Minister—
(i) referred to in section 88(3)(b) that the protection30applicant is not entitled to protection in the State asa refugee, or
(ii) referred to in section 88(3)(c) that the protectionapplicant is not entitled to protection in the Stateeither as a refugee or as a person eligible for subsidi-35ary protection, or
(b) set aside a determination of the Minister—
(i) referred to in section 88(3)(b) that the protectionapplicant is not entitled to protection in the State asa refugee and recommend that the protection appli-40cant should be granted protection in the State as arefugee, or
(ii) referred to in section 88(3)(c) that the protectionapplicant is not entitled to protection in the State
111
Decision ofTribunal on appeal.
Subsequentprotectionapplication.
either as a refugee or as a person eligible for subsidi-ary protection and recommend that the protectionapplicant should be granted protection in the Stateas a refugee or, as the case may be, a person eligiblefor subsidiary protection. 5
(3) (a) The Tribunal shall affirm a determination of the Ministerreferred to in subsection (2)(a)(i) unless it is satisfied,having considered the matters referred to in subsection(1), that the protection applicant is a person entitled toprotection in the State as a refugee. 10
(b) The Tribunal shall affirm a determination of the Ministerreferred to in subsection (2)(a)(ii) that the protectionapplicant is not entitled to protection in the State unlessit is satisfied, having considered the matters referred toin subsection (1), that the protection applicant is a person 15entitled to protection in the State as a refugee or, as thecase may be, a person eligible for subsidiary protection.
(4) A decision of the Tribunal under subsection (2) and thereasons therefore shall be communicated by the Tribunal to—
(a) the protection applicant concerned and his or her legal 20representative (if known), and
(b) the Minister.
(5) A decision of the Tribunal under subsection (2) shall be com-municated to the High Commissioner.
(6) A decision of the Tribunal shall become the final decision of 25the Tribunal once it has been communicated to the protection appli-cant or his or her legal representative (if known) under subsection(4)(a).
97.—(1) A person may not make a subsequent protection appli-cation without the consent of the Minister, given under this section. 30
(2) An application for the consent referred to in subsection (1)shall be accompanied by—
(a) a written statement of the reasons why the person con-cerned considers that the Minister should consent to asubsequent protection application being made, 35
(b) where the previous protection application or appeal waswithdrawn or deemed to be withdrawn, a written expla-nation of the circumstances giving rise to the withdrawalor deemed withdrawal of the application or appeal,
(c) all relevant information being relied upon by the person 40concerned to demonstrate that he or she is entitled toprotection in the State, and
(d) a written statement drawing to the Minister’s attention anynew elements or findings relating to the examination ofwhether he or she is entitled to protection in the State 45which have arisen since his or her protection applicationentry permission ceased to be valid.
112
(3) The Minister shall, as soon as practicable after receipt by himor her of an application under subsection (2), give or cause to begiven to the person concerned a statement in writing specifying, in alanguage that the person may reasonably be supposed tounderstand—5
(a) the procedures that are to be followed for the purposes ofthis section,
(b) the entitlement of the person to communicate with theHigh Commissioner,
(c) the entitlement of the person to make submissions in writ-10ing to the Minister,
(d) the duty of the person to co-operate with the Minister andto furnish information relevant to his or her application,and
(e) such other information as the Minister considers necessary15to inform the person of the effect of this section, and ofany other relevant provision of this Act.
(4) The Minister, pursuant to an application under subsection (2),shall consent to a subsequent protection application being madewhere he or she is satisfied that—20
(a) since his or her protection application entry permissionceased to be valid, new elements or findings have arisenor have been presented by the person concerned whichmakes it significantly more likely that the person willqualify for protection in the State, and25
(b) the person was, through no fault of the person, incapableof presenting those elements or findings for the purposesof his or her previous protection application (including,as the case may be, any appeal under section 92).
(5) Where the Minister, under subsection (4)—30
(a) consents to the making of a subsequent protection appli-cation, he or she shall, as soon as practicable, notify theperson concerned of that fact, and
(b) refuses to consent to the making of a such a subsequentprotection application, he or she shall, as soon as practi-35cable, notify the person concerned of that fact and of thereasons for it and of how a review of that decision maybe sought.
98.—(1) Where, in the performance by the Minister of his or herfunctions under this Act in relation to a protection applicant, a ques-40tion arises regarding the physical or psychological health of the pro-tection applicant, the Minister may require the protection applicantto be examined and a report furnished by a nominated registeredmedical practitioner in relation to the health of the protectionapplicant.45
(2) Where, in the performance by the Tribunal of its functionsunder this Act in relation to a protection applicant, a question arisesregarding the physical or psychological health of the protectionapplicant, the Tribunal may require the protection applicant to be
113
Report in relationto health ofprotectionapplicant.
Acceleratedprocedure in certaincases. .
Protection ReviewTribunal.
examined and a report furnished by a nominated registered medicalpractitioner in relation to the health of the protection applicant.
(3) For the purposes of this section, “nominated registered medi-cal practitioner” means such registered medical practitioner as theMinister may nominate from time to time. 5
99.—(1) Notwithstanding any other provision of this Part, theMinister may investigate protection applications of such classes asmay be prescribed, in accordance with such accelerated proceduresas he or she considers appropriate in the circumstances.
(2) Where a report under section 88(1) in respect of a protection 10application referred to in subsection (1) includes—
(a) a determination that the protection applicant—
(i) is not entitled to protection in the State as a refugee,or
(ii) is not entitled to protection in the State either as a 15refugee or as a person eligible for subsidiaryprotection,
and
(b) any of the findings in section 88(4),
then, subject to subsections (3) and (4), the protection applicant may, 20within 4 working days of the notification of the Minister’s determi-nation of the application being received by, or, if earlier, deemedunder section 136 to have been duly given, to him or her, appeal tothe Tribunal under section 92, and any such appeal shall be deter-mined without an oral hearing. 25
(3) Where a protection application is one referred to in subsection(1), the Minister shall notify the protection applicant accordingly inwriting and shall send a copy of the notice to his or her legal rep-resentative (if known) and, if so requested by the High Com-missioner, to him or her. 30
(4) Subsection (2) shall not apply to a protection applicationunless the protection applicant concerned, and his or her legal rep-resentative (if known) have been notified in accordance with subsec-tion (3).
Chapter 4 35
Protection Review Tribunal
100.—(1) On the day that the Minister may by order appoint,there shall stand established a Tribunal to be known as An Binseum Athbhreithniú Cinntí Cosanta or, in the English language, theProtection Review Tribunal, which shall determine appeals under 40section 92, and perform such other functions as may be conferred onit by or under this Act.
(2) Subject to subsection (3), the Tribunal shall be—
(a) inquisitorial in nature, and
114
(b) independent in the performance of its functions.
(3) This section shall not be construed as prejudicing the gener-ality of any other provision of this Part or of applicable regulations.
(4) The Minister may appoint such and so many persons to bemembers of the staff of the Tribunal as he or she considers necessary5to assist the Tribunal in the performance of its functions and suchmembers of the staff of the Tribunal shall receive such remunerationand be subject to such other terms and conditions of service as theMinister may, with the consent of the Minister for Finance,determine.10
(5) Members of the staff of the Tribunal shall be civil servantswithin the meaning of the Civil Service Regulation Acts 1956 to 2005.
(6) Whenever the Tribunal consists of more than one member, itshall be grouped into divisions, each of which shall consist of onemember.15
101.—(1) The Tribunal shall consist of the following members:
(a) a chairperson, who shall be appointed in a whole-timecapacity; and
(b) such number of other members, appointed either in awhole-time or a part-time capacity, as the Minister, with20the consent of the Minister for Finance, considers neces-sary for the expeditious performance of the functions ofthe Tribunal,
each of whom shall have had before his or her appointment theappropriate experience specified in subsection (2).25
(2) The experience referred to in subsection (1) is—
(a) in relation to the chairperson, not less than 5 years’ experi-ence as a practising barrister or practising solicitor, and
(b) in relation to members other than the chairperson, not lessthan 5 years’ experience—30
(i) as a practising barrister or practising solicitor,
(ii) that is such experience relating to protection mattersas may be prescribed, or
(iii) that is a combination of the experience referred to insubparagraphs (i) and (ii).35
(3) Subject to subsection (4), the Minister shall appoint themembers of the Tribunal.
(4) Subject to subsections (8) and (16) and section 164(6), theMinister shall not appoint—
(a) the chairperson of the Tribunal, or40
(b) any other member of the Tribunal in a whole-timecapacity,
115
Membership ofTribunal.
unless the Public Appointments Service, within the meaning of thePublic Service Management (Recruitment and Appointment) Act2004, after holding a competition under section 47 of that Act, hasselected him or her for appointment to the position.
(5) Subsection (4) shall not apply to the reappointment of a 5member, in accordance with subsection (7), for a second term.
(6) Each member of the Tribunal shall hold office under a con-tract of service in writing, containing such terms and conditions(including terms and conditions relating to remuneration, allow-ances, expenses and superannuation) as the Minister, with the con- 10sent of the Minister for Finance, may determine.
(7) The term of office of the members of the Tribunal shall beas follows:
(a) the term of office of the chairperson shall be 5 years anda chairperson may be reappointed to the office for a 15second term not exceeding 5 years;
(b) the term of office of a member appointed in a whole-timecapacity, other than the chairperson, shall be 3 years orsuch longer duration not exceeding 5 years as may beprescribed and such a member may be reappointed to the 20office for a second term not exceeding 3 years or suchlonger duration not exceeding 5 years as may beprescribed;
(c) the term of office of a member appointed in a part-timecapacity shall be 3 years and such a member may be 25reappointed to the office for a second or subsequent termnot exceeding 3 years.
(8) Where the chairperson is for any reason temporarily unableto act as the chairperson, or the office of the chairperson is vacant,the Minister shall appoint a person to be the chairperson for the 30duration of the inability or until an appointment is made under sub-section (4)(a), as appropriate, and the person so appointed may per-form all the functions conferred on the chairperson by this Act.
(9) A member of the Tribunal may resign from office by letteraddressed to the Minister and the resignation shall take effect from 35the date specified in the letter.
(10) A member of the Tribunal shall cease to be a member of theTribunal on attaining the age of 66 years.
(11) Where a member of the Tribunal is—
(a) nominated as a member of Seanad Éireann, 40
(b) elected as a member of either House of the Oireachtas orto be a member of the European Parliament,
(c) regarded pursuant to section 19 of the European Parlia-ment Elections Act 1997 as having been elected to thatParliament, 45
(d) elected or co-opted as a member of a local authority,
(e) appointed to judicial office, or
116
(f) appointed Attorney General,
he or she shall thereupon cease to be a member of the Tribunal.
(12) A person who is for the time being—
(a) entitled under the Standing Orders of either House of theOireachtas to sit therein,5
(b) a member of the European Parliament, or
(c) entitled under the standing orders of a local authority tosit as a member thereof,
shall, while he or she is so entitled under paragraph (a) or (c) or issuch a member under paragraph (b), be disqualified from being a10member of the Tribunal.
(13) Without prejudice to the generality of subsection (12), thatsubsection shall be construed as prohibiting the reckoning of a periodreferred to therein as service with the Tribunal for the purposes ofany superannuation benefits payable under this Act or otherwise.15
(14) A member of the Tribunal may be removed from office bythe Minister for stated reasons.
(15) If a member appointed in a part-time capacity—
(a) dies, resigns, becomes disqualified, is removed fromoffice, or20
(b) is for any reason temporarily unable to continue to per-form his or her functions,
the Minister may, subject to this Act, appoint another person to bea member of the Tribunal in a part-time capacity to fill the casualvacancy so occasioned.25
(16) If a member appointed in a whole-time capacity—
(a) dies, resigns, becomes disqualified or is removed fromoffice, or
(b) is for any reason temporarily unable to continue to per-form his or her functions,30
the Minister may appoint a person to be a member in a whole-timeor part-time capacity until an appointment is made in accordancewith subsection (4).
102.—(1) The chairperson shall ensure that the functions of theTribunal are performed efficiently and that the business assigned to35each member is disposed of as expeditiously as may be consistentwith fairness and natural justice.
(2) The chairperson may, having regard to the need to observefair procedures, establish rules and procedures for the conduct oforal appeals under this Part and shall publish any such rules and40procedures so established.
(3) The chairperson may issue to the members and staff of theTribunal guidelines or guidance notes generally on the practical
117
Functions ofchairperson ofTribunal, etc.
application and operation of the provisions, or any particular pro-visions, of this Part and on developments in the law relating toprotection.
(4) (a) The chairperson may, if he or she considers it appropriateto do so in the interest of the fair and efficient perform- 5ance of the functions of the Tribunal, issue guidelines tothe Registrar for the purpose of the performance of his orher functions of assigning or re-assigning appeals undersection 105(2) or (3).
(b) In issuing the guidelines referred to in paragraph (a), the 10chairperson shall have regard to the following matters:
(i) the grounds of the appeals specified in the notices ofappeal;
(ii) the country of origin of protection applicants;
(iii) any family relationship between protection applicants; 15
(iv) the ages of the protection applicants and, in part-icular, of persons under the age of 18 years in respectof whom protection applications are made;
(v) the provisions of this Act under which the appealsare made; 20
(vi) any direction given to the Tribunal under section 108.
(5) The chairperson shall—
(a) re-assign business from one member to a different memberif, in the opinion of the chairperson, such re-assignment—
(i) is warranted by the inability or unwillingness to trans- 25act that business of the member to whom the busi-ness was originally assigned, and
(ii) where the business relates to an appeal, cannot beachieved by agreement between the Registrar andthat member, 30
(b) require a member to prepare a report of his or her deter-mination of each appeal within a period specified in theguidelines and guidance notes referred to at subsection(3), and
(c) require a member to prepare a report on any aspect of the 35transaction of the business assigned to the member.
(6) The chairperson may from time to time convene a meetingwith a member or members of the Tribunal for the purpose of dis-cussing matters relating to the transaction of the business assignedto the member or members, including, in particular, such matters as 40the avoidance of undue divergences in the transaction of business bythe members.
(7) The chairperson shall convene a meeting of the members atleast once a year to review the transaction of business by membersand, where necessary, to make provision for training programmes 45for members.
118
(8) Where it appears to the chairperson that a draft decision madeby a member in relation to an appeal under this Part but not yetissued is likely to contain an error of law or of fact, he or she mayrequest the member to review the draft decision and the member sorequested shall review the draft decision and make such amend-5ments, if any, as that member considers necessary, and the decisionfollowing such review and such amendments as have been made bythat member shall be the final decision of the member.
(9) The chairperson may, on notice to the protection applicant,refer any final decision of a member for the direction of the High10Court where he or she considers that the decision contains an errorof law.
(10) The High Court shall determine a referral under subsection(9) by giving such directions and making such orders as it considersappropriate.15
(11) The chairperson may delegate to a member of the staff ofthe Tribunal his or her functions of receiving reports under section103(2)(d) from members.
(12) The Chairperson shall make the following written reports onthe activities of the Tribunal:20
(a) a report to the Minister in relation to any function that thechairperson performs under this Part or on the operationof this Part in general, if requested to do to by the Mini-ster or if the chairperson considers it appropriate to doso;25
(b) an annual report to the Minister not later than 3 monthsafter the end of each year, which the Minister shall causeto be laid before each House of the Oireachtas not morethan 30 days after he or she receives it.
(13) The Tribunal shall be named as respondent in any pro-30ceedings brought by a protection applicant arising from the perform-ance of the functions of the Tribunal or any of its members relatingto that applicant’s appeal, and the chairperson shall be responsiblefor the conduct of such proceedings on behalf of the Tribunal.
(14) In this section and section 103, “business” means the determi-35nation of appeals under section 92 and any additional tasks assignedto a member by the chairperson in order to fulfil any other functionsconferred on the Tribunal by or under this Act.
103.—(1) A member of the Tribunal shall, on behalf of the Tri-bunal, transact the business assigned to him or her under this Act.40
(2) A member shall, in the performance of his or her functionsunder this Part—
(a) ensure that the business assigned to him or her is managedefficiently and disposed of as expeditiously as is consist-ent with fairness and natural justice,45
(b) conduct oral hearings in accordance with such rules andprocedures as are established or adopted by the chair-person under section 102(2),
119
Role of members ofthe Tribunal.
Registrar.
Functions of theRegistrar.
(c) have regard to any guidelines or guidance notes issued bythe chairperson under section 102(3),
(d) prepare the report referred to in paragraph (b) or (c) ofsection 102(5) and provide it to the chairperson whenrequested to do so, and 5
(e) attend any meetings convened by the chairperson undersection 102(6) or (7), unless it is impracticable to do so.
104.—(1) The Minister shall designate a person who is for thetime being a member of the staff of the Tribunal to be the Registrarof the Tribunal. 10
(2) A person designated under subsection (1) shall perform thefunctions assigned to him or her by or under this Act.
(3) The Registrar shall be responsible to the chairperson for theperformance of his or her functions.
(4) Where the Registrar is for any reason temporarily unable to 15perform his or her function of assigning and re-assigning appealsunder section 105(2) or (3) or the position of Registrar is vacant, thatfunction of the Registrar may be performed, for the duration of theinability or until a designation is made under subsection (1), by suchmember of the staff of the Tribunal as may, from time to time, be 20designated for that purpose by the Registrar, or (in the absence ofsuch designation) by the Minister, and references in this Part and inPart 10 to the Registrar shall be read as including references to aperson designated under this subsection.
105.—(1) The Registrar shall, in consultation with the 25chairperson—
(a) manage and control generally the staff and administrationof the Tribunal, and
(b) perform such other functions as may be conferred on himor her by the chairperson. 30
(2) The Registrar shall assign to each member the appeals to bedetermined by him or her.
(3) Subject to section 102(5)(a), the Registrar may re-assign anappeal where the member to whom it was originally assigned isunable or unwilling to determine that appeal. 35
(4) In assigning or re-assigning an appeal to a member the Regis-trar shall have regard to—
(a) the need to ensure the efficient management of the workof, and the expeditious performance of its functions by,the Tribunal, consistent with fairness and natural justice, 40
(b) any guidelines issued by the chairperson under section102(4)(a), and
(c) any direction given to the Tribunal under section 108.
120
(5) The Registrar shall bring to the attention of the chairpersonany matter relevant to the chairperson’s functions under subsection(1) or paragraph (a), (b) or (c) of section 102.
(6) (a) The Registrar shall, whenever requested by the chair-person, assign to the chairperson—5
(i) appeals, or
(ii) a particular appeal,
to be determined by the chairperson under this Part.
(b) In assigning an appeal under paragraph (a), the Registrarshall comply with any direction of the chairperson.10
(c) In making a request or giving a direction referred to inthis subsection, the chairperson shall have regard to thematters referred to in paragraphs (a) and (c) of subsec-tion (4).
106.—(1) There shall be an advisory committee (the “Advisory15Committee”) the function of which shall be to advise the chairpersonin relation to any of his or her functions under this Act andcomprising—
(a) the chairperson, and
(b) such other members of the Tribunal, not exceeding 5, as20the Minister considers appropriate having regard to sub-section (3).
(2) The Minister shall appoint, and may terminate for statedreasons the appointment of, the members of the AdvisoryCommittee.25
(3) In determining the membership of the Advisory Committee,the Minister shall have regard to the provisions of subsection (4) andto the following matters:
(a) the need to ensure that the composition of the AdvisoryCommittee reasonably reflects that of the Tribunal in30relation to the proportion of members of the Tribunalappointed in a whole-time capacity to those appointed ina part-time capacity;
(b) the need to ensure that the number of members of theAdvisory Committee is reasonably proportionate to the35number of members for the time being of the Tribunal.
(4) (a) Subject to paragraph (b)—
(i) an appointment under subsection (2) shall be for suchperiod, not exceeding 2 years, as may be specified bythe Minister when making the appointment, and40
(ii) a member of the Advisory Committee may bereappointed for a second term not exceeding 2 years.
(b) Where a member of the Advisory Committee ceases to bea member of the Tribunal, he or she shall thereuponcease to be a member of the Advisory Committee.45
121
AdvisoryCommittee.
Access to Tribunaldecisions.
Prioritisation.
(5) The chairperson shall—
(a) determine the rules and procedures of the AdvisoryCommittee,
(b) convene a meeting of the Advisory Committee at least 4times a year, and 5
(c) chair the meetings of the Advisory Committee.
(6) A member of the Advisory Committee shall attend any meet-ings convened by the chairperson under subsection (5)(b), unless itis impracticable to do so.
(7) The Advisory Committee— 10
(a) may give such advice and make such recommendations tothe chairperson on any matter relating to the functionsof the chairperson as it thinks fit, and
(b) shall give advice and make recommendations to the chair-person on any such matter as the chairperson may 15request.
(8) Nothing in this section—
(a) affects any obligation of a member of the Advisory Com-mittee, as a member of the Tribunal, under section 103, or
(b) prevents the chairperson from establishing committees of 20members to deal with specific aspects of the performanceof the functions of the Tribunal.
107.—(1) The chairperson shall ensure that a protection applicantor his or her legal representative is provided with reasonable accessto any previous decision of the Tribunal under section 96(2). 25
(2) The access provided under subsection (1) may be—
(a) in such form, and
(b) subject to such conditions relating to confidentiality anduse,
as the chairperson considers reasonable. 30
(3) The chairperson may at his or her discretion, where he or sheconsiders that a decision of the Tribunal is of legal importance, pub-lish the decision in such manner as he or she considers reasonable.
(4) Nothing in subsections (1) to (3) shall be construed aspreventing the chairperson from allowing access, subject to such con- 35ditions as the chairperson considers reasonable, by persons, for thepurposes of bona fide legal research, to previous decisions of theTribunal under section 96(2).
(5) This section is without prejudice to section 87.
108.—(1) The Minister may, where he or she considers it neces- 40sary or expedient to do so, give a direction in writing to the Tribunal
122
to accord priority to such appeal, appeals or class or classes of appealas is or are specified in the direction.
(2) In giving a direction under subsection (1) the Minister shallhave regard to the need for fairness and efficiency in dealing withappeals under this Part, and to such of the following as the Minister5considers appropriate:
(a) the grounds of the protection application;
(b) the country of origin of the protection applicant;
(c) any family relationship between protection applicants;
(d) the age of the protection applicant and, in particular, of10any person under the age of 18 years in respect of whoma protection application is made;
(e) the date on which the protection application was made;
(f) whether the country of origin of the protection applicantis a country for the time being designated as a safe coun-15try of origin under section 117, and the protection appli-cant has not shown any reasonable grounds for consider-ing that, notwithstanding that designation, he or she, inhis or her particular circumstances, is entitled to protec-tion in the State;20
(g) whether the protection applicant is a person to whomsection 73 applies;
(h) whether the protection applicant had previously made aprotection application in the State;
(i) whether the protection applicant had, or in the opinion of25the Minister could have, lodged a prior protection appli-cation in another country, including a safe third country;
(j) whether, in the opinion of the Minister—
(i) there are considerations of national security, publicsecurity, public order and public policy (“ordre30public”),
(ii) there are special circumstances regarding the welfareof the protection applicant or the welfare of familymembers of the protection applicant,
(iii) the protection application does not show on its face35grounds for the contention that the protection appli-cant is in need of protection,
(iv) the protection applicant has made false or misleadingrepresentations in relation to his or her protectionapplication, including by withholding relevant infor-40mation or documents with respect to his or her ident-ity or nationality that could have a negative impacton the decision,
(v) the protection applicant has made inconsistent, con-tradictory, improbable or insufficient rep-45resentations,
123
Protectiondeclaration.
(vi) the protection applicant has not complied with his orher duty to co-operate in the investigation of his orher protection application under section 86, or
(vii) the protection application was not made at the earliestopportunity after the protection applicant’s arrival in 5the State.
(3) The Tribunal shall comply with a direction given to it undersubsection (1).
Chapter 5
Protection declarations and permits 10
109.—(1) Where—
(a) the Minister makes a determination, referred to in section88(3)(a) or (b), or
(b) the Tribunal recommends, under section 96(2)(b),
that a protection applicant is entitled to protection in the State as a 15refugee or as a person eligible for subsidiary protection, the Ministershall, subject to subsections (2) and (7), as soon as possible thereaftergrant the applicant a protection declaration.
(2) The Minister shall not grant a protection declaration where heor she has made a determination, or the Tribunal has affirmed, that 20the protection applicant is not entitled to protection in the State.
(3) A protection declaration shall, subject to section 111, remainin force until it is established that the person to whom it was grantedis no longer entitled to a protection declaration.
(4) The following conditions shall apply to a protection declar- 25ation granted to a person under subsection (1) for so long as thatdeclaration remains in force:
(a) the person shall—
(i) while present in the State, be lawfully present in theState, 30
(ii) be entitled, subject to section 111, to reside in theState, and
(iii) be entitled, subject to section 115, to the same rightsof travel to and from the State (other than to his orher country of origin) as those to which Irish citizens 35are entitled;
(b) the person shall be entitled to seek and enter employment,to engage in any business, trade or profession and to haveaccess to education and training in the State in like man-ner and to the like extent in all respects as an Irish citizen; 40
(c) the person shall be entitled to receive, upon and subjectto the same conditions applicable to Irish citizens, thesame medical care and the same social welfare benefitsas those to which Irish citizens are entitled;
124
(d) the person shall be granted, in accordance with section 110,a protection permission.
(5) Where a person who has been granted a protection declar-ation satisfies the standard eligibility requirements specified insection 46(4), he or she may apply to the Minister for a long-term5residence permission.
(6) In the application of subsection (4), due regard shall be hadto the specific situation of vulnerable persons such as persons underthe age of 18 years (whether or not unaccompanied), disabled per-sons, elderly persons, pregnant women, single parents with children10under the age of 18 years and persons who have been subjected totorture, rape or other serious forms of psychological, physical or sex-ual violence.
(7) The Minister may refuse to grant a protection declarationwhere—15
(a) there are reasonable grounds for regarding the protectionapplicant as a danger to the security of the State, or
(b) the protection applicant, having been by a final judgmentconvicted, whether in the State or not, of a particularlyserious crime, constitutes a danger to the community of20the State.
(8) The Minister shall send a notice in writing of the grant of or,as the case may be, the refusal under subsection (7) to grant, a pro-tection declaration to a protection applicant.
(9) The Minister shall notify the High Commissioner of the grant25of or, as the case may be, the refusal under subsection (7) to grant,a protection declaration to a protection applicant.
(10) (a) Where, following an investigation under section 83, theMinister’s determination under section 88(2) is onereferred to in section 88(3)(c), the notice referred to in30subsection (8) shall inform the applicant that, subject tosection 75(4), his or her protection application entry per-mission has expired.
(b) Where, following an appeal under section 92, the Tribunalhas affirmed a determination of the Minister that a pro-35tection declaration shall not be granted to a protectionapplicant, the notice referred to in subsection (8) shallinform the applicant that his or her protection applicationentry permission has expired.
(c) Where paragraph (a) or (b) applies, and the Minister’s40determination under section 88(2) is one referred to insection 88(3)(c), the notice referred to in subsection (8)shall include—
(i) a statement that the protection applicant is obliged toleave the State by the date specified in the notifi-45cation or may be removed from the State in accord-ance with the provisions of this Act, and
(ii) a statement of the effect of sections 6 and 66.
125
Protectionpermission andpermit.
Revocation ofprotectiondeclaration.
110.—(1) A person to whom a protection declaration has beengranted under section 109 shall be granted a protection permission.
(2) A protection permission shall, without prejudice to section111—
(a) permit the holder to remain in the State for a specified 5period of not less than 3 years, and
(b) unless compelling reasons of national security or publicpolicy (“ordre public”) otherwise require, be renewable.
(3) A person to whom a protection permission has been granted,and who wishes to have it renewed, shall apply for renewal of that 10permission not later than 21 days before it expires.
(4) An application for the renewal of a protection permission isvalid if it—
(a) is made by the applicant in person at his or her relevantimmigration area office, and 15
(b) is accompanied by—
(i) the most recently issued protection permit held by theapplicant (whether or not it has expired), and
(ii) the applicant’s travel document (if any).
(5) A person who contravenes subsection (3) is guilty of an 20offence and liable, on summary conviction, to a fine not exceeding€100.
(6) A protection permission renewed in accordance with subsec-tion (4) shall be valid for a specified period of not less than 3 years.
(7) Where the Minister grants a protection permission, he or she 25shall issue or cause to be issued a protection permit to the personconcerned.
(8) Sections 44 (other than section 44(5)) and 45 shall apply to aprotection permit as if it were a residence permit.
(9) A protection permit ceases to be valid, and the person to 30whom it had been issued shall return it to the Minister without delay,after it expires, and the person’s protection permission is notrenewed in accordance with this section.
111.—(1) The Minister shall revoke a protection declarationgranted to a person if satisfied that— 35
(a) the person should have been or is excluded from protec-tion under section 73,
(b) the person has, in accordance with section 74, ceased to bea refugee or a person eligible for subsidiary protection, or
(c) misrepresentation or omission of facts, whether or not 40including the use of false documents, by the person wasdecisive in the Minister’s decision to grant protection.
126
(2) The Minister may revoke a protection declaration issued to aperson determined to be a refugee if satisfied that—
(a) there are reasonable grounds for regarding the person asa danger to the security of the State, or
(b) the person, having been by a final judgment convicted,5whether in the State or not, of a particularly seriouscrime, constitutes a danger to the community of the State.
(3) The Minister shall not, on the grounds specified in paragraph(e) or (f) of section 74(1) revoke a protection declaration granted toa person determined to be a refugee where the Minister is satisfied10that the person concerned is able to invoke compelling reasons aris-ing out of previous persecution for refusing to avail himself or herselfof the protection of the country of his or her nationality or for refus-ing to return to the country of his or her former habitual residence,as the case may be.15
112.—(1) Where the Minister proposes, under section 111, torevoke a protection declaration, he or she shall—
(a) notify, in writing, the person concerned, in a language thathe or she may reasonably be supposed to understand, ofthe Minister’s proposal, and20
(b) send a copy of the notification to the person’s legal rep-resentative (if known) and to the High Commissioner.
(2) A notification under subsection (1) shall include—
(a) a statement of the reasons for the proposal,
(b) if it is proposed to make a non-return order under section2555 in conjunction with the proposed revocation, a state-ment of the—
(i) proposal and of the reasons for it, and
(ii) proposed exclusion period,
(c) a statement that the person concerned may, within 1530working days of the sending of the notification, make rep-resentations in the prescribed manner to the Minister—
(i) as to why the protection declaration should not berevoked,
(ii) in relation to any proposal to make a non-return35order or the proposed exclusion period, if applic-able, and
(iii) as to why the person, in the event of the protectiondeclaration being revoked, should be granted per-mission to reside in the State, and40
(d) a statement of—
(i) the consequences specified in subsection (3), and
(ii) the effect of subsection (8) and section 66.
127
Procedure forrevocation ofprotectiondeclaration.
(3) The consequences referred to in subsection (2)(d)(i) are thefollowing:
(a) where no representations are received within the timeperiod specified in subsection (2)(c), the Minister may—
(i) revoke the protection declaration under section 111, 5and
(ii) where he or she determines that the person shouldnot be granted permission to reside in the State, pro-ceed to make the non-return order referred to insubsection (2)(b); 10
(b) where the Minister decides to revoke a protection declar-ation and not to grant the person permission to reside inthe State, then, subject to subsection (11), the person isunlawfully present in the State, and may be removedfrom the State in accordance with the provisions of this 15Act.
(4) In determining whether to revoke a protection declarationunder section 111 in accordance with this section the Minister shallhave regard to all representations made to him or her under subsec-tion (2)(c). 20
(5) Where, under subsection (4), the Minister has determined thata protection declaration should be revoked under section 111, heor she shall then determine whether the person should be grantedpermission to reside in the State.
(6) In determining whether a person to whom subsection (5) 25applies should be granted permission to reside in the State, the Mini-ster shall have regard to—
(a) (i) humanitarian considerations,
(ii) the common good,
(iii) considerations of national security, public security, 30public order and public policy (“ordre public”),
(iv) the age of the person,
(v) the duration of residence in the State of the person,
(vi) the family and domestic circumstances of the person,
(vii) the nature of the person’s connection with the State, 35if any,
(viii) the employment (including self-employment) recordof the person,
(ix) the employment (including self-employment) pros-pects of the person, 40
(x) the character and conduct of the person both withinand (where relevant and ascertainable) outside theState (including any criminal convictions),
(xi) whether, in the event of the person being removedfrom the State, the sending of him or her to any state 45
128
or territory that he or she would be permitted toenter would be a refoulement,
and
(b) any representations made to the Minister under subsec-tion (2)(c).5
(7) The Minister shall notify the person concerned in writing, in alanguage that he or she may reasonably be supposed to understand—
(a) of the Minister’s decision as to whether the protection dec-laration is to be revoked,
(b) if the declaration is to be revoked—10
(i) of the reasons for that decision, and
(ii) of the Minister’s decision as to whether the personconcerned will be granted permission to reside in theState, and
(c) if the person concerned will not be granted permission to15reside in the State, of the date by which the person mustleave the State.
(8) Where the Minister decides to revoke a protection declar-ation, the person concerned may, within 15 working days of the send-ing of the notification under subsection (7), appeal to the High Court20against the decision.
(9) On hearing an appeal under subsection (8), the High Courtmay, as it thinks proper—
(a) affirm the decision appealed against, or
(b) direct the Minister not to revoke the protection dec-25laration.
(10) A decision to revoke a protection declaration has effect—
(a) where no appeal to the High Court is brought against thedecision of the Minister, from the date on which theperiod for making such an appeal expires, or30
(b) where an appeal to the High Court is brought against thedecision of the Minister—
(i) unless the High Court issues a direction under subsec-tion (9)(b), from the date on which the High Court,under subsection (9)(a), affirms the decision, or35
(ii) as the case may be, from the date of withdrawal ofthat appeal.
(11) A person to whom subsection (3)(b) applies shall not berequired to leave the State until a decision to revoke a protectiondeclaration has effect in accordance with subsection (10).40
(12) Where a protection declaration is revoked under section 111in accordance with this section, the protection permission granted,and the protection permit issued, under section 110 shall cease to be
129
Programmerefugees, etc.
Temporaryprotection.
valid, with effect from the date of the revocation, and the protectionpermit shall be returned to the Minister without delay.
113.—(1) In this section, a “programme refugee” means a personto whom permission to enter and remain in the State for resettle-ment, or for temporary protection other than temporary protection 5provided for in section 114, has been given by the Government andwhose name is entered in a register established and maintained bythe Minister, whether or not such person is a refugee within themeaning of the definition of “refugee” in section 67, for the purposesof this section. 10
(2) A programme refugee shall be granted a residence permission.
(3) The conditions attaching to a residence permission under sub-section (2) shall be those referred to in section 109(4)(a)(iii), (b)and (c).
(4) The Minister may, after consultation with the Minister for 15Foreign Affairs, enter into agreements with the High Commissionerfor the reception and resettlement in the State of programmerefugees.
114.—(1) In this section—
“temporary protection” means a procedure of exceptional character 20to provide, in the event of a mass influx or imminent mass influx ofdisplaced foreign nationals who are unable to return to their countryof origin, immediate and temporary protection; and
“Council Directive” means Council Directive 2001/55/EC of 20 July2001 on minimum standards for giving temporary protection in the 25event of a mass influx of displaced persons and on measures promot-ing a balance of efforts between Member States in receiving suchpersons and bearing the consequences thereof and any otherDirective amending or replacing it9.
(2) Subject to subsection (3), this section applies to a foreign 30national to whom, following a Council Decision under Article 5 ofthe Council Directive establishing the existence of a mass influx ofdisplaced persons, permission to enter and remain in the State fortemporary protection as part of a group of persons has been givenby the Government and whose personal data (that is to say, name, 35nationality, date and place of birth, marital status, familyrelationship) are entered in a register established and maintained forthe purposes of this section by the Minister.
(3) The Minister may exclude a foreign national from temporaryprotection if— 40
(a) there are serious reasons for considering that—
(i) he or she has committed a crime against peace, a warcrime, or a crime against humanity, as defined in theinternational instruments drawn up to make pro-vision in respect of such crimes, or 45
9O.J. No. L212, 07.08.2001, p. 12
130
(ii) he or she has been guilty of acts contrary to the pur-poses and principles of the United Nations,
(b) there are reasonable grounds for regarding him or her asa danger to the security of the State,
(c) the Minister is of opinion that he or she constitutes a5danger because he or she was convicted by a finaljudgment of a particularly serious crime, whether in theState or elsewhere, or
(d) there are serious reasons for considering that he or she hascommitted a serious non-political crime outside the State10prior to his or her entry into the State.
(4) In considering whether to exclude a foreign national fromtemporary protection under paragraph (c) or (d) of subsection (3),the Minister shall weigh the reasons underlying the Council Decisionconcerned as they relate to the foreign national against the nature of15the crime of which the foreign national concerned is suspected.
(5) Subsections (3)(d) and (4) apply both to the participants inand the persons who have instigated a crime referred to in subsec-tion (4).
(6) The Minister shall grant to a foreign national to whom subsec-20tion (2) applies a residence permission and shall—
(a) issue him or her with—
(i) if required, a visa or transit visa free of charge, or
(ii) a residence permit,
and25
(b) provide him or her with information, in a language that heor she may reasonably be supposed to understand, settingout the provisions of this section relating to temporaryprotection in the State.
(7) Subject to subsection (8), a residence permission granted30under subsection (6)—
(a) shall be valid for one year, and
(b) may be renewed for a maximum period of one furtheryear.
(8) A residence permission granted under subsection (6) may be35revoked—
(a) following a decision by the Council under the CouncilDirective that the requirement for temporary protectionhas ended,
(b) upon the transfer of residence of the holder to another40Member State, or
131
(c) where the Minister decides that the holder should havebeen excluded from temporary protection under subsec-tions (3) and (4).
(9) Section 52 shall not apply to a decision to revoke a residencepermission under paragraph (a) or (b) of subsection (8). 5
(10) Where, during the validity of a residence permission grantedunder subsection (6), a foreign national to whom subsection (2)applies seeks to enter another Member State or has entered it with-out authorisation, the Minister shall, in co-operation with the com-petent authority of that Member State, make arrangements for the 10return of the person to the State.
(11) Without prejudice to subsection (8), a foreign national towhom subsection (2) applies shall be entitled to the same rights andprivileges referred to in section 109(4) as if he or she had beengranted a protection declaration. 15
(12) The Minister shall co-operate with the competent authoritiesof a Member State in relation to—
(a) the transfer to a Member State of a foreign national towhom subsection (2) applies,
(b) the transfer from a Member State to the State of a foreign 20national to whom subsection (2) applies, and
(c) the reunification, either in the State or in a Member State,of family members of a foreign national to whom subsec-tion (2) applies.
(13) The Minister may prescribe documentation to be used for 25the purpose of enabling and facilitating transfers and reunificationsreferred to in subsection (12).
(14) For the purposes of subsection (12), the Minister may provideto a Member State, insofar as they are available—
(a) personal data relating to foreign nationals (that is to say, 30name, nationality, date and place of birth, marital status,family relationship),
(b) travel documents relating to foreign nationals,
(c) documents concerning evidence of family ties relating toforeign nationals and families of foreign nationals (such 35as marriage certificates, birth certificates and certificatesof adoption),
(d) other information required to establish foreign nationals’identity or family relationships,
(e) residence permits and decisions concerning the grant or 40refusal of visas or residence permissions to foreignnationals by the Minister, and documents forming thebasis of those decisions,
(f) applications for visas or entry or residence permissionssubmitted by foreign nationals and pending in the State, 45and the stage reached in the processing of these,
132
(g) any corrected information within paragraphs (a) to (f)which becomes available.
115.—(1) Subject to subsection (3), the Minister, on applicationby the person concerned—
(a) shall issue a travel document to a person to whom a pro-5tection declaration has been granted as a refugee, and
(b) may issue a travel document to—
(i) a person to whom, as a member of the family or adependent member of the family of a personreferred to in paragraph (a), a residence permission10has been granted under section 116(4), or
(ii) a programme refugee, within the meaning of section113.
(2) Subject to subsections (3) and (4), the Minister, on applicationby the person concerned—15
(a) shall issue a travel document to a person to whom a pro-tection declaration has been granted as a person eligiblefor subsidiary protection, and
(b) may issue a travel document to a person to whom, as amember of the family of a person referred to in para-20graph (a), a residence permission has been granted undersection 116(4).
(3) The Minister need not issue a travel document to a personreferred to in subsection (1) or (2) if—
(a) the Minister has required that person to provide such25information as the Minister reasonably requires for thepurposes of his or her functions under this section andthe person has not done so, or
(b) the Minister considers that to issue it would not be in theinterests of national security, public security, public30health or public order or would be contrary to publicpolicy (“ordre public”).
(4) The Minister need not issue a travel document to a personreferred to in subsection (2) unless the Minister is satisfied that—
(a) the person is unable to obtain a travel document from the35relevant authority of the country of his or her nationalityor, as the case may be, former habitual residence, and
(b) serious humanitarian reasons exist that require the per-son’s presence in another state.
(5) An application under subsection (1) or (2) shall be in writing40and—
(a) in such form as may be prescribed,
(b) accompanied by such information as may be prescribed,being information that the Minister reasonably requires
133
Issue of traveldocuments byMinister.
Member of familyof person inrelation to whomprotectiondeclaration is inforce.
for the purposes of his or her functions under thissection, and
(c) accompanied by such fee (if any) as may be prescribed.
(6) A travel document shall be in the prescribed form.
(7) In the application of this section and section 116 due regard 5shall be had to the specific situation of vulnerable persons such aspersons under the age of 18 years (whether or not unaccompanied),disabled persons, elderly persons, pregnant women, single parentswith children under the age of 18 years and persons who have beensubjected to torture, rape or other forms of psychological, physical 10or sexual violence.
116.—(1) (a) A person in relation to whom a protection declarationis in force (in this section referred to as the “sponsor”)may apply to the Minister for permission to be grantedto a member of his or her family or, as the case may be, 15a dependent member of his or her family, to enter andreside in the State.
(b) An application under paragraph (a) shall be in the pre-scribed form.
(2) The Minister shall notify the High Commissioner of the mak- 20ing of an application under subsection (1).
(3) (a) The Minister shall investigate, or cause to be investigated,an application under subsection (1) to determine—
(i) the relationship between the sponsor and the personwho is the subject of the application, 25
(ii) the domestic circumstances of the person who is thesubject of the application, and
(iii) such other matters as the Minister considers necessaryfor the purposes of an investigation under thissubsection. 30
(b) It shall be the duty of the sponsor and the person who isthe subject of the application to co-operate in the investi-gation under paragraph (a).
(c) In complying with paragraph (b), the sponsor and the per-son who is the subject of the application shall furnish to 35the Minister as soon as reasonably practicable, all infor-mation in his or her possession, control or procurementrelevant to the application.
(d) The Minister may refuse to grant an application undersubsection (1) where the sponsor or the person who is the 40subject of the application, or both, fail to comply withparagraph (b).
(4) (a) Subject to subsection (5), if the Minister is satisfied thatthe person who is the subject of the application is amember of the family of the sponsor, the Minister shall 45grant that person a residence permission, and the personshall thereupon be entitled to the rights and privilegesspecified in section 109(4)(a)(iii), (b) and (c) for such
134
period as the sponsor is, as a person entitled to protec-tion, entitled to remain in the State.
(b) Subject to subsection (5), if the Minister is satisfied thatthe person who is the subject of the application is adependent member of the family of a sponsor, the Mini-5ster may grant that person a residence permission andthe person shall thereupon be entitled to the rights andprivileges specified in section 109(4)(a)(iii), (b) and (c)for such period as the sponsor is, as a person entitled toprotection, entitled to remain in the State.10
(5) The Minister may, on any of the grounds specified in subsec-tion (6)—
(a) refuse to grant permission to enter and reside in the Stateto a person referred to in subsection (4), or
(b) revoke any permission to reside in the State given to any15such person.
(6) The grounds referred to in subsection (5) are that—
(a) it is in the interests of national security, public security,or public order or necessary for reasons of public policy(“ordre public”),20
(b) the person is, under section 73, excluded from being a refu-gee or a person eligible for subsidiary protection,
(c) the person obtained his or her permission on the basis ofinformation or documentation which was false or mis-leading, and25
(d) the protection declaration granted to the sponsor isrevoked under section 111.
(7) In subsection (4)—
“dependent member of the family”, in relation to a sponsor, meansany grandparent, parent, brother, sister, child, grandchild, ward or30guardian of the sponsor who is—
(a) dependent (within the meaning of subsection (8)) on thesponsor, or
(b) suffering from a mental or physical incapacity to suchextent that it is not reasonable to expect him or her to35maintain himself or herself fully;
“member of the family”, in relation to a sponsor, means—
(a) where the sponsor is married, his or her spouse, providedthat the marriage is subsisting on the date on which hisor her protection application under section 81 is made,40
(b) where the sponsor is, on the date of the application undersubsection (1), under the age of 18 years and not married,either or both of his or her parents, or
(c) a child of the sponsor who is, on the date of the applicationunder subsection (1), under the age of 18 years and not45married.
135
Safe countries oforigin.
(8) For the purposes of determining whether a person who is thesubject of an application under subsection (1) is dependent on thesponsor, the Minister shall have regard to—
(a) any information furnished under subsection (1) or (3)(c)by the sponsor or the person who is the subject of the 5application,
(b) the results of the investigation under subsection (3), and
(c) such other matters as the Minister may prescribe,including—
(i) the financial relationship between the sponsor and the 10person who is the subject of the application,
(ii) whether the sponsor and the person who is the subjectof the application have been residing together priorto the date on which his or her protection applicationunder section 81 was made, and the length of time 15during which they had so resided,
(iii) where they had not previously resided together, thenature and extent of contact between the sponsorand the person who is the subject of the application,
(iv) the age and health of the person who is the subject of 20the application,
(v) the nature and extent of any financial or other supportprovided by the sponsor to the person who is thesubject of the application,
(vi) the financial resources of the sponsor, 25
(vii) whether there are any court orders in place on foot ofwhich the sponsor has guardianship or custody of theperson who is the subject of the application, and
(viii) the immigration history of the sponsor and the personwho is the subject of the application. 30
Chapter 6
Safe Countries
117.—(1) The Minister may, by order made after consultationwith the Minister for Foreign Affairs, designate a country as a safecountry of origin. 35
(2) The Minister may make an order under subsection (1) only ifhe or she is satisfied that, on the basis of the legal situation, theapplication of the law within a democratic system and the generalpolitical circumstances, it can be shown that, in the country con-cerned, there is generally and consistently no persecution, construed 40in accordance with section 71, no torture or inhuman or degradingtreatment or punishment and no threat by reason of indiscriminateviolence in situations of international or internal armed conflict.
(3) In making the assessment referred to in subsection (2), theMinister shall take account of, among other things, the extent to 45
136
which protection against persecution or mistreatment is provided inthe country concerned by—
(a) the relevant laws and regulations of the country and themanner in which they are applied,
(b) observance of the rights and freedoms laid down in the5European Convention on Human Rights, the Inter-national Covenant for Civil and Political Rights and theConvention against Torture, in particular the rights fromwhich derogation cannot be made under Article 15(2) ofthe European Convention on Human Rights,10
(c) respect of the non-refoulement principle according to theGeneva Convention, and
(d) provision for a system of effective remedies againstviolations of these rights and freedoms.
(4) The determination as to whether an order under subsection15(1) should be made in relation to a particular country shall be basedon, among other things, available information from other MemberStates, the High Commissioner, the Council of Europe and otherrelevant international organisations.
(5) Where the Minister considers it appropriate, he or she shall,20in consultation with the Minister for Foreign Affairs, review a desig-nation under subsection (1) having regard to the matters specified insubsections (2) to (4).
(6) The Minister shall notify the European Commission of themaking, amendment or revocation of an order under subsection (1).25
(7) In this section—
“Convention against Torture” means the Convention against Tortureand other Cruel, Inhuman or Degrading Treatment or Punishmentadopted by Resolution 39/46 of the General Assembly of the UnitedNations on 10 December 1984;30
“country” includes part of a country;
“European Convention on Human Rights” means the Conventionfor the Protection of Human Rights and Fundamental Freedomsdone at Rome on the 4th day of November, 1950;
“International Covenant on Civil and Political Rights” means the35International Covenant on Civil and Political Rights adopted byResolution 2200A (XXI) of the General Assembly of the UnitedNations on 16 December 1966.
118.—(1) The Minister may, by order made after consultationwith the Minister for Foreign Affairs, designate a country as a safe40third country where the Minister is satisfied that a protection appli-cant will be treated in that country in accordance with the principlesspecified in subsection (2).
(2) The principles referred to in subsection (1) are the following:
(a) life and liberty are not threatened on account of race,45religion, nationality, membership of a particular socialgroup or political opinion;
137
Safe third countries.
Safe third country—transfer of persons.
(b) the principle of non-refoulement in accordance with theGeneva Convention is respected;
(c) the prohibition of removal, in violation of the right to free-dom from torture and cruel, inhuman or degrading treat-ment as laid down in international law, is respected; and 5
(d) the possibility exists to request refugee status and, if foundto be a refugee, to receive protection in accordance withthe Geneva Convention.
(3) The Minister shall not make an order under subsection (1) inrespect of a country unless that country and the State are parties to 10an agreement which provides for—
(a) the prompt transfer to that country of a protection appli-cation made in the State by a person who has arrivedfrom that country, and
(b) the prompt transfer to the State of a protection application 15made in that country by a person who has arrived fromthe State.
(4) A protection application shall not be transferred to a safethird country pursuant to an agreement referred to in subsection (3)unless the removal to that country of the person who made the appli- 20cation would be reasonable on the basis of a connection he or shehas with that country.
(5) An order under subsection (1) may make provision for suchconsequential, incidental, ancillary and supplementary matters as theMinister considers necessary or expedient. 25
(6) The Minister shall, from time to time, notify the EuropeanCommission of the countries that are designated as safe third coun-tries under subsection (1).
119.—(1) The Minister may make such regulations as appear tohim or her to be necessary or expedient for the purpose of giving 30effect to any agreement of the kind referred to in section 118.
(2) Without prejudice to the generality of subsection (1), regu-lations under this subsection may—
(a) specify the circumstances in which—
(i) a protection application shall— 35
(I) be investigated in the State,
(II) be transferred pursuant to any agreement of thekind referred to in section 118, and
(ii) a protection application made in a safe third countryshall be accepted for examination in the State pursu- 40ant to any agreement of the kind referred to insection 118,
(b) specify the procedure for making a determination referredto in paragraph (a),
138
(c) provide for an appeal against a determination to transfera protection application and for the procedure in relationto such an appeal,
(d) provide, where the regulations specify that the making ofan appeal shall not suspend the transfer of the protection5application or of the protection applicant, that suchtransfer is without prejudice to the appeal decision,
(e) require that a protection application shall not be investi-gated by the Minister until it has been decided whetherthe application should be transferred,10
(f) require that a protection application which is being investi-gated by the Minister shall be transferred,
(g) provide that, where a protection application has beentransferred to a safe third country, the person concernedshall be transferred to that safe third country,15
(h) provide for the investigation of a protection application bythe Minister notwithstanding that a safe third country hasresponsibility for examining the application,
(i) specify the measures to be taken for the purpose of thetransfer of a person whose protection application has20been transferred including, where necessary, the tempor-ary detention or restriction of the person, and
(j) provide for the temporary detention (for a period notexceeding 48 hours) until a decision on the mattersreferred to in paragraph (a) has been made, of a person25who, having arrived in the State directly from a safe thirdcountry, makes a protection application.
(3) The Minister may communicate to the authorities of a safethird country such information relating to a protection application orto the person making such application (including personal30information) as may be necessary for giving effect to an agreementof the kind referred to in section 118, but information concerning thegrounds on which a particular application for protection is based orthe grounds on which a decision concerning such an application isbased shall not be communicated under this section without the prior35consent of the person the subject of the application.
(4) Where a protection applicant is to be transferred under thissection—
(a) any investigation of the protection application shall beterminated,40
(b) the report referred to in section 88(1) shall not be preparedbut another report shall be prepared in writing, whichshall include a determination, together with the reasonsfor that determination, that the State is not the stateresponsible for determining whether the person is45entitled to protection, and
(c) the Minister shall notify in writing the protection appli-cant, and his or her legal representative (if known), ofthe transfer, which notification shall include—
(i) a copy of the report under paragraph (b),50
139
Council Regulationcountry— transferof persons.
(ii) a statement that the protection applicant’s protectionapplication entry permission has in accordance withsection 75, has ceased to be valid, and
(iii) a statement of the effect of paragraph (a).
120.—(1) The Minister may make such regulations as appear to 5him or her to be necessary or expedient for the purpose of givingeffect to the—
(a) transfer of a person from the State to a Council Regulationcountry, and
(b) transfer of a person to the State from a Council Regu- 10lation country.
(2) Without prejudice to the generality of subsection (1), regu-lations under that subsection may—
(a) provide for an appeal against a determination to transfera person from the State to a Council Regulation country 15and for the procedure in relation to such an appeal,
(b) provide, where the regulations specify that the making ofan appeal shall not suspend the transfer of a person fromthe State to a Council Regulation country, that suchtransfer is without prejudice to the appeal decision, 20
(c) specify the measures to be taken for the purpose of thetransfer of a person from the State to a Council Regu-lation country, including, where necessary, the temporarydetention or restriction of the person,
(d) provide that, where a protection applicant withdraws his 25or her protection application before the Minister hasdetermined whether it will be investigated in the State ortransferred to a Council Regulation country, the Ministermay make that determination as if the application hadnot been withdrawn, and 30
(e) provide for the temporary detention (for a period notexceeding 48 hours) of a protection applicant who hasarrived in the State directly from a Council Regulationcountry until a determination has been made as towhether he or she will be transferred. 35
(3) Where a protection applicant is to be transferred under thissection to a Council Regulation country—
(a) any investigation of the protection application shall beterminated,
(b) the report referred to in section 88(1) shall not be prepared 40but another report shall be prepared in writing, whichshall include a determination, together with the reasonsfor that determination, that the State is not the stateresponsible for determining whether the person isentitled to protection, and 45
(c) the Minister shall notify in writing the protection appli-cant, and his or her legal representative (if known), ofthe transfer, which notification shall include—
140
(i) a copy of the report under paragraph (b),
(ii) a statement that the protection applicant’s protectionapplication entry permission has, in accordance withsection 75, ceased to be valid, and
(iii) a statement of the effect of paragraph (a).5
(4) In this section—
“Council Regulation” means Council Regulation (EC) No.343/200310 of 18 February 2003 establishing the criteria and mechan-isms for determining the Member State responsible for examining anasylum application lodged in one of the Member States by a third-10country national or any Regulation amending or replacing thatRegulation;
“Council Regulation country” means any state to which the CouncilRegulation applies.
PART 815
Further Provisions
121.—(1) A person is guilty of an offence if he or she, whether inthe State or elsewhere, for any purpose connected with this Act, doesany of the following:
(a) makes a statement or provides information or documents20that are, and that he or she knows or believes to be or isreckless as to whether they are, false or misleading in amaterial particular;
(b) with intent to deceive, destroys or conceals, or attempts todestroy or conceal, his or her identity document or an25identity document relating to another person;
(c) forges, fraudulently alters, attempts to forge or fraudu-lently alter or assists in or procures to be forged orfraudulently altered a document;
(d) sells, supplies, attempts to sell or supply, or has in his or30her possession for the purpose of sale or supply, a forgedor fraudulently altered document or a document relatingto another person, with or without the consent of thatperson;
(e) permits his or her identity document to be falsely used by35another person, or is reckless regarding such use of hisor her identity document by another person.
(2) A member of the Garda Síochána may—
(a) arrest without warrant a person whom he or she reason-ably suspects of committing or having committed an40offence under this section, and
(b) seize and retain any document referred to in subsection(1), which he or she reasonably suspects has been used,
10O.J. No. L50, 25.02.2003, p.1
141
Prohibition of falsedocuments etc.
Exchange ofinformation.
or is intended to be used, for any purpose under this Act,for use as evidence in any criminal proceedings for suchperiod as is reasonable or, if proceedings are commencedin which the document so seized is required for use inevidence, until the conclusion of the proceedings, and 5thereafter the Police (Property) Act 1897 shall apply tothe document so seized in the same manner as that Actapplies to property which has come into the possessionof the Garda Síochána in the circumstances mentioned inthat Act. 10
(3) Where in a prosecution of an offence under subsection (1) itis shown to a court that the accused committed any of the actsreferred to in paragraphs (a) to (e) of that subsection in circum-stances which give rise to the reasonable inference that such act wascommitted for any purpose connected with this Act, it shall be pre- 15sumed, unless the contrary is shown, that the act was committed forsuch purpose.
122.—(1) An information holder shall give the Minister such sen-sitive information as is in the information holder’s possession, controlor procurement. 20
(2) In subsection (1), “sensitive information” means informationabout one or more foreign nationals that—
(a) appears to the information holder to relate to nationalsecurity, public security or public order, or
(b) in the information holder’s opinion ought for reasons of 25public policy (“ordre public”) to be given to the Minister.
(3) Where an information holder (“requesting informationholder”) requests relevant information from another informationholder (“requested information holder”), the requested informationholder shall, as soon as practicable, give to the requesting infor- 30mation holder such relevant information as is in the requested infor-mation holder’s possession, control or procurement.
(4) Nothing in this Act shall be construed as compelling arequested information holder to give relevant information or sensi-tive information to a requesting information holder where, in the 35event that the requested information holder would be required todisclose or produce that information in legal proceedings, he or shewould be entitled to refuse to disclose or produce the informationon the grounds of legal professional privilege.
(5) Nothing in this Act shall be construed as compelling a 40requested information holder to give relevant information or sensi-tive information to a requesting information holder if that infor-mation would be subject to medical professional privilege, exceptrelevant information that discloses the fact that a particular personsought or received medical treatment or a report of a medical exam- 45ination referred to in section 27(4)(e).
(6) If an information holder (other than the Minister or the GardaSíochána) becomes aware of or obtains relevant information or sen-sitive information concerning the probable commission of an offenceunder this Act, he or she shall give that information to the Minister. 50
(7) Notwithstanding subsections (1) to (6)—
142
(a) the Minister may withhold relevant information or sensi-tive information on grounds of national security, publicsecurity, public order or public policy (“ordre public”),
(b) the Garda Síochána may withhold relevant information orsensitive information where the giving of the information5would be likely to prejudice the prevention, detection orinvestigation of offences or the apprehension or pros-ecution of offenders, and
(c) the Revenue Commissioners may withhold relevant infor-mation or sensitive information where the giving of the10information would be likely to prejudice the prevention,detection or investigation of revenue offences or theapprehension or prosecution of offenders.
(8) (a) In this section “relevant information” means informationabout a person, whether or not obtained after the com-15mencement of this section, that—
(i) where the Minister is the requesting informationholder, was provided for the purposes of a foreignnational’s obtaining a benefit or service referred toin paragraphs (a) to (h) of section 9(2), or for any20other purpose connected with the functions of therequested information holder concerned and isrequired—
(I) for the purposes of the operation and admini-stration of the law concerning the entry into,25presence in and departure and removal from theState of persons,
(II) for the purposes of ensuring the orderly regu-lation of migration, the integrity of the immi-gration system or the prevention and control of30the unlawful presence of persons in the State,
(III) for the purposes of establishing the identity,nationality or lawfulness of the presence in theState of the person or any other person,
(IV) for the purposes of establishing whether the per-35son or any other person is complying with theconditions of an entry or residence permissiongranted to him or her,
(V) investigating whether a person has committed anoffence under this Act, or40
(VI) the protection of national security, public secur-ity, public order or for reasons of public policy(“ordre public”),
and
(ii) where the Minister is the requested information45holder, was provided for any purpose connected withthis Act, and is required by the requesting infor-mation holder for any purpose connected with thefunctions of the requested information holder con-cerned, including the purposes of—50
143
(I) determining whether the person or any other per-son is entitled to any benefits or servicesreferred to in paragraphs (a) to (h) of section9(2), or
(II) investigating whether the person or any other 5person has committed an offence under this Actor any Act under which a benefit or servicereferred to in paragraphs (a) to (h) of section9(2) is provided.
(b) Without prejudice to the generality of paragraph (a), 10“relevant information” includes any of the following:
(i) a person’s name, including any name by which thatperson is or was otherwise known;
(ii) a person’s sex;
(iii) the addresses of all of his or her dwelling places in 15the State;
(iv) his or her date and place of birth;
(v) particulars of all documents sufficient to identify himor her;
(vi) such further information relating to him or her as may 20be prescribed;
(vii) where the person is a foreign national:
(I) his or her nationality and country of origin;
(II) the date, place and mode of each arrival by himor her in or, as the case may be, departure by 25him or her from, the State;
(III) whether, and the extent to which, he or she hassought, entered or has been in employment,including self-employment or has engaged inany business, trade or profession, in the State; 30
(IV) particulars of the permission, or permissions, onfoot of which he or she is, or has been, presentin the State;
(V) a photograph sufficient to identify him or her;
(VI) particulars of his or her travel document or such 35other document as may be required to identifyhim or her;
(VII) particulars, as may reasonably be required, of anyservices or benefits referred to in paragraphs (a)to (h) of section 9(2) sought by him or her from 40the requested information holder or provided tohim or her by the requested information holder;
(VIII) biometric information, if held by the requestedinformation holder;
144
(IX) such personal details of the kind referred to inthis subparagraph as may be prescribed, of anyof his or her family members, dependants orother members of his or her household, whetheror not such family members, dependants or5other members of his or her household are resi-dent in the State.
123.—(1) The Minister may—
(a) provide relevant information to, and receive relevantinformation from, another state, and10
(b) make arrangements with other states for those purposes.
(2) The Minister shall not, for the purposes of examining a protec-tion application—
(a) directly disclose information about a protection appli-cation (including the fact that the application has been15made) to any alleged actor of persecution or actor ofserious harm (within the meanings respectively given tothose terms by section 67) to which the applicationrelates, or
(b) seek any such information about a protection applicant20from such an actor in a way which would—
(i) directly inform the actor of the fact that a protectionapplication has been made by the applicant, or
(ii) be likely to jeopardise the safety of the applicant orhis or her dependants or the liberty or security of25other members of his or her family who are in his orher country of origin.
(3) In this section—
“relevant information”, in relation to a state or the State,means information about a person that—30
(a) (i) relates to the operation and administration of the lawconcerning the entry into, presence in, departure andremoval from the State or that state of persons, asthe case may be,
(ii) is required for the purposes of ensuring the orderly35regulation of migration, the integrity of the immi-gration system or the prevention and control of theunlawful presence of persons in the State or thatstate, as the case may be,
(iii) is required for the purposes of establishing the ident-40ity, nationality or lawfulness of the presence in theState or that state, as the case may be, of particularpersons, or
(iv) is necessary for the protection of national security,public security, public order, or for reasons of public45policy (“ordre public”) of the State or that state,
and
145
Exchange ofinformation: furtherprovisions.
(b) includes any of the following:
(i) the person’s name, including any name by which thatperson is or was otherwise known;
(ii) the person’s sex;
(iii) the addresses of all of his or her dwelling places in the 5State or another state;
(iv) his or her date and place of birth;
(v) particulars of all documents sufficient to identify himor her;
(vi) such further information relating to him or her as may 10be prescribed;
(vii) where the person is a foreign national:
(I) his or her nationality and country of origin;
(II) the date, place and mode of each arrival by himor her in or, as the case may be, departure by 15him or her from the State or that state, as thecase may be;
(III) whether, and the extent to which, he or she hassought, entered or has been in employment,including self-employment, or has engaged in 20any business, trade or profession, in the State orthat state;
(IV) particulars of the permission, or permissions, onfoot of which he or she entered or is, or hasbeen, present in the State or that state; 25
(V) a photograph sufficient to identify him or her;
(VI) particulars of his or her travel document and allother documents sufficient to identify him orher;
(VII) particulars, as may reasonably be required, of any 30services or benefits referred to in paragraphs (a)to (h) of section 9(2) sought by, or provided to,him or her in the State;
(VIII) particulars, as may reasonably be required, of anystate-funded services sought by, or provided to, 35him or her in that state;
(IX) biometric information, if held;
(X) details of his or her immigration history in theState or that state;
(XI) such personal details of the kind referred to in 40this subparagraph as may be prescribed, of anyof his or her family members, dependants orother members of his or her household, whetheror not such family members, dependants or
146
other members of his or her household are resi-dent in the State or that state;
and
“state” includes—
(a) a place or territory for whose external relations a state,5other than that place or territory, is (in whole or in part)responsible, and
(b) a place or territory for whose external relations thegovernment of a state, other than the government of thatplace or territory, is (in whole or in part) responsible.10
124.—(1) An authorised person may require a foreign national tofurnish to him or her biometric information in such form and in suchmanner as may reasonably be required, if that information isrequired for—
(a) the performance by an authorised person of any of his or15her functions under this Act,
(b) any purpose connected with the grant or renewal of a visa,entry permission, residence permission, long-term resi-dence permission, protection application entry per-mission or a protection permission under this Act, or the20conditions attaching to such visas or permissions,
(c) establishing the identity of a foreign national,
(d) establishing whether a foreign national is lawfully presentin the State,
(e) determining whether a foreign national is complying with25the conditions of his or her permission to be present inthe State, or
(f) any purpose connected with the removal of a foreignnational from the State.
(2) A requirement under subsection (1) shall be imposed on a30foreign national who is under the age of 14 years only in the pres-ence of—
(a) a parent of, or person who is taking responsibility for theforeign national concerned, or
(b) a person appointed in respect of the foreign national under35section 81(8).
(3) If and for so long as it appears to a person who is imposing orhas imposed a requirement under subsection (1) on a foreign nationalthat the foreign national is not under the age of 14 years, this sectionshall apply to the foreign national as if he or she were not under40that age.
(4) A foreign national who, on being required to provide bio-metric information under subsection (1), does not do so or providesit in a way which is false or misleading—
147
Provision ofbiometricinformation.
(a) shall, where he or she is a protection applicant, be deemednot to have made reasonable efforts to establish his orher identity for the purposes of sections 79(1)(c) and 81and to have failed to comply with section 86, and
(b) shall, in the case of a person who has been granted an 5entry or residence permission, be deemed to have failedto comply with a condition of that permission.
(5) The Minister shall cause to be kept, for the purposes of useand storage, and in such form as he or she considers appropriate,biometric information provided— 10
(a) under subsection (1), and
(b) by another state, in accordance with section 123.
(6) Biometric information referred to in subsection (5) may bekept and used, including for its comparison to other such infor-mation, for— 15
(a) any of the purposes referred to in subsection (1),
(b) the purposes of investigating whether a foreign nationalhas committed an offence under this Act,
(c) the purposes of investigating whether a foreign nationalhas committed a criminal offence punishable under the 20law of the place of conviction by imprisonment for aperiod of 12 months or by a more severe penalty, or
(d) the purposes of the protection of national security, publicsecurity, public order, or for reasons of public policy(“ordre public”). 25
(7) Biometric information provided under subsection (1), orobtained from another state, and kept under subsection (5), shall (ifnot earlier destroyed or deleted) be destroyed—
(a) subject to subsection , not later than 15 years after theinformation was provided or obtained from the foreign 30state, as the case may be, or
(b) not later than one month after the foreign national towhom it relates becomes an Irish citizen or satisfies theMinister that he or she has acquired citizenship ornationality of a Member State. 35
(8) Biometric information provided under subsection (1), orobtained from another state, and kept under subsection (5), may beretained for so long as the foreign national to whom that informationrelates is the subject of—
(a) a non-return order under section 55, 40
(b) a removal from the State under section 59, the periodreferred to in subsection (8) of that section not havingexpired,
(c) an exclusion order under section 132,
148
(d) an expulsion decision within the meaning of CouncilDirective 2001/40/EC of 28 May 200111 on the mutualrecognition of decisions on the expulsion of third countrynationals, which stands for the time being in force,
(e) an entry ban within the meaning of Council Directive52008/115/EC of the European Parliament and of theCouncil of 16 December 2008 on common standards andprocedures in Member States for returning illegally stay-ing third-country nationals12,
(f) any order or determination made by the Minister under10any enactment, or under any other power of the Minister,relating to the entry into, or presence or residence in, theState, which requires the foreign national to leave theState or which prohibits the foreign national’s entry intoor presence in the State,15
(g) a request by—
(i) an international tribunal for his or her surrender,
(ii) the International Criminal Court for his or her arrestand surrender,
where the matter to which the request relates has not yet20been concluded by the tribunal or Court concerned,
(h) a European Arrest Warrant, within the meaning of theEuropean Arrest Warrant Act 2003, other than where—
(i) the foreign national concerned has been arrested andsurrendered, or25
(ii) it has been determined that he or she shall not bearrested and surrendered under Chapter I of Part 2of that Act or is otherwise not to be arrested andsurrendered under Part 3 of that Act,
or30
(i) a resolution of the Security Council of the United Nations,or a European act, requiring the State to prevent theentry into or transit through its territory of that foreignnational.
(9) Where a foreign national is required under any provision of35this Act to provide biometric information, any biometric informationso provided shall be deemed to have been provided under subsec-tion (1).
(10) A foreign national who fails to comply with a requirementunder subsection (1) is guilty of an offence.40
(11) For the purposes of this Part, a foreign national becomes anIrish citizen when—
(a) he or she is granted a certificate of nationality, or11O.J. No. L 149, 02.06.01, p 34.12O.J. No. L 348, 24.12.2008, p. 98.
149
Production of traveldocuments.
Requirement fortravel document:embarkation fromState.
(b) his or her birth is registered in the foreign births register,
under the Irish Nationality and Citizenship Acts 1956 to 2004.
(12) For the purposes of subsection (8), a foreign national is thesubject of an order, determination, request, warrant, resolution orEuropean act at a particular time only if that order, determination, 5request, warrant, resolution or European act remains in force atthat time.
(13) In this section—
“arrest and surrender” has the same meaning as it has in the Inter-national Criminal Court Act 2006; 10
“authorised person” means—
(a) the Minister,
(b) an immigration officer,
(c) a member of the Garda Síochána, or
(d) a member of the civilian staff of the Garda Síochána 15appointed under section 19 of the Garda Síochána Act2005;
“international tribunal” and “surrender” have the same meanings asthey have in the International War Crimes Tribunal Act 1998.
125.—(1) A foreign national present in the State shall, unless he 20or she gives a satisfactory explanation of the circumstances whichprevent him or her from so doing, produce on demand—
(a) a valid travel document relating to him or her, or
(b) where he or she is the holder of a permit under this Act,that permit. 25
(2) A foreign national who contravenes this section is guilty ofan offence.
(3) In this section—
“foreign national” means a person who is not an Irish citizen;
“on demand” means on demand made at any time by the Minister, 30an immigration officer or a member of the Garda Síochána.
126.—(1) A person (other than an Irish citizen or a national ofthe United Kingdom of Great Britain and Northern Ireland who istravelling directly to Great Britain, Northern Ireland, the ChannelIslands or the Isle of Man) embarking from the State shall, when 35requested to do so by an immigration officer—
(a) comply with such reasonable instructions as the immi-gration officer may give for the purposes of performinghis or her functions, and
150
(b) furnish to the immigration officer a travel document, avalid travel ticket and such other information in suchmanner as the immigration officer may reasonablyrequire for the purposes of that performance.
(2) Where an immigration officer requires a person to provide5biometric information—
(a) if the person is not a foreign national, the biometricinformation—
(i) need only be furnished to the extent necessary toenable the immigration officer to compare it with10any biometric information in a travel document fur-nished by the person, to establish that the traveldocument relates to him or her and to establish thevalidity of that travel document, and
(ii) is not otherwise authorised to be retained, stored or15compared to any other biometric information, and
(b) if the person is a foreign national, the biometricinformation—
(i) need only be furnished to the extent necessary toenable the immigration officer to—20
(I) compare it with any biometric information in theperson’s travel document or residence permitand to establish that the travel document relatesto him or her and to establish the validity of thattravel document, and25
(II) compare it with any biometric information con-tained in the Register of Foreign Nationals orthe Register of Protection Applicants, as thecase may be, for the purposes of ensuring thatthe person has complied with his or her obli-30gations under section 36(3) or 76(3), as the casemay be, and
(ii) is not otherwise authorised to be retained, stored orcompared to any other biometric information.
(3) A person who contravenes this section is guilty of an offence.35
127.—(1) (a) The Minister may, for the purposes of—
(i) the operation and administration of the law concern-ing the entry into, presence in, departure andremoval from the State of persons,
(ii) ensuring the orderly regulation of migration, the40integrity of the immigration system or the preventionand control of the unlawful presence of persons inthe State,
(iii) combating illegal immigration, smuggling of personsand human trafficking,45
(iv) establishing the identity and nationality of persons,
151
Advance passengerinformation.
(v) the operation and administration of the law concern-ing customs controls and formalities for the timebeing applicable in relation to persons, or goods intheir baggage or brought with them (including anyprohibition or restriction on the importation or 5exportation of goods), arriving in or departing fromthe State,
(vi) establishing whether persons are persons of concern,
(vii) law enforcement, including the protection of nationalsecurity, public security, public order or public policy 10(“ordre public”), or
(viii) international relations or interests abroad of the State(including arrangements entered into relating to theexchange of information),
require a carrier to collect and to transmit to him or her 15electronically, and in such form as may be prescribed,the information specified in subsection (2) in relation topersons travelling to or from the State, or about to travelto or from the State.
(b) The information specified in subsection (2) shall, in order 20to meet a purpose referred to in paragraph (a) and toenable the information to be shared with any person,body or agency referred to in subsection (6), be trans-mitted to the Minister—
(i) by the end of passenger boarding, and 25
(ii) 12 hours before departure of a vehicle on a journeythat is scheduled to be completed 2 hours or lessafter the departure of that vehicle.
(c) Where a carrier notifies the Minister that it is impossiblefor the information to be transmitted electronically, the 30Minister may agree to accept the transmission of theinformation in another way, so long as the information isreceived by the Minister in accordance with paragraph(b)(i) and (ii).
(2) The information referred to in subsection (1) is as follows: 35
(a) in relation to each person carried or to be carried on boardthe vehicle—
(i) the number and type of the travel document used byhim or her, as provided to the carrier concerned,
(ii) his or her nationality, as provided to the carrier 40concerned,
(iii) his or her full names, as provided to the carrierconcerned,
(iv) his or her date of birth, as provided to the carrierconcerned, 45
(v) the port at which the person is to arrive in or departfrom the State,
152
(vi) the mode of transport used,
(vii) the scheduled departure and arrival times of thevehicle,
(viii) the total number of passengers carried on thatvehicle, and5
(ix) the initial point of embarkation where the person istravelling to the State or, where the person is travel-ling from the State, the scheduled destination of thevehicle on which he or she is travelling;
(b) such other information as may be prescribed including—10
(i) the passenger’s name as it appears on his or her res-ervation,
(ii) the identity of any person who made the passenger’sreservation on his or her behalf,
(iii) the identity of any person other than the persons15referred to in subparagraphs (i) and (ii) who paid forthe passenger’s ticket,
(iv) the names of all other passengers appearing on thepassenger’s reservation,
(v) the ticket number,20
(vi) the date and place of issue of the ticket,
(vii) the method of payment for the ticket,
(viii) the details of any visa obtained for the purpose ofthe journey,
(ix) the passenger’s travel itinerary, including details (as25provided for under this section) of any further jour-neys booked or intended to be undertaken,
(x) if the passenger is travelling with a car or othervehicle, the vehicle registration number and, if thevehicle has a trailer, the trailer registration number30(if different from the vehicle registration number),
(xi) the passenger’s contact details, including telephonenumber and e-mail address, and
(xii) records related to checked-in luggage.
(3) (a) A carrier on whom a requirement under subsection (1) has35been imposed shall comply with that requirement.
(b) A carrier who fails to comply with a requirement undersubsection (1) is guilty of an offence.
(4) A requirement under subsection (1) may relate to—
(a) a journey to or from a destination or destinations specified40in the requirement,
153
(b) a series of journeys to or from the specified destination ordestinations, or
(c) all journeys to or from the specified destination or desti-nations within a period specified in the requirement.
(5) It is a defence for a person charged with an offence under a 5provision of this section to show that he or she took all reasonablesteps to ensure compliance with the provision.
(6) (a) The Minister may share information transmitted undersubsection (3) relating to a person of concern or a foreignnational with— 10
(i) the Garda Síochána for a purpose referred to in sub-paragraph (i), (ii), (iii), (iv), (vii) or (viii) of subsec-tion (1)(a),
(ii) the Revenue Commissioners—
(I) for a purpose referred to in subparagraph (v), 15(vii) or (viii) of subsection (1)(a), or
(II) where the information relates to a person of con-cern who has committed, or is suspected of hav-ing committed a revenue offence,
(iii) the Minister for Defence for a purpose referred to in 20subparagraph (vii) or (viii) of subsection (1)(a),
(iv) the Minister for Foreign Affairs for a purposereferred to in subparagraph (i), (ii) or (viii) of sub-section (1)(a),
(v) the UK Border Agency (or its equivalent) for a pur- 25pose referred to in subparagraph (i), (ii), (iii), (iv) or(viii)) of subsection (1)(a), and
(vi) any other agency or body, national or international,where the sharing of such data is required by a Euro-pean act or an international agreement. 30
(b) The Minister may share with the Minister for Social Pro-tection information transmitted under subsection (3)relating to a person of concern who has committed, or issuspected of having committed, an offence under theSocial Welfare Acts. 35
(c) The Minister may share with the Minister for Enterprise,Trade and Innovation and the National EmploymentRights Authority information transmitted under subsec-tion (3) relating to a person of concern who has commit-ted, or is suspected of having committed, an offence 40under the Employment Permits Acts 2003and 2006 andany other enactment relating to employment or economicactivity in the State.
(d) Any information shared under paragraph (a), (b) or (c)may also be used for the purpose of establishing or con- 45firming the identity and whereabouts of a person presentin or entering or leaving, or about to enter or leave, theState or another jurisdiction.
154
(7) (a) A carrier on whom a requirement under subsection (1) hasbeen imposed shall cause the information collected andtransmitted under subsection (3) to be deleted from thatcarrier’s records within 24 hours of transmission.
(b) A carrier who fails to comply with a requirement under5paragraph (a) is guilty of an offence.
(8) (a) The Minister shall, subject to paragraph (b), cause theinformation transmitted under subsection (3) to be storedin a temporary file and deleted within 24 hours of receipt.
(b) Where the information relates to a person of concern or a10foreign national and is required for any of the purposesreferred to in subsection (1)(a), subsection (9) shall apply.
(9) (a) The Minister shall cause to be established and maintained,for the purposes of storage and comparison, a record ofinformation to which subsection (8)(b) applies.15
(b) The information referred to in paragraph (a) shall bedestroyed—
(i) in the case of a person of concern—
(I) not later than 3 years after it was received undersubsection (3), if the person to whom the infor-20mation relates is lawfully present in the State atthat time, or
(II) when the person ceases to be a person ofconcern,
whichever is the earlier, and25
(ii) in the case of a foreign national who is lawfully in theState after the expiration of his or her entrypermission—
(I) not later than 8 years after it was received undersubsection (3), in the case of information30referred to in subparagraphs (i) to (v) or (viii)of subsection (2)(a), and not later than 2 yearsafter it was received under subsection (3) in thecase of other information, or
(II) not later than one month after the foreign35national to whom it relates becomes an Irishcitizen or satisfies the Minister that he or shehas acquired citizenship or nationality of aMember State,
whichever is the earlier, and40
(iii) in the case of a foreign national other than a foreignnational referred to in subparagraph (ii)—
(I) not later than 2 years after it was received undersubsection (3), or
(II) not later than one month after the foreign45national to whom it relates becomes an Irishcitizen or satisfies the Minister that he or she
155
has acquired citizenship or nationality of aMember State,
whichever is the earlier.
(10) An authorised officer may provide information to which sub-section (9)(a) refers to a person, body or agency referred to in subsec- 5tion (6), provided that the officer is satisfied, on foot of a writtenrequest from that person, body or agency, that the provision of suchinformation is necessary for a purpose mentioned in subsection (6)that is appropriate to that person, body or agency.
(11) In this section— 10
“authorised officer” means an officer of the Minister of a grade notbelow Assistant Principal Officer authorised by him or her to per-form the functions at subsection (10);
“National Employment Rights Authority” means the body dedicatedto employment rights compliance to be established or established 15(both on an interim and a statutory basis) and referred to in sections12(3) and 13(1) of Part Two of the publication entitled ‘Ten-YearFramework Social Partnership Agreement 2006-2015’, published onbehalf of the Department of the Taoiseach in June 2006 by theStationery Office and known as ‘Towards 2016’; 20
“person of concern” means a person who—
(a) has committed, or is suspected of having committed—
(i) an offence under this Act,
(ii) an offence in respect of which a European arrest war-rant could be issued in the State or a Member State 25under the European Arrest Warrant Act 2003,
(iii) an offence under the Employment Permits Acts 2003and 2006 or any other enactment relating to employ-ment or economic activity in the State,
(iv) a revenue offence, or 30
(v) an offence under the Social Welfare Acts,
(b) has engaged in or facilitated, or is suspected of havingengaged in or facilitated, illegal immigration, smugglingof persons or human trafficking,
(c) is a victim, or is suspected of being a victim, of any of 35the activities referred to in paragraph (a) or (b) and theretention of the information concerned in accordancewith subsection (9) would assist in the investigation of anyoffence committed under those paragraphs, or
(d) on the basis of information available to the Minister, 40including information provided to the Minister by anyperson, body or agency referred to in subsection (6)(a),the Minister is satisfied should be treated as a person ofconcern for any purpose mentioned in subsection (1)(a).
“smuggling of persons” shall be construed in accordance with Part 9. 45
156
128.—(1) Every prescribed carrier or carrier of a prescribed classshall display in the carrier’s vehicle, and every keeper of premiseswithin the meaning of section 129 shall display on the keeper’s prem-ises, a statutory notice in such manner as the Minister may prescribeand which states the effect of such of the provisions of this Act or of5such orders and regulations made under it and such directions underor about those provisions given by the Minister as the Minister mayspecify.
(2) A person who contravenes subsection (1) is guilty of anoffence.10
129.—(1) The keeper of premises shall maintain in the premisesa register in the prescribed form of all relevant foreign nationals and,if required to do so by an immigration officer or a member of theGarda Síochána, shall produce the register maintained by thatkeeper to that officer or member.15
(2) If the keeper of premises reasonably believes that he or shehas evidence of the commission of an offence under section 121, he orshe shall immediately provide that evidence to the Garda Síochána.
(3) A relevant foreign national shall provide the keeper of prem-ises with such information as the keeper may require to comply with20his or her obligations under this section.
(4) A keeper of premises shall not charge any fee to a foreignnational that is greater than the prescribed fee in respect of—
(a) the keeper’s compliance with his or her obligations underthis section, or25
(b) the keeper’s furnishing of any document that the foreignnational may require in order to comply with his or herobligations under this Act.
(5) The Minister may make regulations in relation to the follow-ing matters:30
(a) the maintenance of the register;
(b) the furnishing and gathering of information required forthe making of entries in the register;
(c) the period for which the register is to be maintained andretained;35
(d) the maximum fee that may be charged in respect of amatter referred to in subsection (4);
(e) the specification of which of the provisions of the regu-lations are to be penal provisions for the purposes of sub-section (8).40
(6) A keeper who contravenes subsection (1), (2), (4) or (5) isguilty of an offence.
(7) A foreign national who contravenes subsection (3) is guilty ofan offence.
157
Statutory notice.
Registers of foreignnationals in certainpremises, etc.
Appointment ofimmigrationofficers, etc.
(8) A person who contravenes a provision of regulations madeunder subsection (5) that is specified under paragraph (e) of thatsubsection as a penal provision is guilty of an offence.
(9) In this section,
“keeper” means— 5
(a) in relation to a premises described in paragraph (a) of thedefinition of “premises” in this subsection, its manager orproprietor, and
(b) in relation to a premises described in paragraph (b) of thatdefinition, the proprietor of the business or the person in 10charge of the educational establishment;
“premises” means—
(a) a hotel or other place in which lodging or sleeping accom-modation is provided on a commercial basis, and
(b) premises which is a prescribed educational establishment 15or an educational establishment of a class of prescribededucational establishments, or in which there is a pre-scribed business, or a business of a class of prescribedbusinesses, being carried on;
“relevant foreign national” means— 20
(a) in the case of a keeper of premises described in paragraph(a) of the definition of “premises” in this subsection, aforeign national staying at those premises, and
(b) in the case of a keeper of premises referred to in para-graph (b) of that definition, a foreign national enrolled 25in or attending that establishment.
130.—(1) The Minister may appoint such and so many persons ashe or she considers appropriate to perform the functions conferredon immigration officers by or under this Act (or such of those func-tions as may be specified in the appointment) and every person so 30appointed shall hold office on such terms and conditions as may bedetermined by the Minister at the time of the appointment, includingterms and conditions as to the period for which a person appointedunder this section will hold office.
(2) An officer appointed under this section shall be furnished with 35a warrant of appointment and shall, when exercising any power con-ferred on him or her under this Act, if requested by a personaffected, produce the warrant of appointment or a copy of it to thatperson.
(3) The Minister may revoke an appointment made under this 40section, or an appointment of an immigration officer to whom section161 applies, or amend the terms and conditions of such anappointment.
(4) The Minister may by order designate—
(a) an area to be an immigration area within which an immi- 45gration officer may perform the functions conferred onimmigration officers under this Act,
158
(b) a place to be an immigration area office for an immi-gration area.
131.—(1) An immigration officer may, for the purposes of per-forming functions under this Act—
(a) enter or be present in any place in the State which the5officer reasonably suspects to be in use as a port,
(b) at any port or other place in the State, stop, enter andboard any vehicle which the officer reasonably suspectsis being used for the conveyance of persons into or outof the State,10
(c) at any port in the State, stop and examine a person arriv-ing into or leaving the State whom the officer reasonablysuspects to be a foreign national,
(d) enter and be present in any premises within the meaningof section 129,15
(e) require, at any reasonable time, any person in a place toproduce to the officer any documents which are in thecontrol of that person,
(f) inspect and take copies of or extracts from any documentsin a place, including, in the case of information in a non-20legible form, copies of or extracts from such informationin a permanent legible form,
(g) require any person to give to the officer any other infor-mation which the officer may reasonably require,
(h) require any person by or on whose behalf data equipment25is or has been used or any person having charge of, orotherwise concerned with the operation of the dataequipment or any associated apparatus or material, toafford the officer all reasonable assistance in relation toit and assist in the retrieval of information connected with30the operation of such data equipment, apparatus ormaterial,
(i) have photographs taken of any thing in a place andremove the photographs from the place, and
(j) exercise the other powers conferred on him or her by or35under this Act or otherwise.
(2) A person who fails to comply with a request or requirementof an immigration officer under subsection (1) is guilty of an offence.
(3) Without prejudice to the powers conferred on an immigrationofficer by or under this section, if a judge of the District Court is40satisfied by information on oath of a member of the Garda Síochánanot below the rank of sergeant that—
(a) it is necessary for the purposes of the enforcement of thisAct that a place specified in the information be searchedby immigration officers or members of the Garda Síoch-45ána or both, or
159
Powers ofimmigrationofficers.
(b) there are reasonable grounds for suspecting that evidenceof or relating to an offence under this Act is to be foundat a place so specified,
the judge may issue a warrant for the search of the place and anypersons found at that place. 5
(4) A warrant issued under this section shall be expressed andshall operate to authorise a named immigration officer or memberof the Garda Síochána, accompanied by such and so many otherofficers, members or persons as the officer or member thinks neces-sary, to— 10
(a) enter, at any time or times within 7 days from the date ofthe issue of the warrant, on production if so requested ofthe warrant, and if necessary by the use of reasonableforce, the place specified in the warrant,
(b) search that place and any persons found there, and 15
(c) seize anything found there or in the possession of any per-son found there which an immigration officer or memberof the Garda Síochána named in the warrant reasonablybelieves to be evidence of or relating to an offence underthis Act. 20
(5) An immigration officer or member of the Garda Síochána act-ing under the authority of a warrant referred to in subsection (4)may—
(a) require any person present at the place where the searchis being carried out to give to the officer or member his 25or her name and address, and
(b) arrest without warrant any person who—
(i) obstructs or hinders or attempts to obstruct or hinderthe officer or member in the carrying out of his orher duties or any person accompanying the officer or 30member for the purposes of assisting the officer ormember in the carrying out of his or her duties,
(ii) fails to comply with a requirement under paragraph(a), or
(iii) in response to such a requirement, gives a name or 35address that the officer reasonably believes is falseor misleading.
(6) A person who—
(a) obstructs or hinders or attempts to obstruct or hinder animmigration officer or member of the Garda Síochána 40acting under the authority of a warrant referred to in sub-section (4),
(b) fails to comply with a requirement under subsection(5)(a), or
(c) in response to such a requirement, gives a false or mislead- 45ing name or address,
is guilty of an offence.
160
(7) In this section, “place” includes any land, dwelling, buildingor part of a building, premises, any vehicle and any structure or con-tainer used or intended for use for the carriage of persons or goods.
132.—(1) The Minister may, if he or she considers it necessary, inthe interests of national security, public security or public order or5for reasons of public policy (“ordre public”), by order exclude aforeign national specified in the order from the State, either indefin-itely or for such period as may be specified in the order.
(2) A foreign national who enters or is present in the State incontravention of an exclusion order is guilty of an offence.10
(3) This section is without prejudice to the regulations referred toin section 10(2).
133.—(1) The validity of any of the following shall not, in anylegal proceedings, be questioned otherwise than by way of an appli-cation for judicial review under Order 84 of the Rules of the Superior15Courts 1986 (S.I. No. 15 of 1986) (“the Order”):
(a) a refusal under section 29(1)(b) to permit a foreignnational to enter the State, where the foreign nationalconcerned is still present in the State;
(b) a refusal to grant a residence permission under section 35,20or a long-term residence permission under section 46;
(c) a refusal to renew a residence permission under section 40or a long-term residence permission under section 48;
(d) a modification of conditions of a residence permissionunder section 43;25
(e) a revocation of a residence permission, an enhanced resi-dence permission or a long-term residence permissionunder section 49;
(f) a confirmation under section 54 of a refusal to renew aresidence permission, or a revocation of a residence per-30mission or a determination under that section to thateffect;
(g) a removal from the State under section 59(1);
(h) a condition imposed on a foreign national under section 61or 62;35
(i) a determination under section 82(1) that a protectionapplication is inadmissible;
(j) a determination referred to in section 88(3)(b) or (c);
(k) the deeming under section 90 that a protection applicationhas been withdrawn;40
(l) a decision of the Tribunal under section 96(2);
(m) the deeming under section 95 that an appeal has beenwithdrawn;
161
Exclusion orders.
Judicial review:special provisions.
(n) a decision under section 97 to refuse to consent to a sub-sequent protection application being made;
(o) a refusal under section 109(7) to grant a protection dec-laration;
(p) a determination to transfer a protection application, or a 5decision on appeal to affirm such a determination, madepursuant to regulations made under section 119 or 120;
(q) a determination under section 138 that a marriage is a mar-riage of convenience;
(r) a requirement under Regulation 14 of the European Com- 10munities (Aliens) Regulations 1977 (S.I. No. 393 of 1977);
(s) a requirement under Regulation 14 of the European Com-munities (Right of Residence for Non-EconomicallyActive Persons) Regulations 1997 (S.I. No. 57 of 1997);
(t) an order under Regulation 20 of the European Communi- 15ties (Free Movement of Persons) (No. 2) Regulations2006 (S.I. No. 656 of 2006); or
(u) any other act, decision or determination under this Actprescribed under subsection (12).
(2) An application by a person for leave to apply for judicial 20review under the Order in respect of any of the acts, decisions ordeterminations referred to in subsection (1) shall—
(a) be made within the period of 14 days beginning on thedate on which the person was notified of the act, decisionor determination, and 25
(b) be made by motion on notice (grounded in the mannerspecified in the Order in respect of an ex parte motionfor leave) to the Minister and any other person specifiedfor that purpose by order of the High Court,
and such leave shall not be granted unless the High Court is satisfied 30that there are substantial grounds for contending that the act,decision, or determination is invalid or ought to be quashed.
(3) The High Court may not extend the period referred to in sub-section (2)(a) unless satisfied either—
(a) that— 35
(i) the applicant, having exercised reasonable diligence—
(I) did not become aware until after that period’sexpiration of the material facts on which thegrounds for his or her application are based, or
(II) became aware of those facts before that period’s 40expiration but only after such number of daysof that period had elapsed as would have madeit not reasonably practicable for the applicant tohave made his or her application for leavebefore that period’s expiration, and 45
162
(ii) his or her application for leave was made as soon aspracticable after the applicant became aware ofthose facts;
or
(b) that there are other exceptional circumstances relating to5the applicant as a result of which, through no fault ofthe applicant, his or her application was not made withinthat period.
(4) The determination of the High Court—
(a) of an application for leave to apply for judicial review10under the Order in respect of any act, decision or deter-mination referred to in subsection (1),
(b) of an application for such judicial review, or
(c) whether to extend, under subsection (3), the time for mak-ing an application,15
shall, subject to subsection (5), be final.
(5) An appeal shall lie from a determination of the High Courtreferred to in subsection (4), but only with the leave of the HighCourt, which leave shall be granted only where the High Court certi-fies that its decision involves a point of law of exceptional public20importance and that it is desirable in the public interest that anappeal should be taken to the Supreme Court.
(6) Subsection (4) shall not apply to a determination of the HighCourt in so far as it involves a question as to the validity of any lawhaving regard to the provisions of the Constitution.25
(7) Where, in the opinion of the High Court, the grounds putforward for contending that an act, decision or determinationreferred to in subsection (1) is invalid or ought to be quashed arefrivolous or vexatious, the Court may, (whether on application or onits own motion) by its order, so declare and shall direct by whom30and in what proportion the costs are to be borne, including whetherthe costs, or a part of the costs, of the proceedings shall be borne bythe legal representative of the applicant.
(8) An application by a foreign national for leave to apply forjudicial review of a decision relating to a transfer under section 11935or 120 or a removal of the foreign national from the State, or leaveto apply for an extension of time under subsection (3), shall not ofitself suspend or prevent the foreign national’s transfer or, as thecase may be, removal from the State, but the High Court may, ifsatisfied that unless it does so the foreign national would be unable40to instruct his or her legal representative in relation to the matter,suspend the transfer or removal for such period as is necessary forsuch instruction.
(9) Where it is proposed to remove a person from the State fol-lowing the rejection of his or her protection application or a decision45under section 97 to refuse to consent to his or her making a sub-sequent protection application, that person may not challenge(whether by way of judicial review or otherwise) his or her removalfrom the State solely on the basis of the existence of informationthat was or could reasonably have been available to the person but50
163
Penalties andproceedings.
Offences by bodycorporate, etc.
was not available to the Minister or, as the case may be, the Tribunalbefore the rejection or deemed rejection of the application.
(10) The High Court shall give such priority as it reasonably can,having regard to all the circumstances, to the disposal of proceedingsof the kind referred to in this section. 5
(11) The Superior Courts Rules Committee may make rules tofacilitate the giving of effect to subsection (10).
(12) (a) The Minister may prescribe any act, decision or determi-nation under this Act to be an act, decision or determi-nation to which subsection (1) applies. 10
(b) In exercising his or her power under paragraph (a), theMinister shall have regard to the need for the proper andeffective management of applications under this Act, andto the interests of justice.
134.—(1) A person guilty of an offence under this Act (other than 15an offence under section 6, 33, 110(5), or 149) is liable, where noother penalty is provided—
(a) on summary conviction, to a fine not exceeding €5,000 orto imprisonment for a term not exceeding 12 months orboth, or 20
(b) on conviction on indictment, to a fine not exceeding€500,000 or to imprisonment for a term not exceeding 5years or both.
(2) A person guilty of a first offence under section 6 is liable, onsummary conviction to a fine not exceeding €5,000 or imprisonment 25for a term not exceeding 12 months or both.
(3) Where a person has been convicted of a first offence undersection 6 and, following such conviction, in continuing breach of thatsection fails to leave the State, he or she shall be liable, on summaryconviction, to a fine not exceeding €500 for each day on which he or 30she remains in the State in breach of that section.
135.—(1) Where an offence under this Act is committed by abody corporate or by a person purporting to act on behalf of a bodycorporate or an unincorporated body of persons and is proved tohave been committed with the consent, connivance or approval of, 35or to have been attributable to any wilful neglect on the part of, anyperson who, when the offence was committed, was a director, amember of the committee of management or other controlling auth-ority of the body concerned, or the manager, secretary or otherofficer of the body or a person who was purporting to act in any such 40capacity, that person shall also be guilty of an offence and shall beliable to be proceeded against and punished as if guilty of the first-mentioned offence.
(2) Where the affairs of a body corporate are managed by itsmembers, subsection (1) shall apply in relation to the acts and 45defaults of a member in connection with his or her functions of man-agement as if he or she were a director or manager of the bodycorporate.
164
136.—(1) Where a notice is required or authorised by or underthis Act to be given to a person, it shall be addressed to him orher and shall be served on or given to him or her in one of thefollowing ways:
(a) where it is addressed to him or her by name, by delivering5it to him or her;
(b) by sending it by post in a prepaid registered letter, or byany prescribed form of recorded delivery service,addressed to him or her—
(i) at the address most recently provided by him or her10to the Minister or for inclusion on the Register ofForeign Nationals or the Register of ProtectionApplicants, as the case may be, under this Act,
(ii) where he or she has, for the purposes of this Actappointed a legal representative, the business15address of the legal representative, or
(iii) where an address for service has been furnished, atthat address.
(2) Where a notice under this Act has been sent to a person inaccordance with subsection (1)(b), the notice shall be deemed to have20been duly given to the person on the third working day after the dayon which it was so sent.
(3) Where a notification or document is to be given under thisAct to the High Commissioner, it may be given at such place and insuch manner as may be agreed with him or her.25
137.—(1) Subject to any regulations made under subsection(10)(c), a foreign national, while present in the State, shall not, unlessauthorised by a licence under this section—
(a) change his or her name (as provided for the purposes ofobtaining a visa, entry permission, residence permission,30long-term residence permission, protection applicationentry permission or a protection permission under thisAct or any previous licence under this section), or
(b) use or assume in any records, deeds or documents or anyother writing or any actions, suits or proceedings or in35any dealings, transactions matters or things whatsoever,a name other than the one referred to in paragraph (a).
(2) The Minister may, on an application in the prescribed formmade to him or her by a foreign national and accompanied by suchfee (if any) as may be prescribed, issue a licence under this section,40but the Minister shall not issue such a licence where he or she is ofthe opinion that to do so would not be in the interests of—
(a) the orderly regulation of migration and the integrity of theimmigration system,
(b) national security, public security, public order or public45policy (“ordre public”), or
165
Service of noticesetc.
Restrictions onchange of name.
(c) the prevention and combating of fraud in relation to theprovision of benefits and services referred to in section9(2)(a) to (h).
(3) A licence under this section—
(a) shall have effect— 5
(i) from the date specified in it, and
(ii) subject to such conditions as the Minister may specify,having regard to the matters referred to in subsection(2)(a), (b) and (c),
and 10
(b) shall cease to have effect—
(i) subject to subparagraph (ii), from the date specifiedin it, or
(ii) on the date, referred to in subsection (9), that adecision to revoke it takes effect. 15
(4) A foreign national who—
(a) contravenes subsection (1), or
(b) fails to comply with a condition specified in a licence underthis section,
is guilty of an offence. 20
(5) The Minister may revoke a licence under this section where—
(a) the foreign national to whom the licence has been issuedhas failed to comply with a condition specified in thelicence, or
(b) in the opinion of the Minister, on grounds of national 25security, public security, public order or public policy(“ordre public”), the revocation would be appropriate.
(6) Where the Minister proposes to revoke under subsection (5) alicence under this section, he or she shall notify in writing the foreignnational to whom the licence has been issued, in a language he or 30she may reasonably be supposed to understand, of the proposal.
(7) A notification under subsection (6) shall include—
(a) a statement of the reasons for the proposal,
(b) a statement that the foreign national concerned may,within 5 working days of the notification being received 35by, or (if earlier) deemed under section 136 to have beenduly given to, him or her, make representations to theMinister as to why the licence should not be revoked asproposed, and
(c) a statement that if no such representations are made by 40the foreign national concerned within the period referredto in paragraph (b), then the licence will be revoked fromthe date specified in the notification.
166
(8) In deciding whether to revoke a licence under this section theMinister shall have regard to any representations duly made to himor her under subsection (7)(b).
(9) A decision to revoke a licence under this section shall takeeffect—5
(a) where no representations have been made within theperiod specified in subsection (7)(b), from the date speci-fied in the notification under subsection (6), or
(b) where representations have been made within the periodspecified in subsection (7)(b), from the date on which the10Minister notifies the foreign national concerned of his orher decision.
(10) The Minister may prescribe—
(a) forms and procedures for the purposes of this section,
(b) criteria for the grant of a licence under this section, and15
(c) classes of foreign nationals not required to have a licenceunder this section, either generally or for the purpose ofparticular transactions or matters, where he or she issatisfied that the prevention of fraud and the integrity ofthe immigration system do not require that class of20foreign nationals to have licences.
138.—(1) The Minister, in making his or her determination of anyimmigration matter, may disregard a particular marriage as a factorbearing on that determination where the Minister under this sectiondeems or determines that marriage to be a marriage of convenience.25
(2) Where the Minister, in taking into account a marriage for thepurpose of making a determination of any immigration matter, hasreasonable grounds for considering that the marriage is a marriageof convenience, he or she may send a notice to the parties to themarriage—30
(a) setting out in writing the nature of those grounds, and
(b) requiring the parties to provide, within the time limitspecified in that notice, information to satisfy the Mini-ster that the marriage is not a marriage of convenience.
(3) For the purposes of subsection (2)—35
(a) the onus lies on the person subject to a requirement underthat subsection to establish, to the satisfaction of theMinister, that the marriage is not a marriage of con-venience, and
(b) where a person subject to a requirement under that sub-40section fails to provide the information concerned withinthe time limit specified in the relevant notice, the Mini-ster may, for the purpose of his or her determination ofthe relevant immigration matter, deem the marriage tobe a marriage of convenience.45
(4) The Minister may exercise the power under subsection (2) inrespect of a particular marriage whether or not—
167
Marriage ofconvenience.
(a) that marriage has previously been taken into account inthe determination of any immigration matter, or
(b) that subsection has previously been invoked in respect ofthat marriage.
(5) The Minister shall determine whether a marriage referred to 5in subsection (2) is a marriage of convenience having regard to—
(a) any information furnished under this section, and
(b) such of the following matters as appear to the Minister tobe relevant in the circumstances:
(i) the nature of the ceremony on the basis of which the 10parties assert that they are married;
(ii) whether the parties have been residing together ashusband and wife, and, if so, the length of time dur-ing which they have so resided;
(iii) the extent to which the parties have been sharing 15income and outgoings;
(iv) the extent to which the parties have been dealing withother organs of the State or the organs of any otherstate as a married couple;
(v) the nature of the relationship between the parties 20prior to the marriage;
(vi) whether the parties are each familiar with the other’spersonal details;
(vii) whether the parties speak a language which is under-stood by both of them; 25
(viii) whether a sum of money or other inducement wasexchanged in order for the marriage to be contracted(and, if so, whether this represented a dowry givenin the case of persons from a country or societywhere the provision of a dowry is a common 30practice);
(ix) whether the parties have a continuing commitment tomutual emotional and financial support;
(x) the marital history of each of the parties including anyevidence that either of them has previously entered 35into a marriage of convenience;
(xi) whether any previous conduct of either of the partiesor the foreign national to whom the immigrationmatter under consideration relates (if different) indi-cates that any of them has previously arranged a 40marriage of convenience or otherwise attempted tocircumvent the immigration laws of the State or anyother state;
(xii) the immigration status of the parties in the State or inany other state; 45
168
(xiii) any information provided by an tArd-Chláraitheoir ora registrar;
(xiv) any other matters which appear to the Minister toraise reasonable grounds for considering the mar-riage to be a marriage of convenience.5
(6) The Minister may prescribe procedures and forms for the pur-poses of this section.
(7) In this section—
“immigration matter” means any question relating to the grant of avisa to, or the entry into, presence in or removal from the State of,10a foreign national;
“marriage of convenience” means a marriage contracted, whetherinside or outside the State, where at least one of the parties is aforeign national and where, for at least one of the parties, expedi-ency, in the form of the obtaining—15
(a) from the Minister, a determination of an immigrationmatter, or
(b) from the immigration authority of another state, a deter-mination of an equivalent matter,
favourable to either of the parties to the marriage or to another20foreign national, was the predominant motivation in contracting themarriage;
“registrar” has the same meaning as it has in section 17 of the CivilRegistration Act 2004.
139.—(1) A foreign national may, by notice given to him or her25in writing by the Minister, be permitted to be present in the Statefor a recovery and reflection period if the foreign national is a foreignnational in respect of whom a member of the Garda Síochána notbelow the rank of Superintendent has provided a statement to theMinister to the effect that that member considers that there are30reasonable grounds for believing that that foreign national is a victimof trafficking.
(2) A recovery and reflection period—
(a) shall commence from the date specified in the noticereferred to in subsection (1),35
(b) may be terminated by the Minister where he or she is satis-fied that—
(i) the foreign national has actively, voluntarily and onhis or her own initiative renewed his or her relevantconnections with the alleged perpetrators of the40trafficking,
(ii) it is in the interests of national security, public securityor public order, or necessary for reasons of publicpolicy (“ordre public”), to do so, or
(iii) the foreign national has falsely claimed to be a victim45of trafficking.
169
Victims oftrafficking (recoveryand reflection).
(3) A foreign national shall not be removed from the State duringhis or her recovery and reflection period.
(4) The grant of permission to be present in the State under sub-section (1) shall not, of itself, entitle the foreign national to remainin the State upon the expiration of his or her recovery and reflec- 5tion period.
(5) The Minister shall, either during the recovery and reflectionperiod or following its expiration as the Minister considers appro-priate, grant a temporary residence permission to a foreign nationalto remain in the State for a period not exceeding 6 months, where 10the Minister is satisfied that—
(a) the foreign national has severed all of his or her relevantconnections with the alleged perpetrators of the traffick-ing, and
(b) the permission is necessary for the purposes of allowing 15the foreign national to continue to assist the Garda Síoch-ána or other relevant authorities in relation to any inves-tigation or prosecution arising in relation to thetrafficking.
(6) A temporary residence permission shall be renewed where the 20Minister is satisfied that the conditions in subsection (5) continueto apply.
(7) (a) The grant of a temporary residence permission shall notof itself entitle the foreign national to remain in the Stateupon the expiration of that permission. 25
(b) Where the foreign national is the holder of any permissionunder this Act allowing him or her to enter or be presentin the State, a recovery and reflection period grantedunder subsection (1) shall run concurrently with, and shallnot operate to extend, that permission. 30
(c) Where the permission referred to in paragraph (b) expiresbefore the recovery and reflection period expires, therecovery and reflection period shall operate to permit theforeign national to remain in the State until that periodexpires or, as the case may be, he or she is granted a 35temporary residence permission under subsection (5).
(8) A temporary residence permission may be revoked where theMinister is satisfied that—
(a) the foreign national has actively, voluntarily and on his orher own initiative renewed his or her relevant connec- 40tions with the alleged perpetrators of the trafficking,
(b) the foreign national no longer wishes to assist the GardaSíochána or other relevant authorities in relation to anyinvestigation or prosecution arising in relation to the traf-ficking of the foreign national, 45
(c) the allegation that the foreign national is a victim of traf-ficking is fraudulent or unfounded,
(d) any investigation or prosecution arising in relation to thetrafficking has been finalised or terminated, or
170
(e) the Minister is satisfied that it is in the interests of nationalsecurity, public security or public order, or necessary forreasons of public policy (“ordre public”), to do so.
(9) Sections 53 and 54 apply to any decision to revoke a temporaryresidence permission.5
(10) (a) The Minister may make regulations prescribing a recoveryand reflection period exceeding 60 days which shall applyto a foreign national or class of foreign national underthe age of 18 years.
(b) The Minister shall grant to a foreign national to whom a10recovery and reflection period of a kind referred to inparagraph (a) has been granted a residence permission,other than a temporary residence permission referred toin subsection (5), which shall be renewable and subject tosuch conditions as the Minister considers appropriate.15
(c) The Minister shall exercise his or her power under para-graph (a) having regard to the matters set out in subsec-tions (2) and (4) of section 141.
(11) For the purposes of this section, “recovery and reflectionperiod”, with respect to a foreign national, means a period of 60 days20during which the foreign national can recover from alleged traffick-ing and escape the influence of the perpetrators of the alleged traf-ficking so that he or she can take an informed decision as to whetherto assist the Garda Síochána or other relevant authorities in relationto any investigation or prosecution arising in relation to the alleged25trafficking.
140.—(1) The Minister shall make regulations prescribing thetreatment of foreign nationals who are arrested and detained undersection 6, Part 6 or Part 7.
(2) Without prejudice to the generality of subsection (1), the30matters for which regulations under that subsection may provideinclude the—
(a) provision of accommodation and other services and facili-ties to a detained person,
(b) notices and information to be given to a detained person,35
(c) records to be kept in respect of a detained person,
(d) information to be given to third parties in respect of adetained person,
(e) communications a detained person may have with thirdparties, which shall include reasonable access by him or40her to a legal representative and, where necessary, aninterpreter, and
(f) searching of, and use of force against, a detained personwhere this is necessary for the safety and security of per-sons and maintenance of good order and hygiene in the45place of detention.
(3) Regulations under subsection (1) may provide for—
171
Treatment offoreign nationalsregulations.
Regulationsgoverning grant ofpermissions, etc. .
(a) the treatment in a different manner of foreign nationalsdetained in different places prescribed under this Act,having regard to the need for safe custody, good orderand security in such places, and
(b) the treatment of such foreign nationals in a different man- 5ner from other persons detained in those places.
141.—(1) Subject to section 46 (other than subsection (1)(b) ofthat section) and Part 7, the Minister may, in the interests of thecommon good or public policy (“ordre public”), make regulationsfor the purposes of ensuring the orderly regulation of migration, the 10integrity of the immigration system or the maintenance of nationalsecurity, public security or public order.
(2) Without prejudice to the generality of subsection (1), regu-lations under this section may provide for—
(a) the classes of foreign nationals to whom entry permissions, 15residence permissions, enhanced residence permissionsor long-term residence permissions (in this sectionreferred to as “permissions”) of particular categories maybe granted, and
(b) such conditions attaching to the different categories of 20such permissions as the Minister considers appropriate,including conditions—
(i) relating to duration of a permission,
(ii) requiring foreign nationals to whom a permission isgranted to be in a position to support themselves and 25any accompanying dependants without recourse topublic funds,
(iii) requiring that foreign nationals co-operate fully withthe Minister or an immigration officer in any processrelating to the renewal, non-renewal or revocation 30of permissions, or the modification of the conditionsattaching thereto,
(iv) requiring that foreign nationals undergo medicalexaminations,
(v) requiring that foreign nationals have and maintain 35adequate medical insurance in respect of themselvesand any accompanying dependants,
(vi) requiring, as a condition of the grant of permissions,that foreign nationals provide deposits or enter intobonds, in accordance with section 146, and specifying 40circumstances where the forfeiture of such depositsis to be secured or the bonds are to be enforced,
(vii) requiring, as a condition of the grant of permissions,the payment of the costs of such publicly fundedservices or benefits as foreign nationals and their 45dependants are likely to avail of while in the State,as estimated by the Minister after consultation withthe Ministers of the Government responsible for theprovision of such services and benefits, and subject
172
to adjustment during the period of validity of thepermissions,
(viii) relating to the extent to which foreign nationals mayhave access to benefits or services referred to inparagraphs (a) to (h) of section 9(2),5
(ix) relating to the extent to which foreign nationals mayseek to enter into employment or to engage for gainin any business, trade or profession,
(x) relating to the extent to which foreign nationals mayenjoy family reunification in the State,10
(xi) relating to whether particular permissions may or maynot be renewed and where they may be renewed, theconditions relating to such renewals,
(xii) relating to whether periods of residence in the Stateon foot of the permission are reckonable for part-15icular purposes (including purposes unconnectedwith immigration) and, if so, which purposes,
(xiii) specifying eligibility requirements of the type referredto in section 46(1)(b), and
(xiv) relating to whether foreign nationals may apply for20modification of the conditions of permissions or forpermissions of different categories.
(3) A class of foreign nationals to whom a particular category ofpermission applies may be specified by reference to such matters asthe Minister considers appropriate, including—25
(a) nationality,
(b) age,
(c) purpose of entry into and presence in the State,
(d) proposed duration of that presence,
(e) family circumstances,30
(f) occupation,
(g) educational, professional, vocational or other qualifi-cations or experience,
(h) health,
(i) diplomatic status, and35
(j) immigration status (whether in the State or in anotherstate).
(4) In specifying categories of permission under subsection (3) orconditions of permission under subsection (2)(b), the Minister shallhave regard to whether the entry into or presence in the State of a40foreign national or a class of foreign nationals to whom a permissionof a category specified in those regulations may be granted will con-tribute to—
173
Fees.
(a) trade, commercial, tourist, cultural, educational or scien-tific activities,
(b) the facilitation of the provision of skills and expertise inthe industrial, commercial, business, educational, scien-tific, cultural or administrative fields having regard to 5whether there is a shortage or surplus of such skills orexpertise in the State, the need to achieve and maintainfull employment of Irish citizens and the need to achievebalanced development in the regions of the State,
(c) the pursuit by the State of the maximum social, cultural 10and economic benefits of immigration for the prosperityof all regions in the State,
(d) the enrichment and strengthening of the cultural and socialfabric of the State,
(e) the promotion of successful social integration of foreign 15nationals into the State,
(f) the maintenance and protection of the health and safetyof Irish citizens and others lawfully resident in the Stateand the good order of society within the State,
(g) the promotion of international understanding, order and 20justice, including the fostering of respect for human rightsand denial of the use of the territory of the State to per-sons who are likely to engage in criminal activity orwhose presence in the State would pose a threat tonational security or public security or be counter to public 25order or public policy (“ordre public”),
(h) the fostering and development of the links between theState and the United Kingdom of Great Britain andNorthern Ireland,
(i) the protection of the socio-economic fabric of the State, 30
(j) the protection of the security of the State, and
(k) the attainment or implementation of the economic policyfor the time being of the Government.
(5) The fact that a foreign national does not come within any ofthe classes for the time being specified under subsection (2)(a) shall 35not, of itself, render the foreign national concerned ineligible for thegrant to him or her of a visa or permission.
(6) Any permission granted to a foreign national who does notcome within any of the classes specified under subsection (2)(a) shallbe subject to such conditions as the Minister considers appropriate 40in all the circumstances.
142.—(1) The Minister may, with the consent of the Minister forFinance, prescribe fees (which may include different fees for differ-ent categories of visas, permissions or permits, different classes ofpersons or different circumstances) payable in respect of— 45
(a) the making of any application under this Act,
(b) the grant of a visa,
174
(c) the grant, renewal or modification of the conditions of,a permission,
(d) the issue of permits, and
(e) any other fee to be prescribed under this Act.
(2) In prescribing different fees under subsection (1), the Minister5may do so by reference to such factors or combinations of factors,as he or she considers appropriate, including:
(a) whether, in his or her opinion, and having regard to immi-gration policy, the entry into or presence in the State ofpersons of a particular class would be in the interests of10the State,
(b) the likely effect that a particular fee, if prescribed, wouldhave on demand for a visa or permission, or for a visa orpermission of a particular category,
(c) the fees payable by Irish citizens to another state in respect15of a corresponding visa or permission,
(d) whether applications are for the first issue of a permission,the renewal of a permission or modification of conditionsof a permission, or the replacement of a residence permit,
(e) circumstances of priority or urgency, and20
(f) the time between applications and issue or grant of thevisas, permissions or permits concerned.
(3) The Minister or any other person to whom a prescribed fee ispayable may, if the fee (or any part of it) is not paid, recover it as asimple contract debt.25
(4) The Minister may, with the consent of the Minister for Fin-ance, prescribe circumstances in which the prescribed fees specifiedin the regulations under this section shall not be payable or may bewaived; and those circumstances may include those where theapplication—30
(a) is for protection or is made by a person who has beengranted a protection declaration, or
(b) is made by a person under the age of 18 years.
143.—(1) Without prejudice to regulations made under this Act,the Minister may, at his or her discretion, give a direction to an immi-35gration officer in relation to a determination in respect of any matterrelating to the entry into or presence in the State of a particularforeign national or a class of foreign nationals specified in thedirection.
(2) An immigration officer to whom a direction has been given40under this section shall comply with it.
(3) In exercising his or her discretion to give a direction undersubsection (1) the Minister shall have regard to the matters specifiedin section 141(4).
175
Directions.
Public security, etc.
Bonds, deposits andguarantees.
144.—(1) In any proceedings challenging the validity of an act,decision or determination under this Act, the opinion of the Mini-ster that—
(a) the entry into or presence in the State of a foreign nationalis or would be a threat to national security, public security 5or public order or be contrary to public policy (“ordrepublic”), or
(b) it is necessary, for reasons of national security, publicsecurity, public order or public policy (“ordre public”) toattach conditions to a foreign national’s permission to 10enter or be present in the State,
shall be evidence that the foreign national is or would be such athreat to national security, public security or public order or wouldbe contrary to public policy (“ordre public”) or, as the case may be,that such conditions are necessary for such reasons; and the court in 15any such proceedings may for the purposes of this subsection receivehearsay evidence.
(2) The Minister shall not be obliged to disclose the source ofinformation upon which he or she formed the opinion referred to insubsection (1). 20
(3) Nothing in this Act shall be construed as requiring the disclos-ure of information the disclosure of which, in the opinion of theMinister, would be prejudicial to national security, public security orpublic order or would be contrary to public policy (“ordre public”).
(4) Nothing in this Act shall be construed as requiring the disclos- 25ure of any information provided to the Minister by or on behalf ofthe government of another state in accordance with an express orimplied undertaking given to that government that the informationis to be kept confidential without having obtained the consent ofthat government. 30
145.—(1) This section applies where a foreign national is requiredto provide a deposit or enter into a bond under a relevant provision.
(2) In accordance with a relevant provision, the Minister, animmigration officer or a member of the Garda Síochána, as the casemay be, may fix the amount of a deposit or bond, having regard to 35any criteria specified in regulations under subsection (12).
(3) (a) A person shall not act as a guarantor unless the Minister,immigration officer or member of the Garda Síochána,as the case may be, is satisfied as to the sufficiency andsuitability of the person. 40
(b) In determining the sufficiency and suitability of a personproposed as a guarantor under paragraph (a), the Mini-ster, immigration officer or member of the Garda Síoch-ána concerned shall have regard to—
(i) the financial resources of the person and, in part- 45icular, whether the person is of sufficient means asto be likely, in the event that the foreign nationalfails to comply with a condition, to be able to honourthe guarantee,
176
(ii) the likelihood that the person will be present in theState for the period referred to in subsection (7),
(iii) the relationship of the person to the foreign nationaland, in particular whether the relationship existssolely or mainly for a purpose relating to the foreign5national’s entry into or presence in the State, or theprovision of a guarantee by that person,
(iv) the character of the person, and
(v) any previous criminal convictions of the person.
(4) A guarantor, if a natural person, shall be not less than 18 years10of age and—
(a) an Irish citizen or,
(b) if not an Irish citizen—
(i) a citizen of a Member State,
(ii) a person who has established a right to enter and be15present in the State under any of the enactmentsreferred to in section 10(2), or
(iii) the holder of a long-term residence permit,
who has been lawfully resident in the State for not lessthan 5 years.20
(5) A person other than a natural person may be a guarantorwhere the Minister, immigration officer or member of the GardaSíochána, as the case may be, is satisfied that all formalities requiredto bind the person have been complied with.
(6) Where a foreign national provides a deposit or enters into a25bond, the Minister shall provide him or her and, where applicable,the guarantor with a notice setting out—
(a) the amount of the deposit or bond,
(b) the conditions which, if breached, would lead to the for-feiture of the deposit or, as the case may be, the imple-30mentation of the bond,
(c) the circumstances in which the deposit shall be refundedor, as the case may be, the bond shall be released,
(d) the period for which, in accordance with subsection (7),the deposit shall not be refundable or, as the case may35be, the bond shall remain in effect,
(e) the effect of subsections (7) to (11).
(7) A deposit shall not be refundable, and a bond shall remain ineffect, for a period that ends—
(a) in the case of a deposit provided or bond entered into40under section 61(1) or 62(1), when the foreign nationalconcerned leaves the State and provides evidence of hav-ing left it, and
177
(b) in any other case, when the visa, entry permission or resi-dence permission to which it relates expires, and eitherthe foreign national concerned leaves the State and pro-vides evidence of having left, or his or her presence inthe State become otherwise lawful. 5
(8) Where the Minister intends to secure the forfeit of a depositor to enforce a bond or guarantee, he or she shall give notice inwriting to the person concerned, and that person may, not later than15 working days of the sending of the notice, make representationsin relation to the matter. 10
(9) (a) The Minister shall refund a deposit provided, or release abond entered into, at the end of the period referred to insubsection (7) if satisfied that the foreign national towhom the deposit or bond relates has not failed to com-ply with any condition. 15
(b) The Minister shall not secure the forfeiture of a deposit orenforce a bond or guarantee before the end of the periodreferred to in subsection (7).
(10) The Minister may waive all or any part of a sum to be for-feited or paid under this section or refund all or any part of a sum 20so forfeited or paid.
(11) (a) A foreign national who is eligible for the refund of adeposit shall apply, in accordance with the prescribedprocedures, for that refund and if he or she does not doso within 12 months of that deposit becoming refundable, 25the deposit need not be refunded.
(b) For the avoidance of doubt, interest shall not be payable inrespect of any refund of a deposit under this subsection.
(12) The Minister may, for the purposes of this section,prescribe— 30
(a) procedures and forms, and
(b) the criteria to which a person referred to in subsection (2)is to have regard in fixing an amount of a bond or depositunder that subsection.
(13) A deposit forfeited under this section shall be disposed of 35by the Minister in such manner as may be directed by the Ministerfor Finance.
(14) For the purposes of this section—
“bond” means a contract for the payment to the Minister by a foreignnational or, as the case may be, a guarantor, of a specified sum of 40money in the event that the foreign national concerned fails to com-ply with a condition;
“condition” means—
(a) any condition attached to a visa, entry permission or resi-dence permission to which a deposit or bond relates, or 45
(b) any condition imposed on a foreign national under section61(1) or 62(1);
178
“deposit” means a sum of money paid to the Minister, with theagreement of the person paying it that the sum shall be forfeited inthe event that the foreign national concerned fails to comply withany condition;
“guarantee”, in relation to a bond, means an undertaking given by a5third party that, in the event that the foreign national concerned failsto comply with any condition, the third party shall pay to the Mini-ster the sum of money referred to in the bond;
“relevant provision” means section 16, 61(1), 62(1) or 141(2)(b)(vi).
146.—(1) The Minister shall, not later than 6 months after the10end of each calendar year, publish a report containing, where suchinformation is available, statistical information concerning the pro-cessing during that year of applications relating to the grant of visasto, or the entry into, presence in or removal from the State of, foreignnationals and any other relevant information.15
(2) The Minister shall cause a copy of the report to be laid beforeeach House of the Oireachtas.
147.—Each provision specified in column 3 of Schedule 3 of eachAct specified in column 2 of that Schedule is amended in the mannerspecified in column 4 of that Schedule opposite the mention of that20provision.
PART 9
smuggling of persons
148.—(1) In this Part—
“Convention State” means a state other than the State that is a party25to the United Nations Protocol against the Smuggling of Migrants byLand, Sea and Air, supplementing the United Nations Conventionagainst Transnational Organised Crime, done at New York on the15th day of November 2000;
“court”, other than in section 154(12), means, in relation to a30person—
(a) if the person has not been charged with an offence undersection 149 or if he or she has been so charged and pro-ceedings for the offence have not commenced, the Dis-trict Court, and35
(b) if the person has been so charged and the proceedings con-cerned have commenced, the court hearing the pro-ceedings;
“designated state” means a country, other than the State, which is aparticipating party or a cooperating party to the Convention imple-40menting the Schengen Agreement of 14 June 1985 between theGovernments of the States of the Benelux Economic Union, the Fed-eral Republic of Germany and the French Republic on the gradualabolition of checks at their common borders done at Schengen on19 June 1990;45
179
Statisticalinformation.
Amendments.
Interpretation (Part9).
Facilitation ofunlawful entry andpresence.
“enforcement officer” means—
(a) a member of the Garda Síochána,
(b) an officer of customs and excise authorised by theRevenue Commissioners to perform functions underthis Part, 5
(c) a member of the Naval Service of the Defence Forces notbelow the rank of petty officer, or
(d) an immigration officer;
“Irish ship” shall be construed in accordance with section 9 of theMercantile Marine Act 1955; 10
“outer limit of the territorial seas” shall be construed in accordancewith section 83 of the Sea-Fisheries and Maritime Jurisdiction Act2006;
“ship” includes any vessel used in navigation except where other-wise specified. 15
(2) In this Part, a reference to a state includes a reference to thesub-sovereign entities of the state.
149.—(1) (a) A person who organises or knowingly facilitates theunlawful entry into, or unlawful presence in, the State ofa foreign national is guilty of an offence. 20
(b) Paragraph (a) shall apply to acts done or omissions madeoutside the State, as well as acts done or omissions madein the State.
(2) (a) A person who organises or knowingly facilitates theunlawful entry into, or unlawful presence in, a designated 25state of a foreign national is guilty of an offence.
(b) Paragraph (a) shall apply to any act done or omissionmade outside the State if—
(i) the act is done or the omission is made by an Irishcitizen or by a person ordinarily resident in the State, 30
(ii) the act is done or the omission is made on board anIrish ship, or
(iii) the act is done or the omission is made on an aircraftregistered in the State,
but in any such case section 150(2) shall apply. 35
(c) Paragraph (a) shall apply to an act done or an omissionmade outside the State in circumstances other than thosespecified in paragraph (b)(i) to (iii) if the doing of the actor the making of the omission constitutes an offence forwhich the person would be liable to extradition or surren- 40der but extradition or surrender under a European arrestwarrant has been refused and in any such case he or sheis guilty of the like offence and liable to conviction andto the like punishment as if the act were done or theomission were made within the State. 45
180
(d) For the purposes of this subsection, a person who has hisor her principal residence in the State for the 12 monthsimmediately preceding the commission of an offenceunder this section shall be deemed to be ordinarily resi-dent in the State on the date of the commission of the5offence.
(3) Subsections (1) and (2) shall not apply to any act done oromission made to assist a foreign national seeking protection in theState or, as the case may be, a designated state, by a person in thecourse of the person’s employment by a bona fide organisation if the10purposes of that organisation include giving assistance withoutcharge to foreign nationals seeking such protection.
(4) A court shall, in determining the sentence to be imposed on aperson for an offence under this section, except where it considersthat there are exceptional circumstances justifying its not so doing,15treat as an aggravating factor any behaviour by the offender relatedto the commission of the offence—
(a) that endangered or was likely to endanger the life or safetyof a foreign national intending unlawfully to enter theState or, as the case may be, a designated state, or a20foreign national intending to seek protection, or
(b) that resulted in the exploitation or inhuman or degradingtreatment of a foreign national intending to unlawfullyenter the State or, as the case may be, a designated stateor a foreign national intending to seek protection,25
and the court shall impose a sentence that is greater than that whichit would have imposed in the absence of such an aggravating factor.
(5) A person who commits an offence under this section isliable—
(a) on summary conviction, to a fine not exceeding €5,000 or30to imprisonment for a term not exceeding 12 months orboth, or
(b) on conviction on indictment, to a fine or to imprisonmentfor a term not exceeding 10 years or both.
150.—(1) Proceedings for an offence under section 149 alleged to35have been committed outside the State may be taken in any place inthe State and the offence may for all incidental purposes be treatedas having been committed in that place.
(2) Where a person is charged with an offence—
(a) under section 149(2), to which paragraph (b) of that sub-40section applies, or
(b) under section 149, to which section 155 applies,
no further proceedings in the matter (other than any remand in cus-tody or on bail) may be taken except by or with the consent of theDirector of Public Prosecutions.45
181
Proceedings relatingto offencescommitted outsideState.
Evidence inproceedings underPart.
Double jeopardy.
Exercise ofenforcement powersin respect of ships.
151.—(1) In any proceedings relating to an offence under section149—
(a) a certificate that is signed by an officer of the Minister forForeign Affairs and stating that a passport was issued bythat Minister of the Government to a person on a speci- 5fied date, and
(b) a certificate that is signed by an officer of the Minister andstating that, to the best of the officer’s knowledge andbelief, the person has not ceased to be an Irish citizen,
shall be evidence that the person was an Irish citizen on the date on 10which the offence concerned is alleged to have been committed,unless the contrary is shown.
(2) A document purporting to be a certificate under paragraph(a) or (b) of subsection (1) is deemed, unless the contrary is shown—
(a) to be such a certificate, and 15
(b) to have been signed by the person purporting to havesigned it.
(3) A document purporting to be a certificate signed by the Mini-ster for Foreign Affairs stating that he or she—
(a) has received a request or authorisation from a Convention 20State for the exercise of powers by an enforcement officerunder section 154 in relation to a ship registered in thatstate, or
(b) has given his or her authority for any purpose providedfor in section 153, 25
is evidence of the facts stated in the certificate, unless the contraryis shown.
152.—A person who has been acquitted or convicted of an offencein a place outside the State shall not be proceeded against for anoffence under this Part consisting of the act or acts, or omission or 30omissions, that constituted the offence of which the person was soacquitted or convicted.
153.—(1) An enforcement officer may, for the purpose of thedetection of an offence under section 149 or the taking of appropriateaction in respect of any such offence, and subject to this section, 35exercise the powers conferred on him or her by section 154 inrelation to—
(a) an Irish ship,
(b) a ship registered in a Convention State, and
(c) a ship not registered in any country or territory. 40
(2) (a) An enforcement officer shall not exercise the powersreferred to in subsection (1) outside the outer limit of theterritorial seas of the State in relation to a ship registeredin a Convention State without the authority of the Mini-ster for Foreign Affairs. 45
182
(b) The Minister for Foreign Affairs shall not give his or herauthority to the exercise of powers to which paragraph(a) applies unless the Convention State concerned has inrelation to that ship—
(i) requested the assistance of the State for the purpose5mentioned in subsection (1), or
(ii) authorised the State to act for that purpose.
(c) In giving his or her authority under paragraph (b), theMinister for Foreign Affairs shall impose such conditionsor limitations on the exercise of the powers as may be10necessary to give effect to any conditions or limitationsimposed by the Convention State.
(3) (a) An enforcement officer shall not exercise the powersreferred to in subsection (1) in the territorial seas of anystate other than the State without the authority of the15Minister for Foreign Affairs.
(b) The Minister for Foreign Affairs shall not give his or herauthority to the exercise of powers to which paragraph(a) applies unless the state concerned has consented tothe exercise of those powers.20
(c) In giving his or her authority under paragraph (b), theMinister for Foreign Affairs shall impose such conditionsor limitations on the exercise of the powers as may benecessary to give effect to any conditions or limitationsimposed by the state concerned.25
(4) The Minister for Foreign Affairs may, either of his or her ownmotion or in response to a request from a Convention State, author-ise a Convention State to exercise, in relation to an Irish ship, powerscorresponding to those conferred on enforcement officers by section154 but subject to such conditions or limitations, if any, as he or she30may impose.
154.—(1) Where an enforcement officer has reasonable groundsto suspect that an offence under section 148 has been committed ona ship to which that section applies, he or she may stop the ship,board it and, if he or she considers it necessary for the performance35of his or her functions under this Part, require the ship to be takento a port in the State and detain it there.
(2) An enforcement officer may, for the purposes of investigatingthe suspected offence—
(a) search without a warrant the ship and anything on it,40including its cargo,
(b) require any person on the ship to give information con-cerning himself or herself, any other person on the shipor anything on the ship,
(c) without prejudice to the generality of paragraphs (a) and45(b)—
(i) open any container,
183
Enforcementofficers andenforcement powersin respect of ships.
(ii) carry out tests and take samples of anything on theship,
(iii) require the production of any document relating tothe ship or anything or any person on it, and
(iv) take photographs or make copies of anything the pro- 5duction of which he or she has power to require tobe produced, and
(d) search without a warrant any person who the enforcementofficer has reasonable grounds to suspect has committedan offence under section 149. 10
(3) (a) If an enforcement officer has reasonable grounds to sus-pect that an offence under section 149 has been commit-ted on the ship concerned, he or she may—
(i) arrest without warrant any person whom he or shehas reasonable grounds for suspecting to be guilty of 15the offence, and
(ii) seize and detain anything found on the ship whichappears to him or her to be evidence of the offence.
(b) For the purposes of subparagraph (ii) of paragraph (a),the enforcement officer shall have the powers of seizure 20and retention under section 9(1) of the Criminal Law Act1976 as though he or she were a member of the GardaSíochána, and that section shall apply in relation to any-thing seized and retained under that subparagraph.
(4) An enforcement officer shall, if required, produce evidence of 25his or her authority.
(5) (a) For the performance of functions under this Part, anenforcement officer may—
(i) use reasonable force, if necessary,
(ii) require any member of the crew of the ship concerned 30to take such action as may be necessary to assist theenforcement officer,
(iii) take with him or her, and use, any equipment ormaterials that he or she considers necessary, and
(iv) be accompanied by any other person with a special- 35ised or technical knowledge or skill who the enforce-ment officer considers may be of assistance to himor her in the performance of those functions.
(b) Any person referred to in subparagraph (iv) of paragraph(a) shall have and be conferred with, for the purposes 40referred to in that subparagraph, the powers and dutiesof the enforcement officer concerned, other than thepower of arrest under subsection (3)(a)(i).
(6) Where an enforcement officer detains a ship under subsection(1), he or she shall serve on the master of the ship a notice in writing 45that the ship is to be detained until the notice is withdrawn by theservice on the master of a notice in writing to that effect signed bythe enforcement officer or another enforcement officer.
184
(7) Where a ship has been taken to a port in the State undersubsection (1) and a person on board that ship has been arrestedunder subsection (3)(a)(i), the enforcement officer (where thatofficer is not a member of the Garda Síochána) shall, as soon aspracticable, deliver that person into the custody of a member of the5Garda Síochána to be dealt with according to law, and the lawfulcustody of that person shall continue after such delivery.
(8) A person who—
(a) intentionally obstructs an enforcement officer, or a personreferred to in subsection (5)(a)(iv), in the performance of10any of his or her functions under this Part,
(b) fails without reasonable excuse to comply with a require-ment made by an enforcement officer, or a personreferred to in subsection (5)(a)(iv), in the performance ofthose functions, or15
(c) in purporting to give information required by an enforce-ment officer, or a person referred to in subsection(5)(a)(iv), for the performance of those functions—
(i) makes a statement which he or she knows to be falsein a material particular or recklessly makes a state-20ment which is false in a material particular, or
(ii) intentionally fails to disclose any material particular,
is guilty of an offence.
(9) Where an enforcement officer is exercising powers referredto in subsection (2)(a) or (3)(a) of section 153, in accordance with25that section—
(a) the officer may require the ship to be taken to a port inthe Convention State concerned or, if that state has sorequested, in any other state or territory willing toreceive it,30
(b) the enforcement officer may, having regard to the lawapplicable at the place to which the ship is brought, makearrangements in accordance with that law for, as the casemay be, the arrest or detention of a person, or thetransfer to the custody of a police officer or such other35authority as may be specified in that law or to a judicialauthority of the person arrested, and
(c) any person who, in relation to the enforcement officer,does any of the things referred to in paragraph (a), (b)or (c) of subsection (8), is guilty of an offence.40
(10) Where the Minister for Foreign Affairs, in accordance withsection 153(4), authorises a Convention State to exercise the powersreferred to in that subsection in relation to an Irish ship—
(a) a person acting on behalf of that Convention State shallnot be liable in any criminal proceedings in the State for45anything done in the exercise of those powers, and
(b) any person who, in relation to a person referred to in para-graph (a), does any of the things referred to in paragraph(a), (b) or (c) of subsection (8), is guilty of an offence.
185
Jurisdiction andprosecutions inrelation to offenceson ships.
Power to detaincertain vehicles.
(11) A person who does any thing, or makes any omission, inrelation to—
(a) an enforcement officer,
(b) a person referred to in subsection (5)(a)(iv), or
(c) a person referred to in subsection (10)(a), 5
that, if done or made in the State, would consist of an offence, isguilty of the offence notwithstanding that the doing of the thing orthe making of the omission occurred outside the State.
(12) An enforcement officer, and a person referred to in subsec-tion (5)(a)(iv), shall not be liable in any civil or criminal proceedings 10for anything done in the purported performance of his or her func-tions under this Part if the court before which the proceedings arebeing heard is satisfied that the act was done in good faith and thatthere were reasonable grounds for doing it.
155.—Proceedings for an offence under section 149 alleged to have 15been committed outside the outer limit of the territorial seas on aship registered in a Convention State shall only be instituted afterthe powers referred to in section 154(1) have been exercised, inaccordance with subsection (2) of that section, in respect of thatoffence. 20
156.—(1) Where a member of the Garda Síochána arrests a per-son for an offence under section 149 and a vehicle is suspected ofhaving been used by the person for the purpose of committing orfacilitating the commission of the offence, the member may detainthe vehicle with its equipment, fittings and furnishings for a period 25not exceeding 48 hours.
(2) At any time before the expiration of the period referred to insubsection (1), on application to it in that behalf by a member of theGarda Síochána, the court, if it is satisfied that—
(a) the person referred to in subsection (1) has been or is 30about to be charged with an offence under section 149,
(b) there are reasonable grounds for believing that the vehicleis one which could on conviction on indictment of theperson for that offence, and having regard to section157(6), be the subject of a forfeiture order under that 35section, and
(c) there are reasonable grounds for believing that the vehiclewould be removed from the State or sold or otherwisedisposed of before the determination of the proceedingsfor that offence, 40
may make an order authorising the further detention of the vehicleby the Garda Síochána for such period, not exceeding 3 months, asmay be specified in the order.
(3) The court may from time to time, if it is satisfied in relationto the matters referred to in paragraphs (2)(a), (b) and (c) of subsec- 45tion (2) on application to it in that behalf by a member of the GardaSíochána before the expiration of the period specified in an orderunder that subsection, make an order authorising the detention of
186
the vehicle by the Garda Síochána for such further period notexceeding 3 months as may be specified in the order.
(4) (a) A vehicle shall not be detained under this section forperiods exceeding in total 2 years.
(b) The detention of a vehicle under this section shall cease if5the proceedings concerned are summary or are discon-tinued or if the person concerned is acquitted of thecharge concerned and the time for taking an appeal haspassed.
(5) At any time while a vehicle is being detained under this10section, a person specified in paragraph (a), (b) or (c) of section157(2) may apply to the court for its release and the court may—
(a) order the release of the vehicle unconditionally if it is satis-fied that the circumstances referred to in subsection(2)(a), (b) and (c) no longer exist,15
(b) on such security being given as it considers satisfactory,release the vehicle subject to the condition that it will bedelivered up to the Garda Síochána if—
(i) the person concerned is convicted of the offencecharged, and20
(ii) an order for its forfeiture is made under section 157,
or
(c) order the release of the vehicle subject to such other con-ditions as it considers appropriate, including a conditionthat the vehicle is not, pending the determination of the25proceedings for the offence, removed from the State,sold, destroyed or otherwise disposed of, pending thedetermination of the proceedings for the offence.
(6) If a vehicle released on the giving of security referred to insubsection (5)(b) is removed from the State, sold, destroyed or other-30wise disposed of without the leave of the court, the court may orderthe forfeiture of the security.
157.—(1) Where a person is convicted on indictment of an offenceunder section 149 and a vehicle was used by the person for the pur-pose of committing or facilitating the commission of the offence, the35court concerned may, in addition to or instead of any penalty that itmay impose under section 149, order the vehicle with its equipment,fittings and furnishings, or the appropriate share thereof, to be for-feited to the State and may make such other orders as it considersnecessary or expedient for the purpose of giving effect to the40forfeiture.
(2) Subsection (1) shall not apply to a person unless the personconvicted is—
(a) the owner of, or of a share in, the vehicle concerned, or
(b) a director or manager of a company which is the owner of,45or of a share in, the vehicle concerned, or
187
Forfeiture of ship,aircraft or othervehicle.
Interpretation (Part10).
(c) subject to subsection (3), the person in charge of thevehicle concerned.
(3) In a case where the person convicted is the person in chargeof the vehicle concerned, subsection (1) shall not apply unless thepersons referred to in paragraph (a) or (b) knew or could with 5reasonable diligence have discovered that the vehicle was being usedfor the purpose of the commission of an offence under section 149.
(4) Whenever an order is made under this section, a member ofthe Garda Síochána may, for the purpose of giving effect thereto—
(a) seize and detain the vehicle concerned, and 10
(b) do such other things as are authorised by the order or arenecessary for the purpose aforesaid.
(5) A court shall not order a vehicle to be forfeited under thissection in a case where a person claiming to be the owner of it orotherwise interested in it applies to be heard by the court, unless an 15opportunity has been given to the person to show cause why theorder should not be made.
(6) In considering whether to make an order under this section,the court shall have regard—
(a) to the value of the property, and 20
(b) to the likely financial and other effects, on the personwhose property it is proposed to forfeit, of the making ofthe order (taken together with any other order that thecourt contemplates making).
(7) A court may, in making an order under this section, include 25such provisions in that order, or, as the case may require, may makean order supplemental to that order that contains such provisions, asappear to it to be necessary to protect any interest in the propertythe subject of the order, of a person other than the person in respectof whom subsection (1) applies. 30
(8) An order under this section shall not take effect until the ordi-nary time for instituting an appeal against the order or the convictionconcerned has expired or, where such an appeal is instituted, until itor any further appeal is finally decided or abandoned or the ordinarytime for instituting any further appeal has expired. 35
(9) In this section, “owner”, in relation to a vehicle which is thesubject of a hire-purchase agreement (within the meaning of theConsumer Credit Act 1995), includes the person in possession of itunder that agreement.
PART 10 40
Transitional, etc., provisions
158.—In this Part—
“Act of 1935” means the Aliens Act 1935;
“Act of 1996”means the Refugee Act 1996;
188
“Act of 1999” means the Immigration Act 1999;
“Act of 2000” means the Illegal Immigrants (Trafficking) Act 2000;
“Act of 2003” means the Immigration Act 2003;
“Act of 2004” means the Immigration Act 2004;
“Order of 1946” means the Aliens Order 1946 (S.I. 395 of 1946);5
“Regulations of 2006” means the European Communities (Eligibilityfor Protection) Regulations 2006 (S.I. No. 518 of 2006).
159.—(1) A visa or transit visa issued by or on behalf of the Mini-ster before the coming into operation of this subsection shall, untilthe date on which it expires or is revoked, be deemed to be a visa10or a transit visa granted under Part 3; and the provisions of this Actshall apply to that visa or transit visa.
(2) (a) Subject to subsection (12), a person, other than a personto whom section 163(1) applies, who, before the date onwhich this subsection comes into operation, has been15granted—
(i) a permission within the meaning of the Act of 2004, or
(ii) a permission to enter, be present in or to reside in theState granted under any other enactment or powerrelating to entry into, or presence or residence in20the State,
and the presence of whom in the State, on that date, islawful pursuant to that permission, shall be deemed, forthe purposes of this Act, to be lawfully present in theState until the date on which that permission expires or25is revoked.
(b) A permission to which paragraph (a) applies shall bedeemed to be a permission, granted subject to the con-ditions to which that permission was subject, to enter, bepresent or to reside in the State under Part 4 or, as the30case may be, Part 5, and the provisions of this Act shallapply to that permission.
(c) Where the procedure specified in section 3 of the Act of1999 is followed in respect of a person to whom section163(1) applies and, after the date on which this subsection35comes into operation, that person is granted a permissionto remain in the State, the permission so granted shall bedeemed to be a permission to reside in the State grantedunder Part 5, and the provisions of this Act shall applyaccordingly.40
(3) (a) Where, before the date on which this subsection comesinto operation, a stamp, inscription or similar indicatorhas been placed on, or otherwise attached to, the traveldocument of a foreign national as evidence of his or herpermission to enter the State, that stamp, inscription or45indicator shall, on and after that date and until the dateon which that permission expires or is revoked bedeemed to be an entry permit issued under section 29,and the provisions of this Act shall apply accordingly.
189
Immigrationmatters.
(b) Where, before the date on which this subsection comesinto operation, a foreign national was the holder of aregistration certificate obtained, or deemed to have beenobtained, under section 9 of the Act of 2004, that certifi-cate shall, on and after that date and until the date on 5which it is expressed to expire or is revoked, be deemedto be a residence permit issued under section 44, and theprovisions of this Act shall apply accordingly.
(4) Any information provided by a person for the purposes ofthe register— 10
(a) kept under Article 11 of the Order of 1946, or
(b) established under section 9 of the Act of 2004,
shall, upon the coming into operation of this subsection, be deemedto be information provided for the purposes of the Register ofForeign Nationals, and the provisions of this Act, insofar as they 15apply to the Register of Foreign Nationals, shall apply accordingly.
(5) Where, before the date on which this subsection comes intooperation, a foreign national has made an application for the renewalof a permission referred to in subsection (2)(a), and a decision inrespect of that application has not been made by that date, the appli- 20cation shall be deemed to be an application made under section 39,and the provisions of this Act shall apply accordingly.
(6) Where, before the date on which this subsection comes intooperation, a foreign national has made an application for the modifi-cation of conditions of a permission referred in subsection (2)(a), and 25a decision in respect of that application has not been made by thatdate, the application shall be deemed to be an application madeunder section 42, and the provisions of this Act shall applyaccordingly.
(7) Where, before the date on which this subsection comes into 30operation, the Minister has notified a foreign national that he orshe proposes to modify the conditions of a permission referred to insubsection (2)(a), and a decision in respect of that proposal has notbeen made by that date, the proposal shall be deemed to be a pro-posal made under section 43, and the provisions of this Act shall 35apply accordingly.
(8) Where, before the date on which this subsection comes intooperation, the Minister has notified a foreign national that he or sheproposes to revoke a permission referred to in subsection (2)(a), anda decision in respect of that proposal has not been made by that 40date, section 50 or, as the case may be, section 51 shall apply as if theproposal were a decision under section 48 or, as the case may be, aproposal under section 51, and the provisions of this Act shall applyaccordingly.
(9) (a) The Minister shall make arrangements for the issue of a 45residence permit to each foreign national who, althoughlawfully present in the State on the coming into operationof this subsection, was not required to comply with therequirements as to registration provided in—
(i) Article 11 of the Order of 1946, by virtue of subpara- 50graph (a) or (b) of Article 11(6) of that Order, or
190
(ii) section 9 of the Act of 2004, by virtue of paragraph(a) or (b) of section 9(6) of that Act.
(b) The arrangements referred to in paragraph (a) shall,where necessary and appropriate, include arrangementsfor the grant of a residence permission to the foreign5national concerned.
(c) The Minister shall publish details of the arrangementsreferred to in paragraph (a).
(10) Subject to this Act and to sections 160(2) and 163(1), aforeign national who immediately before the coming into operation10of this subsection was unlawfully present in the State shall, for thepurposes of this Act, continue to be unlawfully present in the State.
(11) Where, before the date on which this subsection comes intooperation, an application has been made under section 4 of the Actof 2004 (other than an application by a person to whom section15160(1) or 163(1) applies), and a final decision in respect of that appli-cation has not been made by that date, that application shall bedeemed—
(a) in the case of an application for permission to land in orotherwise enter the State, to be an application for an20entry permission, and
(b) in any other case, to be an application for a residencepermission,
and the provisions of this Act shall apply accordingly.
(12) (a) A person who, before the date on which this subsection25comes into operation, has been granted—
(i) a long-term residence permission, or
(ii) a permission to remain in the State without conditionas to time,
the presence of whom in the State, on that date, is lawful30pursuant to that permission, shall be deemed to be a per-son to whom a long-term residence permission has beengranted under section 46, and, subject to paragraph (b),the provisions of this Act shall apply as if that permissionwas granted on that date.35
(b) A long-term residence permission referred to in paragraph(a)(i) shall be valid for the unexpired period of thatpermission.
(13) Where, before the date on which this subsection comes intooperation, a foreign national has applied to the Minister for a long-40term residence permission (within the meaning of subsection (12)),and a final decision has not been made in respect of the applicationby that date, the application shall be deemed to be an applicationfor a long-term residence permission under section 46, and the pro-visions of this Act shall apply accordingly.45
(14) Where, before the date on which this subsection comes intooperation, a foreign national has made an application for the renewalof a permission referred to in subsection (12)(a), and a decision in
191
Deportation,removal andexclusion.
respect of that application has not been made by that date, the appli-cation shall be deemed to be an application made under section 47,and the provisions of this Act shall apply accordingly.
(15) Where, before the date on which this subsection comes intooperation, the Minister has notified a foreign national that he or she 5proposes to revoke a permission referred to in subsection (12)(a),and a decision in respect of that proposal has not been made by thatdate, section 52 shall apply as if the proposal were a proposal undersection 51 to revoke a long-term residence permission and the pro-visions of this Act shall apply accordingly. 10
(16) Any fingerprints taken under the Second Schedule to the Actof 2004 shall, upon the coming into operation of this subsection, bedeemed to be biometric information provided (on the date on whichthe fingerprints were taken) under section 124; and the provisions ofsection 124 shall apply to those fingerprints. 15
(17) In subsection (12)—
(a) a “long-term residence permission” referred to in para-graph (a)(i) of that section means a permission to remainin the State granted under any arrangements relating tolong-term residence in force prior to the date on which 20that subsection comes into operation;
(b) a “permission to remain in the State without condition asto time” means a permission granted, under any arrange-ments in force prior to the date on which that subsectioncomes into operation, to a person who has been lawfully 25resident in the State for a period of 8 years and in respectof whom an endorsement has been placed on his or hertravel document to the effect that he or she is permittedto remain in the State without condition as to time.
160.—(1) (a) Where— 30
(i) before the date on which this subsection comes intooperation, a notification was issued to a foreignnational under subsection (3)(a) of section 3 of theAct of 1999, and
(ii) a final decision in respect of the proposal to which 35notification relates has not been made by that date,
the provisions of that section shall, notwithstandingsection 5, continue to apply in respect of that foreignnational.
(b) Subject to paragraph (c), the presence in the State of a 40foreign national to whom paragraph (a) applies shall belawful only in so far as is necessary to allow the pro-cedures specified in the provision referred to in that para-graph to be completed.
(c) Paragraph (b) is without prejudice to— 45
(i) any exclusion order made under section 4 of the Actof 1999, and
(ii) any order or determination made by the Ministerunder any enactment, or under any other power of
192
the Minister, relating to the entry into, or presenceor residence in, the State, which requires the foreignnational to leave the State or which prohibits theforeign national’s entry into or presence in the State.
(2) Where—5
(a) after the date on which this subsection comes into oper-ation, the enactments referred to in section 163(1) con-tinue, in accordance with that provision, to apply inrelation to a foreign national to whom that subsectionapplies, and10
(b) a notification is issued to that foreign national under sub-section (3)(a) of section 3 of the Act of 1999,
the presence in the State of that foreign national shall be lawful onlyin so far as is necessary to allow the procedures specified in the pro-vision referred to in paragraph (b) to be completed.15
(3) Where immediately before the coming into operation of thissubsection, a foreign national was a foreign national to whom section5 of the Act of 2003 applied, that enactment shall continue to haveeffect for the purposes of that section.
(4) A deportation order made under section 3 of the Act of 199920shall, notwithstanding the repeal of that section by section 5, continueto apply, and that enactment shall continue to have effect for all thepurposes of that order.
(5) A determination by the Minister, made before the coming intooperation of this subsection, that it is conducive to the public good25that a foreign national remain outside the State, shall continue toapply after the coming into operation of this subsection.
(6) Where—
(a) an exclusion order is made under section 4 of the Act of1999, or30
(b) an order or determination is made by the Minister underany enactment or under any other power of the Ministerrelating to the entry into, or presence or residence in, theState, which requires a foreign national to leave the Stateor which prohibits that foreign national’s entry into or35presence in the State,
that order or determination shall continue to apply after the cominginto operation of this subsection, and any enactment concerned shallcontinue to have effect for the purposes of that order or deter-mination.40
161.—(1) A person who, before the date on which this subsectioncomes into operation, was appointed by the Minister to be an immi-gration officer, and held such office immediately before that dateshall, on and after that date, be deemed to be an immigration officerfor the purpose of the performance of his or her functions under45this Act.
(2) Any reference in any enactment in force immediately beforethe date on which this subsection comes into operation (includingany enactment which continues to apply in accordance with section
193
Immigrationofficers.
Detention.
Protection matters.
163(1)) to an immigration officer shall, on and after that date, beconstrued as a reference to an immigration officer appointed underthis Act or to a person deemed under subsection (1) to be an immi-gration officer.
(3) An immigration officer appointed under this Act, or a person 5deemed under subsection (1) to be an immigration officer, shall haveauthority to perform the functions of an immigration officerappointed before the coming into operation of this subsection for thepurposes of any enactment referred to in subsection (2) but subjectto any provision of this Act. 10
162.—(1) Where, immediately before the coming into operationof this subsection, a person was detained in a place of detentionpursuant to any enactment relating to the entry into, or presence orresidence in, the State of persons, then his or her continued detentionin that place is authorised by virtue of this section, this Act shall 15apply accordingly, and any period of detention under that enactmentshall be included in reckoning a period for the purpose of section60(5).
(2) Pending the making of regulations under section 140(1), rulesor regulations made under section 9 of the Act of 1996 or section 35 20of the Prisons Act 2007 relating to the treatment of personsdetained under—
(a) the Act of 1996,
(b) the Act of 1999, or
(c) the Act of 2003, 25
shall, except where they may be inconsistent with this Act, continuein force and shall apply and have effect, with any necessary modifi-cations, in relation to a foreign national detained under this Act.
163.—(1) Where, before the date on which this subsection comesinto operation, a person has made an application for a declaration 30under section 8 of the Act of 1996 in respect of which a report undersection 13 of that Act has been prepared, and, by that date—
(a) the Minister has not yet decided, pursuant to that appli-cation, whether to give, or refuse to give, that person adeclaration under section 17 of the Act of 1996, 35
(b) the Minister has decided, pursuant to that application, torefuse to give that person a declaration and a notificationunder subsection (3)(a) of section 3 of the Act of 1999has not yet been issued to that person,
(c) the person has made an application for subsidiary protec- 40tion under Regulation 4 of the Regulations of 2006, inrespect of which a final determination has not yet beenmade, or
(d) a notification has been issued to the person under subsec-tion (3)(a) of section 3 of the Act of 1999, and a final 45decision in respect of the proposal to which the notifi-cation relates has not yet been made,
194
then, notwithstanding section 5, the enactments referred to in thatsection shall, subject to this section, continue to apply in respect ofall matters relating to any application or procedure referred to inparagraphs (a) to (d) that relates to that person, until those mattersare concluded.5
(2) Subsection (1) shall not apply to section 5 of the Act of 2000.
(3) (a) Where—
(i) a person has, before the date on which this subsectioncomes into operation, applied for a declarationunder section 8 of the Act of 1996, and10
(ii) immediately before that date, a report under section13 of that Act in respect of that application has notyet been prepared,
the application concerned shall be deemed to be a protec-tion application and the provisions of this Act shall, sub-15ject to paragraph (b) and subsection (4), applyaccordingly.
(b) (i) Before investigating under this Act an application towhich paragraph (a) applies, the Minister shall affordthe applicant an opportunity to submit, within a20specified period, a protection application that is inaccordance with section 81(13).
(ii) Where the applicant referred to in subparagraph (i)fails to submit the protection application referred toin that subparagraph within the period specified, the25application made by him or her under section 8 ofthe Act of 1996 shall be deemed to be a protectionapplication and the provisions of this Act shallapply accordingly.
(4) The Minister shall, as soon as practicable after this subsection30comes into operation, give each person to whom subsection (3)applies a statement in writing explaining the effect of this sectionand of Part 7, and the procedures under which his or her applicationfor protection will be dealt with.
(5) (a) Where, before the date on which this subsection comes35into operation—
(i) a person has, under section 17(7) of the Act of 1996,requested the consent of the Minister to make afurther application for a declaration under that Act,and40
(ii) the Minister has not made a final decision in relationto that request by that date,
the request shall be deemed to be an application to whichsection 98 applies, and this Act shall apply accordingly.
(b) A person, including a person to whom subsection (1)45applies, to whom the Minister has refused to give a dec-laration under the Act of 1996 may not, following thecoming into operation of this subsection, make a protec-tion application without the consent of the Ministerunder section 97.50
195
(6) Where, before the date on which this subsection comes intooperation—
(a) a refugee to whom section 18(1) of the Act of 1996applied, or
(b) a person to whom Regulation 16(1) of the Regulations of 52006 applied,
has made an application to the Minister under that Act or thoseRegulations, as the case may be, for permission to be granted to amember of his or her family to enter and reside in the State, and theMinister has not made a final decision in respect of that application 10by that date, then, notwithstanding section 5, that Act or those Regu-lations, as the case may be, shall continue to apply in respect of allmatters relating to that application, until those matters areconcluded.
(7) Where, following the coming into operation of this subsection, 15a person purports to make an application to the Minister undersection 18(1) of the Act of 1996 or Regulation 16(1) of the Regu-lations of 2006, that application shall be deemed to be an applicationunder section 116 and the provisions of this Act shall applyaccordingly. 20
(8) (a) A person who, before the date on which this subsectioncomes into operation—
(i) was given a declaration by the Minister under the Actof 1996 that he or she was a refugee, or
(ii) was otherwise recognised by the Minister as a refugee, 25
shall, subject to paragraph (c), be deemed for the pur-poses of this Act to be a person to whom a protectiondeclaration has been granted under this Act and the pro-visions of this Act shall apply accordingly.
(b) A person who, before the date on which this subsection 30comes into operation—
(i) was determined under the Regulations of 2006 to bea person eligible for subsidiary protection in theState, or
(ii) was otherwise recognised by the Minister as a person 35so eligible,
shall, subject to paragraph (c), be deemed for the pur-poses of this Act to be a person to whom a protectiondeclaration has been granted under this Act and the pro-visions of this Act shall apply accordingly. 40
(c) Paragraphs (a) and (b) shall not apply—
(i) where a declaration, determination or recognitionreferred to in either paragraph has, before the dateon which this subsection comes into operation, beenrevoked, or 45
(ii) to a person referred to in either paragraph who has,before the date on which this subsection comes into
196
operation, been granted a certificate of naturalis-ation under the Irish Nationality and CitizenshipActs 1956 to 2004.
(d) A person to whom paragraph (a) or (b) of subsection (1)applies who—5
(i) is given a declaration by the Minister that he or sheis a refugee, or
(ii) is determined to be a person eligible for subsidiaryprotection in the State,
shall be deemed for the purposes of this Act to be a per-10son to whom a protection declaration has been grantedunder this Act and the provisions of this Act shall applyaccordingly.
(9) Where, before the date on which this subsection comes intooperation, a person has been the subject of a requirement under15section 9(5)(a) of the Act of 1996 which, immediately before thatdate, still has effect, that requirement shall be deemed to be arequirement imposed on that person under section 75(5)(d).
(10) Any fingerprints taken under section 9A (as substituted bysection 7(d) of the Act of 2003) of the Act of 1996 shall, upon the20coming into operation of this subsection, be deemed to be biometricinformation provided (on the date on which the fingerprints weretaken) under section 124, and the provisions of section 124 shall applyto those fingerprints.
(11) Any information provided to the Refugee Applications Com-25missioner under the Act of 1996 shall, on and after the date on whichthis subsection comes into operation, be deemed to be informationprovided to the Minister under this Act.
(12) (a) Each record held by the Refugee Applications Com-missioner immediately before the date on which this sub-30section comes into operation is on that date transferredto the Minister and shall, on and after that date, bedeemed to be a record held by the Minister.
(b) In paragraph (a), “record” includes any book, index ordocument and any information in electronic or other non-35legible form which is capable of being converted into apermanent legible form.
(13) Where, on the date on which this subsection comes into oper-ation, any legal proceedings are pending in which the Refugee Appli-cations Commissioner is the plaintiff or the prosecutor and the pro-40ceedings relate to functions which, on and after that date, arefunctions of the Minister, the proceedings shall be deemed to beproceedings in which the Minister is the plaintiff or, as the case maybe, the prosecutor and, accordingly, the Minister shall, in so far asthe proceedings relate to those functions, be substituted in those pro-45ceedings for the Refugee Applications Commissioner, or added inthose proceedings to it as may be appropriate, and those proceedingsshall not abate by reason of such substitution or addition.
(14) Where, on the date on which this subsection comes into oper-ation, any legal proceedings are pending to which the Refugee Appli-50cations Commissioner is a defendant and the proceedings relate to
197
Protection ReviewTribunal.
any functions which on and after that date are functions of the Mini-ster, the Minister shall be substituted for the Refugee ApplicationsCommissioner in those proceedings.
(15) (a) Where, before the date on which this subsection comesinto operation, the Minister has sent a notice under 5section 21(3)(a) of the Act of 1996 to a person, and afinal decision on the matter has not been made by thatdate, the provisions of that section shall, notwithstandingthe repeal of that section by section 5 of this Act, con-tinue to apply. 10
(b) Where, before the date on which this subsection comesinto operation, the Minister has informed a person of hisor her proposal to revoke or refuse to renew, underRegulation 14 of the Regulations of 2006, a permissiongranted under Regulation 4 of those Regulations, and a 15final determination in respect of that matter has not beenmade by that date, the provisions of Regulation 14 ofthe Regulations of 2006 shall, notwithstanding section 5,continue to apply.
(16) The functions conferred on the Refugee Applications Com- 20missioner by the enactments that continue to apply under subsection(1), are, on and after the date on which this subsection comes intooperation, and for the purposes referred to in that subsection, trans-ferred to the Minister.
(17) A temporary residence certificate issued under section 9(3) 25of the Act of 1996 before the coming into operation of this subsec-tion to a person to whom subsection (3)(a) applies shall, on the com-ing into operation of this subsection, be deemed to be a protectionapplication entry permit issued under this Act, and the provisions ofthis Act shall apply accordingly to such a permit. 30
(18) A permission to enter and to reside in the State grantedunder section 18 of the Act of 1996 or Regulation 16(4) of the Regu-lations of 2006 to a person before the date on which this subsectioncomes into operation shall, on and after that date, be deemed to bea permission, subject to the same conditions, granted to that person 35under section 116.
(19) A person to whom, before the date on which this subsectioncomes into operation, leave to enter and remain in the State hasbeen given under section 24 of the Act of 1996 shall be, on and afterthat date, deemed to be a person to whom permission to enter and 40remain in the State has been given, subject to the same conditions,under section 113 or, as the case may be, section 114.
(20) Any information entered in the register referred to in section24(1) of the Act of 1996 shall, upon the coming into operation ofthis subsection, be deemed to be information entered in the register 45referred to in section 113(1).
(21) In this section, “Refugee Applications Commissioner” hasthe same meaning as it has in the Act of 1996.
164.—(1) The administration and business in connection with theperformance of any of the functions of the former Tribunal under 50the Act of 1996 are hereby transferred, with effect from the establish-ment day, to the Tribunal.
198
(2) For the purposes of subsection (1), and subject to subsection(4), the chairperson of the Tribunal shall perform the functions ofthe chairperson of the former Tribunal under the Refugee Act 1996.
(3) A member of the Tribunal who—
(a) immediately before the establishment day, was a member5of the former Tribunal to whom an appeal under section16 of the Act of 1996 had been assigned under paragraph13 of the Second Schedule to that Act, and
(b) by the establishment day, had not yet decided the appeal,
shall decide the appeal in accordance with the Act of 1996 and, for10that purpose, perform the functions of a member of the former Tri-bunal under that Act.
(4) The Registrar of the Tribunal may assign to members of theTribunal appeals which—
(a) were brought under section 16 of the Act of 1996, but not15assigned, before the establishment day,
(b) were assigned before the establishment day to a memberof the former Tribunal who is not a member of the Tri-bunal, and which were not decided by the establishmentday, or20
(c) are brought by a person to whom section 163(1) applies,following a recommendation under section 13(1) of theAct of 1996 (as applied by section 163(1)) that that personshould not be declared to be a refugee.
(5) A member of the Tribunal to whom an appeal is assigned25under subsection (4) shall decide that appeal in accordance with theAct of 1996 and, for that purpose, perform the functions of a memberof the former Tribunal under that Act.
(6) The person who, immediately before the date on which thissubsection comes into operation, was the chairperson of the former30Tribunal shall, on and after that date, be deemed to have beenappointed chairperson of the Tribunal in accordance with section101(4) and shall hold office as such for the unexpired period of hisor her office as chairperson of the former Tribunal.
(7) Where the former Tribunal is a party to legal proceedings35pending immediately before the establishment day which relate tofunctions which, on and after that date, are functions of the Tribunal,the Tribunal shall, insofar as the proceedings relate to those func-tions, be substituted in the proceedings for the former Tribunal andthe proceedings shall not abate by reason of the substitution.40
(8) In this section—
199
Continuity ofstatutory timeperiods.
Continuity ofvalidity of traveldocuments.
Judicial review.
“establishment day” means the day appointed by the Minister undersection 100 on which the Protection Review Tribunal standsestablished;
“former Tribunal” means the Refugee Appeals Tribunal establishedunder section 15 of the Act of 1996. 5
165.—Where a period of time specified in a provision of an enact-ment repealed or instrument revoked by section 5 has not expired atthe commencement of any corresponding provision of this Act, thisAct shall have effect as if the corresponding provision had been inforce when the period began to run. 10
166.—A travel document issued before the date on which thissection comes into operation under—
(a) section 4, 18(6) or 24(3) of the Refugee Act 1996, or
(b) Regulation 18 of the Regulations of 2006,
shall, on and after that date, be deemed to be a travel document 15issued (on the date on which the original was issued) under section115.
167.—(1) (a) Notwithstanding the repeal by this Act of section 5 ofthe Act of 2000, the validity of any matter referred toin subsection (1) of that section shall not be questioned 20otherwise than by way of an application for judicialreview under Order 84 of the Rules of the SuperiorCourts (S.I. No. 15 of 1986) (“the Order”).
(b) An application, brought on or after the date on which thissubsection comes into operation, for leave to apply for 25judicial review under the Order in respect of a matterreferred to in paragraph (a) shall be deemed to be anapplication under section 133 and the provisions of thatsection shall apply accordingly.
(2) (a) Where, on or after the date on which this subsection comes 30into operation, the High Court, following a review of arecommendation under section 13 of the Act of 1996,orders that an application made under section 8 of thatAct be reconsidered, that application, for the purposes ofsuch re-consideration, shall be deemed to be a protection 35application, and the provisions of this Act shall applyaccordingly.
(b) Where paragraph (a) applies, the Minister shall afford theapplicant concerned an opportunity to submit, within aspecified period, a protection application that is in 40accordance with section 81(13).
(c) Where the applicant referred to in paragraph (b) fails tosubmit a protection application referred to in that para-graph within the period specified, the application madeby him or her under section 8 of the Act of 1996 shall, 45for the purposes of the re-consideration referred to inparagraph (a), be deemed to be a protection application.
200
(3) Where, after the establishment day (within the meaning ofsection 164), the High Court, following a review of a recommend-ation of the Refugee Appeals Tribunal under section 16 of the Actof 1996, orders that an appeal under section 16 of that Act be re-considered, that appeal, for the purposes of such re-consideration,5shall be deemed to be an appeal to which section 163(4)(a) applies.
(4) (a) Where, on or after the date on which this subsection comesinto operation, the High Court, following a review of adecision of the Minister under section 17 of the Act of1996 to refuse to give an applicant a declaration, orders10that an application made under section 8 of that Act bereconsidered, that application, for the purposes of suchre-consideration, shall be deemed to be a protectionapplication, and the provisions of this Act shall applyaccordingly.15
(b) Where paragraph (a) applies, the Minister shall afford theapplicant concerned an opportunity to submit, within aspecified period, a protection application that is inaccordance with section 81(13).
(c) Where the applicant referred to in paragraph (b) fails to20submit a protection application referred to in that para-graph within the period specified, the application madeby him or her under section 8 of the Act of 1996 shall,for the purposes of the re-consideration referred to inparagraph (a), be deemed to be a protection application.25
168.—(1) A vehicle detained under section 3 of the Act of 2000shall, upon the coming into operation of this subsection, be deemedto be a vehicle detained under section 154, and the provisions of thisAct shall apply to that vehicle.
(2) A vehicle forfeited, or liable to an order of forfeiture, under30section 4 of the Act of 2000 shall, upon the coming into operation ofthis subsection, be deemed to be a vehicle forfeited, or liable to anorder of forfeiture, under section 155, and the provisions of this Actshall apply to that vehicle.
201
Transitionalarrangementsrelating to repeal ofIllegal Immigrants(Trafficking) Act2000.
SCHEDULE 1
THE CONVENTION RELATING TO THE STATUS OFREFUGEES DONE AT GENEVA ON 28 JULY 1951
PREAMBLE
THE HIGH CONTRACTING PARTIES 5
Considering that the Charter of the United Nations and the Uni-versal Declaration of Human Rights approved on 10 December 1948by the General Assembly have affirmed the principle that humanbeings shall enjoy fundamental rights and freedoms without dis-crimination, 10
Considering that the United Nations has, on various occasions,manifested its profound concern for refugees and endeavoured toassure refugees the widest possible exercise of these fundamentalrights and freedoms,
Considering that it is desirable to revise and consolidate previous 15international agreements relating to the status of refugees and toextend the scope of and the protection accorded by such instrumentsby means of a new agreement,
Considering that the grant of asylum may place unduly heavy bur-dens on certain countries, and that a satisfactory solution of a prob- 20lem of which the United Nations has recognized the internationalscope and nature cannot therefore be achieved without internationalco-operation,
Expressing the wish that all States, recognizing the social andhumanitarian nature of the problem of refugees, will do everything 25within their power to prevent this problem from becoming a causeof tension between States,
Noting that the United Nations High Commissioner for Refugeesis charged with the task of supervising international conventions pro-viding for the protection of Refugees, and recognizing that the effec- 30tive co-ordination of measures taken to deal with this problem willdepend upon the co-operation of States with the High Com-missioner,
Have agreed as follows.
CHAPTER I 35
GENERAL PROVISIONS
Definition of the term “Refugee”
A. For the purposes of the present Convention, the term “refugee”shall apply to any person who:
(1) Has been considered a refugee under the Arrangements of 12 40May 1926 and 30 June 1928 or under the Conventions of 28 October1933 and 10 February 1938, the Protocol of 14 September 1939 orthe Constitution of the International Refugee Organization;
Decisions of non-eligibility taken by the International RefugeeOrganization during the period of its activities shall not prevent the 45status of refugee being accorded to persons who fulfil the conditionsof paragraph 2 of this section;
202
(2) As a result of events occurring before 1 January 1951 andowing to well-founded fear of being persecuted for reasons of race,religion, nationality, membership of a particular social group or pol-itical opinion, is outside the country of his nationality and is unableor, owing to such fear, is unwilling to avail himself of the protection5of that country; or who, not having a nationality and being outsidethe country of his former habitual residence as a result of suchevents, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, theterm “the country of his nationality” shall mean each of the countries10of which he is a national, and a person shall not be deemed to belacking the protection of the country of his nationality if, withoutany valid reason based on well-founded fear, he has not availed him-self of the protection of one of the countries of which he is a national.
B. (1) For the purposes of this Convention, the words “events occur-15ring before 1 January 1951” in Article 1, Section A, shall be under-stood to mean either:
(a) “events occurring in Europe before 1 January 1951” or
(b) “events occurring in Europe or elsewhere before 1January 1951”20
and each Contracting State shall make a declaration at the time ofsignature, ratification or accession, specifying which of these mean-ings it applies for the purpose of its obligations under thisConvention.
(2) Any Contracting State which has adopted alternative (a) may25at any time extend its obligations by adopting alternative (b) bymeans of a notification addressed to the Secretary-General of theUnited Nations.
C. This Convention shall cease to apply to any person falling underthe terms of Section A if:30
(1) He has voluntarily re-availed himself of the protection of thecountry of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it; or
(3) He has acquired a new nationality, and enjoys the protectionof the country of his new nationality; or35
(4) He has voluntarily re-established himself in the country whichhe left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connexion withwhich he has been recognized as a refugee have ceased to exist, con-tinue to refuse to avail himself of the protection of the country of40his nationality;
Provided that this paragraph shall not apply to a refugee failingunder section A(1) of this Article who is able to invoke compellingreasons arising out of previous persecution for refusing to avail him-self of the protection of the country of nationality;45
(6) Being a person who has no nationality he is, because the cir-cumstances in connexion with which he has been recognized as arefugee have ceased to exist, able to return to the country of hisformer habitual residence;
203
Provided that this paragraph shall not apply to a refugee fallingunder section A(1) of this Article who is able to invoke compellingreasons arising out of previous persecution for refusing to return tothe country of his former habitual residence.
D. This Convention shall not apply to persons who are at present 5receiving from organs or agencies of the United Nations other thanthe United Nations High Commissioner for Refugees protection orassistance.
When such protection or assistance has ceased for any reason,without the position of such persons being definitively settled in 10accordance with the relevant resolutions adopted by the GeneralAssembly of the United Nations, these persons shall ipso facto beentitled to the benefits of this Convention.
E. This Convention shall not apply to a person who is recognized bythe competent authorities of the country in which he has taken resi- 15dence as having the rights and obligations which are attached to thepossession of the nationality of that country.
F. The provisions of this Convention shall not apply to any personwith respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or 20a crime against humanity, as defined in the internationalinstruments drawn up to make provision in respect ofsuch crimes;
(b) he has committed a serious non-political crime outside thecountry of refuge prior to his admission to that country 25as a refugee;
(c) he has been guilty of acts contrary to the purposes andprinciples of the United Nations.
General obligations
Every refugee has duties to the country in which he finds himself, 30which require in particular that he conform to its laws and regu-lations as well as to measures taken for the maintenance of publicorder.
Non-discrimination
The Contracting States shall apply the provisions of this Conven- 35tion to refugees without discrimination as to race, religion or countryof origin.
Article 4Religion
The Contracting States shall accord to refugees within their terri- 40tories treatment at least as favourable as that accorded to theirnationals with respect to freedom to practise their religion and free-dom as regards the religious education of their children.
Article 5
Rights granted apart from this Convention 45
Nothing in this Convention shall be deemed to impair any rightsand benefits granted by a Contracting State to refugees apart fromthis Convention.
204
Article 6The term “in the same circumstances”
For the purpose of this Convention, the term “in the same circum-stances” implies that any requirements (including requirements as tolength and conditions of sojourn or residence) which the particular5individual would have to fulfil for the enjoyment of the right in ques-tion, if he were not a refugee, must be fulfilled by him, with theexception of requirements which by their nature a refugee isincapable of fulfilling.
Article 710Exemption from reciprocity
1. Except where this Convention contains more favourable pro-visions, a Contracting State shall accord to refugees the same treat-ment as is accorded to aliens generally.
2. After a period of three years’ residence, all refugees shall enjoy15exemption from legislative reciprocity in the territory of the Con-tracting States.
3. Each Contracting State shall continue to accord to refugees therights and benefits to which they were already entitled, in theabsence of reciprocity, at the date of entry into force of this Conven-20tion for that State.
4. The Contracting States shall consider favourably the possibility ofaccording to refugees, in the absence of reciprocity, rights andbenefits beyond those to which they are entitled according to para-graphs 2 and 3, and to extending exemption from reciprocity to refu-25gees who do not fulfil the conditions provided for in paragraphs 2and 3.
5. The provisions of paragraphs 2 and 3 apply both to the rights andbenefits referred to in articles 13, 18, 19, 21 and 22 of this Conventionand to rights and benefits for which this Convention does not30provide.
Article 8
Exemption from exceptional measures
With regard to exceptional measures which may be taken againstthe person, property or interests of nationals of a foreign State, the35Contracting States shall not apply such measures to a refugee who isformally a national of the said State solely on account of suchnationality. Contracting States which, under their legislation, areprevented from applying the general principle expressed in thisarticle, shall, in appropriate cases, grant exemptions in favour of40such refugees.
Article 9
Provisional measures
Nothing in this Convention shall prevent a Contracting State, intime of war or other grave and exceptional circumstances, from tak-45ing provisionally measures which it considers to be essential to thenational security in the case of a particular person, pending a deter-mination by the Contracting State that that person is in fact a refugeeand that the continuance of such measures is necessary in his case inthe interests of national security.50
205
Article 10Continuity of residence
1. Where a refugee has been forcibly displaced during the SecondWorld War and removed to the territory of a Contracting State, andis resident there, the period of such enforced sojourn shall be con- 5sidered to have been lawful residence within that territory.
2. Where a refugee has been forcibly displaced during the SecondWorld War from the territory of a Contracting State and has, priorto the date of entry into force of this Convention, returned there forthe purpose of taking up residence, the period of residence before 10and after such enforced displacement shall be regarded as one unin-terrupted period for any purposes for which uninterrupted residenceis required.
Article 11Refugee seamen 15
In the case of refugees regularly serving as crew members on boarda ship flying the flag of a Contracting State, that State shall givesympathetic consideration to their establishment on its territory andthe issue of travel documents to them on their temporary admissionto its territory particularly with a view to facilitating their establish- 20ment in another country.
CHAPTER IIJURIDICAL STATUS
Article 12Personal status 25
1. The personal status of a refugee shall be governed by the law ofthe country of his domicile or, if he has no domicile, by the law ofthe country of his residence.
2. Rights previously acquired by a refugee and dependent on per-sonal status, more particularly rights attaching to marriage, shall be 30respected by a Contracting State, subject to compliance, if this benecessary, with the formalities required by the law of that State, pro-vided that the right in question is one which would have been recog-nised by the law of that State had he not become a refugee.
Article 13 35Movable and immovable property
The Contracting States shall accord to a refugee treatment asfavourable as possible and, in any event, not less favourable than thataccorded to aliens generally in the same circumstances as regardsthe acquisition of movable and immovable property and other rights 40pertaining thereto, and to leases and other contracts relating to mov-able and immovable property.
Article 14Artistic rights and industrial property
In respect of the protection of industrial property, such as inven- 45tions, designs or models, trade marks, trade names, and of rights inliterary, artistic and scientific works, a refugee shall be accorded inthe country in which he has his habitual residence the same protec-tion as is accorded to nationals of that country. In the territory of any
206
other Contracting State, he shall be accorded the same protection asis accorded in that territory to nationals of the country in which hehas habitual residence.
Article 15
Right of association5
As regards non-political and non-profit-making associations andtrade unions the Contracting State shall accord to refugees lawfullystaying in their territory the most favourable treatment accorded tonationals of a foreign country, in the same circumstances.
Article 1610
Access to courts
1. A refugee shall have free access to the courts of law on the terri-tory of all Contracting States.
2. A refugee shall enjoy in the Contracting State in which he hashis habitual residence the same treatment as a national in matters15pertaining to access to the Courts, including legal assistance andexemption from cautio judicatum solvi.
3. A refugee shall be accorded in the matters referred to in paragraph2 in countries other than that in which he has his habitual residencethe treatment granted to a national of the country of his habitual20residence.
CHAPTER III
GAINFUL EMPLOYMENT
Article 17
Wage-earning employment25
1. The Contracting State shall accord to refugees lawfully staying intheir territory the most favourable treatment accorded to nationalsof a foreign country in the same circumstances, as regards the rightto engage in wage-earning employment.
2. In any case, restrictive measures imposed on aliens or the employ-30ment of aliens for the protection of the national labour market shallnot be applied to a refugee who was already exempt from them atthe date of entry into force of this Convention for the ContractingStates concerned, or who fulfils one of the following conditions:
(a) He has completed three years’ residence in the country;35
(b) He has a spouse possessing the nationality of the countryof residence. A refugee may not invoke the benefits ofthis provision if he has abandoned his spouse;
(c) He has one or more children possessing the nationality ofthe country of residence.40
3. The Contracting States shall give sympathetic consideration toassimilating the rights of all refugees with regard to wage-earningemployment to those of nationals, and in particular of those refugeeswho have entered their territory pursuant to programmes of labourrecruitment or under immigration schemes.45
207
Article 18
Self-employment
The Contracting States shall accord to a refugee lawfully in theirterritory treatment as favourable as possible and, in any event, notless favourable than that accorded to aliens generally in the same 5circumstances, as regards the right to engage on his own accountin agriculture, industry, handicrafts and commerce and to establishcommercial and industrial companies.
Article 19
Liberal professions 10
1. Each Contracting State shall accord to refugees lawfully stayingin their territory who hold diplomas recognised by the competentauthorities of that State, and who are desirous of practising a liberalprofession, treatment as favourable as possible and, in any event, notless favourable than that accorded to aliens generally in the same cir- 15cumstances.
2. The Contracting States shall use their best endeavours consistentlywith their laws and constitutions to secure the settlement of suchrefugees in the territories, other than the metropolitan territory, forwhose international relations they are responsible. 20
CHAPTER IV
WELFARE
Article 20
Rationing
Where a rationing system exists, which applies to the population 25at large and regulates the general distribution of products in shortsupply, refugees shall be accorded the same treatment as nationals.
Article 21
Housing
As regards housing, the Contracting States, in so far as the matter 30is regulated by laws or regulations or is subject to the control ofpublic authorities, shall accord to refugees lawfully staying in theirterritory treatment as favourable as possible and, in any event, notless favourable than that accorded to aliens generally in the same cir-cumstances. 35
Article 22
Public education
1. The Contracting States shall accord to refugees the same treatmentas is accorded to nationals with respect to elementary education.
2. The Contracting States shall accord to refugees treatment as 40favourable as possible, and, in any event, not less favourable thanthat accorded to aliens generally in the same circumstances, withrespect to education other than elementary education and, in part-icular, as regards access to studies, the recognition of foreign schoolcertificates, diplomas and degrees, the remission of fees and charges 45and the award of scholarships.
208
Article 23
Public relief
The Contracting States shall accord to refugees lawfully staying intheir territory the same treatment with respect to public relief andassistance as is accorded to their nationals.5
Article 24
Labour legislation and social security
1. The Contracting States shall accord to refugees lawfully staying intheir territory the same treatment as is accorded to nationals inrespect of the following matters:10
(a) In so far as such matters are governed by laws or regu-lations or are subject to the control of administrativeauthorities: remuneration, including family allowanceswhere these form part of remuneration, hours of work,overtime arrangements, holidays with pay, restrictions on15home work, minimum age of employment, apprenticeshipand training, women’s work and the work of young per-sons, and the enjoyment of the benefit of collectivebargaining;
(b) Social security (legal provisions in respect of employment20injury, occupational diseases, maternity, sickness, dis-ability, old age, death, unemployment, family responsibil-ities and any other contingency which, according tonational laws or regulations, is covered by a social secur-ity scheme), subject to the following limitations:25
(i) There may be appropriate arrangements for the main-tenance of acquired rights and rights in course ofacquisition;
(ii) National laws or regulations of the country of resi-dence may prescribe special arrangements concern-30ing benefits or portions of benefits which are payablewholly out of public funds, and concerning allow-ances paid to persons who do not fulfil the contri-bution conditions prescribed for the award of a nor-mal pension.35
2. The right to compensation for the death of a refugee resultingfrom employment injury or from occupational disease shall not beaffected by the fact that the residence of the beneficiary is outsidethe territory of the Contracting State.
3. The Contracting States shall extend to refugees the benefits of40agreements concluded between them, or which may be concludedbetween them in the future, concerning the maintenance of acquiredrights and rights in the process of acquisition in regard to socialsecurity, subject only to the conditions which apply to nationals ofthe States signatory to the agreements in question.45
4. The Contracting States will give sympathetic consideration toextending to refugees so far as possible the benefits of similar agree-ments which may at any time be in force between such ContractingStates and non-contracting States.
209
CHAPTER VADMINISTRATIVE MEASURES
Article 25Administrative assistance
1. When the exercise of a right by a refugee would normally require 5the assistance of authorities of a foreign country to whom he cannothave recourse, the Contracting States in whose territory he is residingshall arrange that such assistance be afforded to him by their ownauthorities or by an international authority.
2. The authority or authorities mentioned in paragraph 1 shall deliver 10or cause to be delivered under their supervision to refugees suchdocuments or certifications as would normally be delivered to aliensby or through their national authorities.
3. Documents or certifications so delivered shall stand in the steadof the official instruments delivered to aliens by or through their 15national authorities, and shall be given credence in the absence ofproof to the contrary.
4. Subject to such exceptional treatment as may be granted to indi-gent persons, fees may be charged for the services mentioned herein,but such fees shall be moderate and commensurate with those 20charged to nationals for similar services.
5. The provisions of this article shall be without prejudice to articles27 and 28.
Article 26Freedom of movement 25
Each Contracting State shall accord to refugees lawfully in its terri-tory the right to choose their place of residence and to move freelywithin its territory, subject to any regulations applicable to aliensgenerally in the same circumstances.
Article 27 30Identity papers
The Contracting States shall issue identity Papers to any refugeein their territory who does not possess a valid travel document.
Article 28Travel documents 35
1. The Contracting States shall issue to refugees lawfully staying intheir territory travel documents for the purpose of travel outsidetheir territory unless compelling reasons of national security orpublic order otherwise require, and the provisions of the Scheduleto this Convention shall apply with respect to such documents. The 40Contracting States may issue such a travel document to any otherrefugee in their territory; they shall in particular give sympatheticconsideration to the issue of such a travel document to refugees intheir territory who are unable to obtain a travel document from thecountry of their lawful residence. 45
2. Travel documents issued to refugees under previous internationalagreements by parties thereto shall be recognised and treated by the
210
Contracting States in the same way as if they had been issued pursu-ant to this article.
Article 29Fiscal charges
1. The Contracting States shall not impose upon refugees duties,5charges or taxes, of any description whatsoever, other or higher thanthose which are or may be levied on their nationals in similarsituations.
2. Nothing in the above paragraph shall prevent the application torefugees of the laws and regulations concerning charges in respect of10the issue to aliens of administrative documents including identitypapers.
Article 30Transfer of assets
1. A Contracting State shall, in conformity with its laws and regu-15lations permit refugees to transfer assets which they have broughtinto its territory, to another country where they have been admittedfor the purposes of resettlement.
2. A Contracting State shall give sympathetic consideration to theapplication of refugees for permission to transfer assets wherever20they may be and which are necessary for their resettlement inanother country to which they have been admitted.
Article 31Refugees unlawfully in the country of refuge
1. The Contracting States shall not impose penalties, on account of25their illegal entry or presence, on refugees who, coming directly froma territory where their life or freedom was threatened in the senseof Article 1, enter or are present in their territory without authoriz-ation, provided they present themselves without delay to the auth-orities and show good cause for their illegal entry or presence.30
2. The Contracting States shall not apply to the movements of suchrefugees restrictions other than those which are necessary and suchrestrictions shall only be applied until their status in the country isregularised or they obtain admission into another country. The Con-tracting States shall allow such refugees a reasonable period and all35the necessary facilities to obtain admission into another country.
Article 32Expulsion
1. The Contracting States shall not expel a refugee lawfully in theirterritory save on grounds of national security or public order.40
2. The expulsion of such a refugee shall be only in pursuance of adecision reached in accordance with due process of law. Exceptwhere compelling reasons of national security otherwise require, therefugee shall be allowed to submit evidence to clear himself, andto appeal to and be represented for the purpose before competent45authority or a person or persons specially designated by the com-petent authority.
3. The Contracting States shall allow such a refugee a reasonableperiod within which to seek legal admission into another country.
211
The Contracting States reserve the right to apply during that periodsuch internal measures as they may deem necessary.
Article 33
Prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee 5in any manner whatsoever to the frontiers of territories where hislife or freedom would be threatened on account of his race, religion,nationality, membership of a particular social group or politicalopinion.
2. The benefit of the present provision may not, however, be claimed 10by a refugee whom there are reasonable grounds for regarding as adanger to the security of the country in which he is, or who, havingbeen convicted by a final judgment of a particularly serious crime,constitutes a danger to the community of that country.
Article 34 15
Naturalization
The Contracting States shall as far as possible facilitate the assimi-lation and naturalisation of refugees. They shall in particular makeevery effort to expedite naturalisation proceedings and to reduce asfar as possible the charges and costs of such proceedings. 20
CHAPTER VI
EXECUTORY AND TRANSITORY PROVISIONS
Article 35
Co-operation of the national authorities with the United Nations
1. The Contracting States undertake to co-operate with the Office of 25the United Nations High Commissioner for Refugees, or any otheragency of the United Nations which may succeed it, in the exerciseof its functions, and shall in particular facilitate its duty of supervisingthe application of the provisions of this Convention.
2. In order to enable the Office of the High Commissioner or any 30other agency of the United Nations which may succeed it, to makereports to the competent organs of the United Nations, the Con-tracting States undertake to provide them in the appropriate formwith information and statistical data requested concerning:
(a) the condition of refugees, 35
(b) the implementation of this Convention, and
(c) laws, regulations and decrees which are, or may hereafterbe, in force relating to refugees.
Article 36
Information on national legislation 40
The Contracting States shall communicate to the Secretary-General of the United Nations the laws and regulations which theymay adopt to ensure the application of this Convention.
212
Article 37
Relation to previous Conventions
Without prejudice to article 28, paragraph 2, of this Convention,this Convention replaces, as between parties to it, the Arrangementsof 5 July 1922, 31 May 1924, 12 May 1926, 30 June 1928 and 30 July51935, the Conventions of 28 October 1933 and 10 February 1938, theProtocol of 14 September 1939 and the Agreement of 15 October1946.
CHAPTER VII
FINAL CLAUSES10
Article 38
Settlement of disputes
Any dispute between parties to this Convention relating to itsinterpretation or application, which cannot be settled by othermeans, shall be referred to the International Court of Justice at the15request of any one of the parties to the dispute.
Article 39
Signature, ratification and accession
1. This Convention shall be opened for signature at Geneva on 28July 1951 and shall thereafter be deposited with the Secretary-20General of the United Nations. It shall be open for signature at theEuropean Office of the United Nations from 28 July to 31 August1951 and shall be reopened for signature at the Headquarters of theUnited Nations from 17 September 1951 to 31 December 1952.
2. This Convention shall be open for signature on behalf of all States25Members of the United Nations, and also on behalf of any otherState invited to attend the Conference of Plenipotentiaries on theStatus of Refugees and Stateless Persons or to which an invitation tosign will have been addressed by the General Assembly. It shall beratified and the instruments of ratification shall be deposited with30the Secretary-General of the United Nations.
3. This Convention shall be open from 28 July 1951 for accession bythe States referred to in paragraph 2 of this Article. Accession shallbe effected by the deposit of an instrument of accession with theSecretary-General of the United Nations.35
Article 40
Territorial application clause
1. Any State may, at the time of signature, ratification or accession,declare that this Convention shall extend to all or any of the territor-ies for the international relations of which it is responsible. Such a40declaration shall take effect when the Convention enters into forcefor the States concerned.
2. At any time thereafter any such extension shall be made by notifi-cation addressed to the Secretary-General of the United Nations andshall take effect as from the ninetieth day after the day of receipt by45the Secretary-General of the United Nations of this notification, oras from the date of entry into force of the Convention for the Stateconcerned, whichever is the later.
213
3. With respect to those territories to which this Convention is notextended at the time of signature, ratification or accession, each Stateconcerned shall consider the possibility of taking the necessary stepsin order to extend the application of this Convention to such territor-ies, subject where necessary for constitutional reasons, to the consent 5of the governments of such territories.
Article 41
Federal clause
In the case of a Federal or non-unitary State, the following provisionsshall apply: 10
(a) With respect to those articles of this Convention that comewithin the legislative jurisdiction of the federal legislativeauthority, the obligations of the Federal Governmentshall to this extent be the same as those of Parties whichare not Federal States. 15
(b) With respect to those articles of this Convention that comewithin the legislative jurisdiction of constituent States,provinces or cantons which are not, under the consti-tutional system of the Federation, bound to take legislat-ive action, the Federal Government shall bring such 20articles with a favourable recommendation, to the noticeof the appropriate authorities of States, provinces or can-tons at the earliest possible moment.
(c) A Federal State Party to this Convention shall, at therequest of any other Contracting State transmitted 25through the Secretary-General of the United Nations,supply a statement of the law and practice of the Feder-ation and its constituent units in regard to any particularprovision of the Convention showing the extent to whicheffect has been given to that provision by legislative or 30other action.
Article 42
Reservations
1. At the time of signature, ratification or accession, any State maymake reservations to articles of the Convention other than to articles 351, 3, 4, 16 (1), 33, 36 to 46 inclusive.
2. Any State making a reservation in accordance with paragraph 1of this article may at any time withdraw the reservation by a com-munication to that effect addressed to the Secretary-General of theUnited Nations. 40
Article 43
Entry into force
1. This Convention shall come into force on the ninetieth day follow-ing the day of deposit of the sixth instrument of ratification oraccession. 45
2. For each State ratifying or acceding to the Convention after thedeposit of the sixth instrument of ratification or accession, the Con-vention shall enter into force on the ninetieth day following the dayof deposit by such State of its instrument of ratification or accession.
214
Article 44Denunciation
1. Any Contracting State may denounce this Convention at any timeby a notification addressed to the Secretary-General of the UnitedNations.5
2. Such denunciation shall take effect for the Contracting State con-cerned one year from the date upon which it is received by the Sec-retary-General of the United Nations.
3. Any State which has made a declaration or notification underarticle 40 may, at any time thereafter, by a notification to the Sec-10retary-General of the United Nations, declare that the Conventionshall cease to extend to such territory one year after the date ofreceipt of the notification by the Secretary-General.
Article 45Revision15
1. Any Contracting State may request revision of this Convention atany time by a notification addressed to the Secretary-General of theUnited Nations.
2. The General Assembly of the United Nations shall recommendthe steps, if any, to be taken in respect of such request.20
Article 46Notifications by the Secretary-General of the United Nations
The Secretary-General of the United Nations shall inform allMembers of the United Nations and non-member States referred toin article 39:25
(a) of declarations and notifications in accordance withSection B of article 1;
(b) of signatures, ratifications and accessions in accordancewith article 39;
(c) of declarations and notifications in accordance with30article 40;
(d) of reservations and withdrawals in accordance witharticle 42;
(e) of the date on which this Convention will come into forcein accordance with article 43;35
(f) of denunciations and notifications in accordance witharticle 44;
(g) of requests for revision in accordance with article 45.
In faith whereof the undersigned, duly authorised, have signed thisConvention on behalf of their respective Governments,40
Done at Geneva, this twenty-eighth day of July, one thousand ninehundred and fifty-one, in a single copy, of which the English andFrench texts are equally authentic and which shall remain depositedin the archives of the United Nations, and certified true copies of
215
which shall be delivered to all Members of the United Nations andto the non-member States referred to in article 39.
SCHEDULE
Paragraph 1
1. The travel document referred to in article 28 of this Convention 5shall be similar to the specimen annexed hereto.
2. The document shall be made out in at least two languages, one ofwhich shall be in English or French.
Paragraph 2
Subject to the regulations obtaining in the country of issue, chil- 10dren may be included in the travel document of a parent or, in excep-tional circumstances, of another adult refugee.
Paragraph 3
The fees charged for issue of the document shall not exceed thelowest scale of charges for national passports. 15
Paragraph 4
Save in special or exceptional cases, the document shall be madevalid for the largest possible number of countries.
Paragraph 5
The document shall have a validity of either one or two years, at 20the discretion of the issuing authority.
Paragraph 6
1. The renewal or extension of the validity of the document is amatter for the authority which issued it, so long as the holder hasnot established lawful residence in another territory and resides law- 25fully in the territory of the said authority. The issue of a new docu-ment is, under the same conditions, a matter for the authority whichissued the former document.
2. Diplomatic or consular authorities, specially authorized for thepurpose, shall be empowered to extend, for a period not exceeding 30six months, the validity of travel documents issued by theirGovernments.
3. The Contracting States shall give sympathetic consideration torenewing or extending the validity of travel documents or issuingnew documents to refugees no longer lawfully resident in their terri- 35tory who are unable to obtain a travel document from the countryof their lawful residence.
Paragraph 7
The Contracting States shall recognize the validity of the docu-ments issued in accordance with the provisions of article 28 of this 40Convention.
Paragraph 8
The competent authorities of the country to which the refugeedesires to proceed shall, if they are prepared to admit him and if avisa is required, affix a visa on the document of which he is the 45holder.
216
Paragraph 91. The Contracting States undertake to issue transit visas to refugeeswho have obtained visas for a territory of final destination.
2. The issue of such visas may be refused on grounds which wouldjustify refusal of a visa to any alien.5
Paragraph 10The fees for the issue of exit, entry or transit visas shall not exceed
the lowest scale of charges for visas on foreign passports.
Paragraph 11When a refugee has lawfully taken up residence in the territory of10
another Contracting State, the responsibility for the issue of a newdocument, under the terms and conditions of article 28, shall be thatof the competent authority of that territory, to which the refugeeshall be entitled to apply.
Paragraph 1215The authority issuing a new document shall withdraw the old docu-
ment and shall return it to the country of issue, if it is stated in thedocument that it should be so returned; otherwise it shall withdrawand cancel the document.
Paragraph 13201. Each Contracting State undertakes that the holder of a traveldocument issued by it in accordance with article 28 of this Conven-tion shall be readmitted to its territory at any time during the periodof its validity.
2. Subject to the provisions of the preceding sub-paragraph, a Con-25tracting State may require the holder of the document to complywith such formalities as may be prescribed in regard to exit from orreturn to its territory.
3. The Contracting States reserve the right, in exceptional cases, orin cases where the refugee’s stay is authorised for a specific period,30when issuing the document, to limit the period during which the refu-gee may return to a period of not less than three months.
Paragraph 14Subject only to the terms of paragraph 13, the provisions of this
Schedule in no way affect the laws and regulations governing the35conditions of admission to, transit through, residence and establish-ment in, and departure from, the territories of the Contracting States.
Paragraph 15Neither the issue of the document nor the entries made thereon
determine or affect the status of the holder, particularly as regards40nationality.
Paragraph 16The issue of the document does not in any way entitle the holder
to the protection of the diplomatic or consular authorities of thecountry of issue, and does not confer on these authorities a right45of protection.
217
ANNEXSpecimen Travel Document
The document will be in booklet form (approximately 15 x 10centimetres).
It is recommended that it be so printed that any erasure or alter- 5ation by chemical or other means can be readily detected, and thatthe words “Convention of 28 July 1951’ be printed in continuousrepetition on each page, in the language of the issuing country.
(Cover of booklet)TRAVEL DOCUMENT 10
(Convention of 28 July 1951)
No.
(1)TRAVEL DOCUMENT
(Convention of 28 July 1951) 15
This document expires onunless its validity is extended or renewed.
NameForename(s)Accompanied by child (children)
1. This document is issued solely with a view to providing the holder with a travel 20document which can serve in lieu of a national passport. It is without prejudice toand in no way affects the holder’s nationality.
2. The holder is authorised to return to
[state here the country whose authorities are issuing the document]
on or before 25unless some laterdate is hereafter specified.
[The period during which the holder is allowed to return must not be less thanthree months]
3. Should the holder take up residence in a country other than that which issuedthe present document, he must, if he wishes to travel again, apply to the 30competent authorities of his country of residence for a new document. [The oldtravel document shall be withdrawn by the authority issuing the new documentand returned to the authority which issued it.]
(This document contains pages, exclusive of cover).
(2) 35
Place and date of birthOccupationPresent residence
*Maiden name and forename(s) of wife
*Name and forename(s) of husband 40
Description
HeightHairColour of eyesNose 45Shape of faceComplexionSpecial peculiarities
Children accompanying holder
Name 50Forename(s) Place Sexand dateof birth
(This document contains pages, exclusive of cover).
(3)
Photograph of holder and stamp of issuing authority 55Finger-prints of holder (if required)
Signature of holder
(This document contains pages, exclusive of cover).
218
(4)
1. This document is valid for the following countries:
2. Document or documents on the basis of which the present document is issued:
Issued at
Date5
Signature and stamp of authorityissuing the document:
Fee paid
(This document contains pages, exclusive of cover).
(5)10
Extension or renewal of validity
Fee paid: From
To
Done at Date Signature and stamp of authority extendingor renewing the validity of the document:
Extension or renewal of validity15
Fee paid: From
To
Done at Date
Signature and stamp of authorityextending or renewing the validity20of the document:
(This document contains pages, exclusive of cover).
(6)
Extension or renewal of validity
Fee paid:25 From
To
Done at Date
Signature and stamp of authority extending or renewing the validity of thedocument:
Extension or renewal of validity
Fee paid:30 From
To
Done at Date
Signature and stamp of authority extending or renewing the validity of thedocument:
Extension or renewal of validity
Fee paid:35 From
To
Done at Date
Signature and stamp of authority extending or renewing the validity of thedocument:
(This document contains pages, exclusive of cover).
(7-32)40
Visas
The name of the holder of the document must be repeated in each visa.
(This document contains pages, exclusive of cover).
219
SCHEDULE 2
PROTOCOL RELATING TO THE STATUS OF REFUGEESDONE AT NEW YORK ON 31 JANUARY 1967
The States Parties to the present Protocol,
Considering that the Convention relating to the Status of Refugees 5done at Geneva on 28 July 1951 (hereinafter referred to as theConvention) covers only those persons who have become refugeesas a result of events occurring before 1 January 1951,
Considering that new refugee situations have arisen since the Con-vention was adopted and that the refugees concerned may therefore 10not fall within the scope of the Convention,
Considering that it is desirable that equal status should be enjoyedby all refugees covered by the definition in the Convention irrespec-tive of the dateline 1 January 1951,
Have agreed as follows: 15
Article IGeneral provision
1. The States Parties to the present Protocol undertake to applyarticles 2 to 34 inclusive of the Convention to refugees as herein-after defined. 20
2. For the purpose of the present Protocol, the term “refugee” shall,except as regards the application of paragraph 3 of this article, meanany person within the definition of article 1 of the Convention as ifthe words “As a result of events occurring before 1 January 1951and...” and the words “... as a result of such events”, in article 1 A 25(2) were omitted.
3. The present Protocol shall be applied by the States Parties heretowithout any geographic limitation, save that existing declarationsmade by States already Parties to the Convention in accordance witharticle 1 B (1) (a) of the Convention, shall, unless extended under 30article 1 B (2) thereof, apply also under the present Protocol.
Article IICo-operation of the national authorities with the United Nations
1. The States Parties to the present Protocol undertake to co-operatewith the Office of the United Nations High Commissioner for Refu- 35gees, or any other agency of the United Nations which may succeedit, in the exercise of its functions, and shall in particular facilitate itsduty of supervising the application of the provisions of the presentProtocol.
2. In order to enable the Office of the High Commissioner, or any 40other agency of the United Nations which may succeed it to makereports to the competent organs of the United Nations, the StatesParties to the present Protocol undertake to provide them with theinformation and statistical data requested, in the appropriate form,concerning: 45
(a) The condition of refugees;
(b) The implementation of the present Protocol;
220
(c) Laws, regulations and decrees which are, or may hereafterbe, in force relating to refugees.
Article IIIInformation on national legislation
The States Parties to the present Protocol shall communicate to5the Secretary-General of the United Nations the laws and regulationswhich they may adopt to ensure the application of the presentProtocol.
Article IV
Settlement of disputes10
Any dispute between States Parties to the present Protocol whichrelates to its interpretation or application and which cannot besettled by other means shall be referred to the International Courtof Justice at the request of any one of the parties to the dispute.
Article V15
Accession
The present Protocol shall be open for accession on behalf of allStates Parties to the Convention and of any other State Member ofthe United Nations or member of any of the specialised agencies orto which an invitation to accede may have been addressed by the20General Assembly of the United Nations. Accession shall be effectedby the deposit of an instrument of accession with the Secretary-General of the United Nations.
Article VI
Federal clause25
In the case of a Federal or non-unitary State, the following pro-visions shall apply:
(a) With respect to those articles of the Convention to beapplied in accordance with article I, paragraph 1, of thepresent Protocol that come within the legislative juris-30diction of the federal legislative authority, the obligationsof the Federal Government shall to this extent be thesame as those of States Parties which are not FederalStates;
(b) With respect to those articles of the Convention to be35applied in accordance with article I, paragraph 1, of thepresent Protocol that come within the legislative juris-diction of constituent States, provinces or cantons whichare not, under the constitutional system of the Feder-ation, bound to take legislative action, the Federal40Government shall bring such articles with a favourablerecommendation to the notice of the appropriate auth-orities of States, provinces or cantons at the earliest pos-sible moment;
(c) A Federal State Party to the present Protocol shall, at45the request of any other State Party hereto transmittedthrough the Secretary-General of the United Nations,supply a statement of the law and practice of the Feder-ation and its constituent units in regard to any particularprovision of the Convention to be applied in accordance50
221
with article I, paragraph 1, of the present Protocol, show-ing the extent to which effect has been given to that pro-vision by legislative or other action.
Article VIIReservations and Declarations 5
1. At the time of accession, any State may make reservations inrespect of article IV of the present Protocol and in respect of theapplication in accordance with article I of the present Protocol of anyprovisions of the Convention other than those contained in articles 1,3, 4, 16 (1) and 33 thereof, provided that in the case of a State Party 10to the Convention reservations made under this article shall notextend to refugees in respect of whom the Convention applies.
2. Reservations made by States Parties to the Convention in accord-ance with article 42 thereof shall, unless withdrawn, be applicable inrelation to their obligations under the present Protocol. 15
3. Any State making a reservation in accordance with paragraph 1of this article may at any time withdraw such reservation by a com-munication to that effect addressed to the Secretary-General of theUnited Nations.
4. Declarations made under article 40, paragraphs 1 and 2, of the 20Convention by a State Party thereto which accedes to the presentProtocol shall be deemed to apply in respect of the present Protocol,unless upon accession a notification to the contrary is addressed bythe State Party concerned to the Secretary-General of the UnitedNations. The provisions of article 40, paragraphs 2 and 3, and of 25article 44, paragraph 3, of the Convention shall be deemed to applymutatis mutandis to the present Protocol.
Article VIIIEntry into force
1. The present Protocol shall come into force on the day of deposit 30of the sixth instrument of accession.
2. For each State acceding to the Protocol after the deposit of thesixth instrument of accession, the Protocol shall come into force onthe date of deposit by such State of its instrument of accession.
Article IX 35Denunciation
1. Any State Party hereto may denounce this Protocol at any timeby a notification addressed to the Secretary-General of the UnitedNations.
2. Such denunciation shall take effect for the State Party concerned 40one year from the date on which it is received by the Secretary-General of the United Nations.
Article XNotifications by the Secretary-General of the United Nations
The Secretary-General of the United Nations shall inform the 45States referred to in article V above of the date of entry into force,accessions, reservations and withdrawals of reservations to anddenunciations of the present Protocol, and of declarations and notifi-cations relating hereto.
222
Article XIDeposit in the Archives of the Secretariat of the United Nations
A copy of the present Protocol, of which the Chinese, English,French, Russian and Spanish texts are equally authentic, signed bythe President of the General Assembly and by the Secretary-General5of the United Nations, shall be deposited in the archives of the Sec-retariat of the United Nations. The Secretary-General will transmitcertified copies thereof to all States Members of the United Nationsand to the other States referred to in article V above,
223
Section 147. SCHEDULE 3
Amendments to Enactments
Act Provision Amendment
1. Irish Section 2 (as Delete the following definitions:Nationality and amended by
“ “Act of 1996” means the Refugee 5Citizenship Act section 2 of theAct 1996;”,1956 Irish Nationality
and Citizenship“ “Act of 2003” means the 10Act 2004)Immigration Act 2003;”, and
“ “Act of 2004” means theImmigration Act 2004;” and
insert “ “Act of 2010” means the 15Immigration, Residence andProtection Act 2010;”.
2. Irish Section 6A(2) (as In paragraphs (d) and (e), substituteNationality and inserted by “granted or deemed to have beenCitizenship Act 20section 4 of the granted under the Act of 2010” for1956 Irish Nationality “granted under section 4 of the Act
and Citizenship of 2004” wherever it appears.Act 2004)
3. Irish Section 6B(4) (as Substitute the following forNationality and 25inserted by subsection (4):Citizenship Act section 4 of the
“(4) A period of residence in the1956 Irish NationalityState shall not be reckonable for theand Citizenship 30purposes of calculating a period ofAct 2004)residence under section 6A if it isnot reckonable for the purposes ofsection 46(4)(b) of the Immigration, 35Residence and Protection Act 2010.”.
4. Irish Section 16A (as (a) Substitute the following forNationality and substituted by subsection (1):Citizenship Act section 11 of the
“(1) A period of residence in 401956 Irish Nationalitythe State shall not be reckonedand Citizenshipwhen calculating a period ofAct 2004) 45residence for the purpose orgranting a certificate ofnaturalisation if it is notreckonable for the purposes ofsection 46(4)(b) of the 50Immigration, Residence andProtection Act 2010.”.
(b) Delete section 16A(2).
5. Irish Section 17 (as Substitute the following forNationality and 55amended by paragraph (b):Citizenship Act section 12 of the
“(b) be accompanied by—1956 Irish Nationalityand Citizenship
(i) such fee (if any) as may be 60Act 2004)prescribed, and
(ii) such evidence (includingstatutory declarations) tovouch the application as 65the Minister mayrequire.”.
6. Irish Section 18(2) Substitute the following forNationality and subsection (2):Citizenship Act 70
“(2) A certificate of naturalisation1956be—
(a) in the prescribed form, and
224
Act Provision Amendment
(b) issued on payment of suchfee (if any) as may be pre-scribed, and
notice of issue shall be published inthe prescribed manner in Iris5Oifigiúil.”.
7. Prisoners of Section 6 Substitute the following for subsec-War and tion (1):Enemy Aliens
“(1) The Minister for Justice and10 Act 1956Law Reform may, where he or she issatisfied that it is absolutely necessaryfor the security of the State to do so,require an enemy alien to—15
(a) reside or remain in a speci-fied district or place inthe State,
(b) report at specified intervalsto a specified immigration20area office (within themeaning of section 2 ofthe Immigration, Resi-dence and Protection Act2010) or Garda Síochána25station, or
(c) surrender any travel docu-ment that he or sheholds.”.
8.30 Criminal Law Section 8(1) Substitute the following forAct 1976 paragraph (l) (inserted by section 6
of the Illegal Immigrants(Trafficking) Act 2000:
“ (l) an offence under section 149of the Immigration, Residence35and Protection Act 2010.”.
9. Diplomatic and Section 3(1) (as In paragraph (a), delete “,visas”.Consular substituted byOfficers section 28 of the(Provision of40 Passports ActServices) Act 2008)1993
10. Extradition First Schedule Insert the following after paragraph(Amendment) 6C (as inserted by section 58 of theAct 199445 Criminal Justice (Terrorist Offences)
Act 2005):
“6D. An offence under section149 of the Immigration, Residenceand Protection Act 2010.”.
11.50 Bail Act 1997 Schedule Insert the following after paragraph27A (inserted by section 8 of theIllegal Immigrants (Trafficking) Act2000):
“27B. Any offence under section149 of the Immigration, Residence55and Protection Act 2010.”.
12. Employment Section 12 (as In the opening words of subsectionEquality Act amended by (7), substitute “Without prejudice to1998 section 39 of the section 109 of the Immigration,
Equal Status Act60 Residence and Protection Act 2010”2000) for “Without prejudice to section 3
of the Refugee Act 1996”.
225
Act Provision Amendment
13. Equal Status Section 7(3) In paragraph (d), substitute “withoutAct 2000 prejudice to section 109 of the
Immigration, Residence andProtection Act 2010,” for “withoutprejudice to section 3 of the Refugee 5Act 1996,”.
14. Equal Status Section 14 (as (a) Delete paragraph (aa) ofAct 2000 amended by subsection (1) and substitute
section 52 of the the following:Equality Act 10
“(aa) on the basis of2004)nationality—
(i) any action taken by apublic authority in 15relation to a foreignnational—
(I) who, when theaction was taken,was either outside 20the State or, forthe purposes ofthe Immigration,Residence andProtection Act 252010, unlawfullypresent in it, or
(II) in accordance withany provision orcondition made by 30or under anyenactment andarising from his orher entry into orresidence in the 35State,
or
(ii) any action taken by theMinister in relation toa foreign national 40where the action arisesfrom an action referredto in subparagraph(i),”;
(b) In subsection (2), substitute “ 45‘foreign national’ has themeaning given to it by theImmigration, Residence andProtection Act 2010 andincludes a category of foreign 50national;” for “ ‘non-nationalhas the meaning given to it bythe Immigration Act 1999 andincludes a category of non-nationals;”; 55
(c) In subsection (2), in paragraph(b) of the definition of“public authority”, substitute“an immigration officer withinthe meaning of section 2 of 60the Immigration, Residenceand Protection Act 2010,” for“an immigration officerappointed or deemed to havebeen appointed under section 653 of the Immigration Act2004,”.
226
Act Provision Amendment
15. Criminal Section 24 Substitute “(o) permit issued orJustice (Theft deemed to have been issued underand Fraud section 29, 44, 47, 75 or 110 of theOffences) Act Immigration, Residence and20015 Protection Act 2010,” for “(o)
registration certificate issued underArticle 11(1)(e)(i) of the AliensOrder, 1946 (S.I. No. 395 of 1946) orthe Immigration Act 2000,”.
16.10 Employment Section 1(1) (as Substitute “ “foreign national” hasPermits Act amended by the meaning assigned to it by the2003 section 39 of the Immigration, Residence and
Employment Protection Act 2010;” for “ ‘foreignPermits Act 2006) national’ means a non-national
(within the meaning of the15Immigration Act 1999);”.
17. Employment Section 2(10) (as (a) Substitute the following forPermits Act substituted by paragraph (a):2003 section 3 of the
“(a) who has been granted, or20 Employmentdeemed to have beenPermits Act 2006)granted, a protectiondeclaration under the25Immigration, Residenceand Protection Act 2010,which remains in force,”;
(b) Substitute the following forparagraph (b):30
“(b) who has been granted, ordeemed to have beengranted, a residencepermission under section113, 114 or 116 of the35Immigration, Residenceand Protection Act 2010,which remains valid,”.
18. Taxi Section 36(1) Substitute the following forRegulation Act40 paragraph (h):2003
“(h) an offence under section 149of the Immigration, Residenceand Protection Act 2010.”.
19.45 Social Welfare Section 198(4) In paragraph (a), substitute theConsolidation following for subparagraph (ii):Act 2005
“(ii) the person has made, or isdeemed to have made, aprotection application under50section 81 of the Immigration,Residence and Protection Act2010, other than a personwho—
(I) has been granted, or is55deemed to have beengranted, a protectiondeclaration under section109 of that Act, or
(II) has been granted, or is60deemed to have beengranted, a residencepermission under section113, 114 or 116 of thatAct,65
or
(III) has been granted aresidence permissionunder section 89 of thatAct,”.70
227
Act Provision Amendment
20. Social Welfare Section 246(6) (as (a) Substitute the following forConsolidation inserted by paragraphs (c) to (g):Act 2005 section 15 of the
“(c) a person who has beenSocial Welfare 5granted, or is deemed toand Pensionshave been granted, a(No. 2) Act 2009)protection declaration 10under section 109 of theAct of 2010, whichremains in force;
(d) a person who has beengranted, or is deemed to 15have been granted, aresidence permissionunder section 113, 114 or116 of the Act of 2010,which remains valid; 20
(e) a person who has beengranted a residencepermission under section89 of the Act of 2010,which remains valid;”. 25
(b) Substitute the following forparagraph (h):
“(f) a person who is the holderof a permission to enter,be present or to reside in 30the State granted, ordeemed to have beengranted under Part 4 or 5of the Act of 2010.”.
21. 35Social Welfare Section 246(7) (as (a) Substitute the following forConsolidation inserted by paragraphs (a) to (e):Act 2005 section 15 of the
“(a) a person to whom sectionSocial Welfare163(1) of the 40and PensionsImmigration, Residence(No. 2) Act 2009)and Protection Act 2010applies; 45
(b) a person who has made, oris deemed to have made,a protection applicationunder section 81 of theAct of 2010 in respect of 50which a determinationunder section 88 of thatAct has not been made;
(c) a person to whom anyprovision of section 160 55of the Act of 2010applies,
(d) a person whose presencein the State is unlawfulunder the Act of 2010;”. 60
(b) Substitute the following forparagraph (f):
“(e) a person who has beenrefused a protectiondeclaration under the 65Act of 2010.”.
228
Act Provision Amendment
22. Social Welfare Section 246(8) (as Substitute the following forConsolidation inserted by subsection (8):Act 2005 section 15 of the
“(8) For the purpose of this Act,Social Welfare5where a person—and Pensions
(No. 2) Act 2009)(a) is granted, or is deemed to have
been granted, a protection10declaration under section 109of the Act of 2010,
(b) is granted, or is deemed tohave been granted, aresidence permission under15section 113, 114 or 116 of theAct of 2010,
(c) is granted a residencepermission under section 89of the Act of 2010, or20
(d) is granted, or deemed to havebeen granted, a permission toenter, be present or to residein the State under Part 4 or 5of the Act of 2010,25
he or she shall not be regarded asbeing habitually resident in the Statefor any period before the date onwhich the declaration referred to inparagraph (a) was given or the per-30mission referred to in paragraph (b),(c) or (d) was granted.”.
23. Social Welfare Section 246(10) Insert the following after theConsolidation (as inserted by definition of “Act of 1996”:Act 200535 section 15 of the
“ “Act of 2010” means theSocial WelfareImmigration, Residence andand PensionsProtection Act 2010;”.40 (No. 2) Act 2009)
24. Employment Section 21 Substitute the following forPermits Act subsections (1) and (2):2006
“(1) An employment permit shall,45subject to subsection (2), cease to bein force where—
(a) an order under section 132 ofthe Immigration, Residenceand Protection Act 2010 is50made in relation to theforeign national in respect ofwhom the permit was granted,
(b) subsections (3), (4), (5) or (6)of section 160 of that Act55applies in relation to theforeign national, or
(c) the presence in the State of theforeign national is otherwiseunlawful under that Act.60
(2) If the circumstances referredto in subsection (1) cease to exist,the employment permit concernedmay, on that cesser, be revived inforce.”.65
25. Employment Section 34(b) Substitute “Immigration, ResidencePermits Act and Protection Act 2010” for2006 “Immigration Act 2004”.
229
Act Provision Amendment
26. Criminal Section 18(1) Substitute “within the meaning ofJustice Act section 2 of the Immigration,2006 Residence and Protection Act 2010”
for “who is deemed to have beenappointed as such an officer under 5section 3 of the Immigration Act2004”.
27. Aviation Section 12 (a) In subsection (1), substitute(Preclearance) “enactments referred to inAct 2009 10subsection (3)” for “Aliens
Act 1935 and the ImmigrationAct 2004”;
(b) In subsection (2), substitute“enactments referred to insubsection (3)” for “Aliens 15Act 1935 and the ImmigrationAct 2004”;
Insert new subsection (3):
“(3) The enactments towhich this subsection refers 20are—
(a) the Immigration, Residence andProtection Act 2010,
(b) the European Communities(Aliens) Regulations 1977 25(S.I. No. 393 of 1977),
(c) the European Communities(Right of Residence for Non-Economically Active Persons)Regulations 1997 (S.I. No. 57 30of 1997), and
(d) the European Communities(Free Movement of Persons)(No. 2) Regulations 2006 (S.I.No. 656 of 2006).”. 35
230
————————
AN BILLE UM INIMIRCE, CÓNAÍ AGUS COSAINT 2010IMMIGRATION, RESIDENCE AND PROTECTION BILL 2010
————————
EXPLANATORY MEMORANDUM
————————
General
1. This Bill sets out a legislative framework for the managementof inward migration to Ireland. It lays down a number ofimportant principles governing the presence in the State offoreign nationals, including the obligation on a foreign nationalwho is unlawfully in the State to leave. It sets out statutoryprocesses for applying for a visa, for entry to the State, forresidence in the State and for being required, when necessary,to leave.
2. The responsibilities of the State, as executive functions vestedin the Government, to operate immigration controls in theinterest of the common good have been recently restated by theSupreme Court (Denham J) in Bode (A Minor) -v- Minister forJustice, Equality and Law Reform & Ors [2007] IESC 62 (20December 2007) as follows:
‘‘In every State, of whatever model, the State has the powerto control the entry, the residency, and the exit, of foreignnationals. This power is an aspect of the executive power toprotect the integrity of the State. It has long been recognisedthat in Ireland this executive power is exercised by theMinister on behalf of the State. This was described byCostello J. in Pok Sun Shun v. Ireland [1986] I.L.R.M. 593at 599 as:
‘‘In relation to the permission to remain in the State, itseems to me that the State, through its Ministry forJustice, must have very wide powers in the interest of thecommon good to control aliens, their entry into the State,their departure and their activities within the State.’’
The special role of the State in the control of foreignnationals was described by Gannon J. in Osheku v. Ireland[1986] I.R. 733 at 746. He stated at p.746:—
‘‘That it is in the interests of the common good of a Statethat it should have control of the entry of aliens, theirdeparture and their activities and duration of stay withinthe State is and has been recognised universally and from
1
Click here for Bill
2
earliest times. There are fundamental rights of the Stateitself as well as fundamental rights of the individualcitizen, and the protection of the former may involverestrictions in circumstances of necessity on the latter.The integrity of the State constituted as it is for thecollective body of its citizens within the national territorymust be defended and vindicated by the organs of theState and by the citizens so that there may be true socialorder within the territory and concord maintained withother nations in accordance with the objectives declaredin the preamble to the Constitution.’’
I would affirm and adopt this description. While steps takenby a State are often restrictive of the movement of foreignnationals, the State may also exercise its powers so as to takeactions in a particular situation where it has been determinedthat the common good is served by giving benefits ofresidency to a category of foreign nationals — as a gift, ineffect.’’
3. This restatement continues a line of Supreme Court judgments,including those in Article 26 Referral of the Illegal Immigrants(Trafficking) Bill 1999 ([2000] 2 IR 360), FP v. Minister forJustice ([2002] 1 IR 164) and AO and DL v. Minister for Justice,Equality and Law Reform ([2003] 1 IR 1).
4. The executive power and responsibility of the Government tomake immigration policies as they consider suitable to theconditions of the day is at present supplemented by a variety ofstatutory provisions designed to facilitate the implementationof those policies. Those statutory provisions include the AliensAct 1935, the Immigration Act 1999, the Immigration Act 2003and the Immigration Act 2004, all of which this Bill will repealand replace.
5. Another important principle underlying the provisions of theBill is the clarifying provision of section 6 regarding thelawfulness and unlawfulness of presence in the State of foreignnationals. In particular, the element of that provision whichimposes an immediate and continuing obligation on a foreignnational who is unlawfully present in the State to leave the Stateis a fundamental principle that dictates the content of manysubsequent provisions of the Bill.
6. The Bill sets out statutory procedures to be followed in dealingwith applications for visas (new to statute), entry into the State(based on present law), residence permission while in the State(largely new) and removal from the State (based to some extenton present law, but with some significant innovations).
7. The Bill proposes to integrate the processes for dealing withapplications for protection in the State (at present covered bythe Refugee Act 1996 and the European Communities(Eligibility for Protection) Regulations 2006 (S.I. No. 518 of2006)) and all other aspects of the desire of a protectionapplicant to remain in the State (at present dealt with underthe Immigration Act 1999) into a unified process at the end ofwhich each applicant has a complete answer to the questionwhether he or she will be permitted to remain in the State. Inconsequence, the Bill repeals the Refugee Act and theRegulations, and subsumes into the Minister’s functions thoseat present carried out by the Refugee ApplicationsCommissioner in relation to asylum applications. The Bill also
transposes into national law Council Directive 2005/85/EC1 of 1December 2005 on minimum standards on procedures inMember States for granting and withdrawing refugee status(‘‘Procedures Directive’’).
8. Of special note is the provision in statute for foreign nationalsto obtain long-term residence permission, giving to the holdersrights in the State similar in most respects to those of Irishcitizens.
9. The Bill also makes some general provisions in relation to thepowers of immigration officers, exchange of information,provision by carriers of advance passenger information,marriages of convenience, special provisions on judicial reviewbased on the present provisions of section 5 of the IllegalImmigrants (Trafficking) Act 2000 and requirements in relationto the departure of foreign nationals from the State.
10. The Bill, at Part 9, contains provisions dealing with smugglingof persons which are intended to implement the followinginternational instruments concerning migrant smuggling:
• EU council directive 2002/90/EC2 defining the facilitation ofunauthorised entry, transit and residence;
• EU Framework Decision 2002/946/JHA3 on thestrengthening of the penal framework to prevent thefacilitation of unauthorised entry, transit and residence;
• Protocol against the smuggling of migrants by land, sea andair supplementing the UN Convention against TransnationalOrganised Crime.
PART 1
PRELIMINARY
11. Part 1 (sections 1 to 5) of the Bill deals with preliminary matterssuch as citation and commencement, interpretation, orders andregulations, expenses and repeals and revocation of variousenactments.
12. Sections 1, 3, 4 and 5 are standard provisions dealing withcitation and commencement of the Act, orders and regulations,expenses and repeals and revocation of various enactments.
13. Section 2 sets out the interpretation of the primary termsreferred to throughout the Bill.
PART 2
GENERAL
14. Part 2 (sections 6 to 11) of the Bill sets out general provisionsdealing with lawful and unlawful presence in the State,marriage, the restricted entitlement to State services of foreignnationals unlawfully present in the State and delegation offunctions of the Minister.
1OJ L326 of 13 December 20052OJ L 328 of 5 December 20023OJ L 328 of 5 December 2002
3
4
15. Section 6 provides that the presence in, or entry into, the Stateof a foreign national is lawful only if it is in accordance with apermission given or deemed to be given to him or her, inaccordance with the Act. This section is based on section 5 ofthe Immigration Act 2004. A foreign national who enters theState unlawfully or whose presence in the State is unlawfulcommits an offence. Such a person is also, by subsection (4),under an obligation to leave the State, and may be removed, ifnecessary, following arrest and detention for that purpose. Aforeign national who commits an offence under this section isliable to the penalty provisions set out in section 134(2) and (3).By subsection (11), based on section 2(3) of the ImmigrationAct 2004, it is for a foreign national to establish, in anyproceedings (including the operation of the provisions of thisAct by the Minister or by immigration officials), his or herstatus in the State.
16. Section 7 provides that a marriage does not, of itself, conferany entitlement on a foreign national to be granted a visa or apermission to enter or remain in the State.
17. Section 8 has the same effect as section 2 of the ImmigrationAct 2004. Subsection (1) sets out the classes of persons who aredeemed to have permission to be present in the State.Subsection (2) enables the Minister to specify by order classesof persons who are to be regarded as having permission to bepresent in the State.
18. By section 9 a foreign national whose presence in the State isunlawful will, as a general rule, not be entitled to enter intoemployment or engage for gain in any business, trade orprofession (subsection (1)). Subsection (2) lists those servicesand benefits which a foreign national unlawfully present in theState will not be entitled to apply for or receive. Subsection (3)qualifies the prohibition in subsection (2) to ensure that certainessential services are provided. In addition, subsection (3)(f)enables the Minister, having consulted with the relevant otherMinister (subsection (4)), to prescribe the extent to which anyadditional emergency provision is to be made available.However, by subsection (5), any benefit or service provided toan unlawfully present foreign national will not, of itself, renderhis or her presence lawful. Subsection (6) clarifies that a foreignnational does not, by implication, have a right to any benefit orservice not listed in or under subsection (2). By subsection(6)(b), the onus of proving that he or she is lawfully present inthe State rests on a foreign national who has applied for any ofthe benefits or services listed in the subsection.
19. Section 10 is a saver for any EU-related obligations of the Stateaffecting immigration matters. It is based on section 2(2) of theImmigration Act 2004.
20. Section 11 makes provision for the delegation of certainMinisterial functions. Subsection (2) makes provision forconsultation between Ministers, and consent to be obtained,before delegation to agents, officers or employees of anotherMinister. Subsection (3) provides that any delegation is subjectto the general supervision and control of the Minister for Justiceand Law Reform and to such limitations as may be specified inthe delegation. Subsection (4) limits the power of delegationand subsection (5) is intended to acknowledge and preserve the‘‘Carltona’’ principle whereby functions of the Minister can beperformed on his or her behalf by his or her officers.
PART 3
VISAS
21. Part 3 (sections 12 to 23) of the Bill provides a statutoryframework for grant and revocation of visas.
22. Section 12 is an interpretation section.
23. Section 13 sets out the obligation to possess a visa. By subsection(1) a foreign national seeking to enter the State must, unless heor she is a visa-exempt foreign national, be in possession of avalid visa in respect of that entry. Failure to do so is an offence(subsection (3)). Subsection (2) provides clarity in relation tothe validity of a visa.
24. Section 14 sets out the powers of the Minister in relation tovisas. The Minister can prescribe the information to be includedin a visa (subsection (1)) and different categories of visa(subsection (2)). By subsection (3), the Minister can also attachdifferent conditions to different categories of visas or toparticular visas.
25. Section 15 contains provisions whereby the Minister maydesignate a foreign national as exempted from the need to havea visa. A foreign national may be a visa-exempt foreign nationalin some circumstances and, in other circumstances, be requiredto possess a visa (subsection (3)).
26. Section 16 sets out the application process for a visa. TheMinister may receive and consider applications for a visa(subsection (1)) and a visa application must be in the prescribedform and accompanied by the prescribed fee (if any) (subsection(2)). Subsection (3) makes provision for the prescription of theform in which a visa application is to be made, the manner inwhich biometric information is to be provided and thecircumstances in which a bond or deposit may be required.
27. Section 17 deals with the determination by the Minister of visaapplications. It is for the visa applicant to establish to thesatisfaction of the Minister that he or she should be granted avisa (subsection (2)). The Minister may make appropriateinquiries before determining an application and must take intoaccount all information that he or she considers relevant(subsections (3) and (4)). Subsection (5) enables the Minister torefuse a visa application and sets out examples of the groundson which the Minister may consider a refusal justified.
28 Section 18 deals with the grant of a visa. By subsection (1), theMinister must grant the visa, arrange for its issue and notifythe applicant concerned; the possibility of notification via theinternet (paragraph (c)) is envisaged. Subsection (2) providesthat the visa granted may be of a particular category and maybe subject to conditions.
29. Section 19 deals with refusal of a visa application. Where theMinister refuses a visa application, he or she must notify theapplicant of the refusal and the reason for the refusal(subsection (1)); the possibility of notification via the internet(subsection (3)) is envisaged. The Minister must also informthe applicant whether a review is available and, if so, how itmay be sought (subsection (2)).
5
6
30. Section 20 deals with revocation of a visa. Subsection (1) enablesthe Minister to revoke a visa if he or she considers its revocationto be justified and contains examples of reasons why theMinister may consider a revocation justified. The Minister musttake all reasonable steps to inform the holder of a visa as soonas possible of the revocation and the reasons for the revocation,including notification via the internet (subsection (2)).
31. Section 21 sets out the entitlement (subsection (1)) and theprocess (subsection (2)) for seeking a review of a refusal togrant a visa under section 17 or a revocation of a visa undersection 20. A person who sought or obtained a visa on the basisof false or misleading information which was intentionallyfurnished to the Minister is not entitled to seek a review of thedecision to refuse or, as the case may be, revoke a visa(subsection (2)). Subsection (3) sets out the application processfor a review. By subsection (4) a review officer will deal withthe review. That officer will not be the person who made theinitial decision and will be of an equivalent or higher grade thanthat person. By subsections (5) and (6) the review officer canmake enquiries and must, in determining the review, haveregard to all relevant information whether or not provided bythe applicant.
32. Section 22 empowers a review officer to confirm or set aside avisa refusal or revocation. A confirmation can be on the samegrounds or other grounds as the initial refusal or revocation(subsection (2)). Where the refusal or revocation is upheld, thereview officer must inform the applicant and the possibility ofnotification via the internet is envisaged (subsection (3)). Bysubsection (4), where a refusal or revocation is set aside, a visawill be issued.
33. Section 23 contains provisions whereby the Minister maydesignate a foreign national as being subject to the need to havea transit visa in order to be permitted to arrive at a port in theState for the purpose of passing through the port in order totravel to another state (subsections (1) and (2)). It is an offencefor a transit-visa-required foreign national to arrive at a port inthe State without being in possession of a transit visa(subsections (4) and (5)). A foreign national may be a transit-visa-required foreign national in some circumstances and, inother circumstances, not be required to possess a transit visa(subsection (3)). The provisions applicable to visas at sections13, 14 and 16 to 22 also apply to a transit visa.
PART 4
ENTRY INTO THE STATE
34. Part 4 (sections 24 to 34) of the Bill deals with entry into theState and sets out the responsibilities of foreign nationals andcarriers in this regard.
35. Section 24 is based, to a large extent, on section 6 of theImmigration Act 2004 and provides that a foreign national may,unless the Minister has consented otherwise, only enter theState via an approved port (subsection (1) — paragraph (a) and(b) lists certain exemptions). Failure to comply with thisrequirement constitutes an offence (subsection (5)) and theperson is to be regarded as having been refused permission to
enter the State (subsection (6)). Subsections (2) to (4) set outthe process for obtaining consent.
36. Section 25 contains provisions dealing with approved ports. Anapproved port is a place that is designated by the Minister asan approved port (subsections (1) and (2)) and such designationmay be subject to certain conditions. The Minister must consultthe person having management and control of the port beforearriving at conditions of approval (subsection (3)). Bysubsection (4), it is an offence to represent an unapproved portas an approved port, to facilitate the unlawful entry of a personinto the State via that port or to fail to report such unlawfulentry to an immigration officer.
37. Section 26 is based on section 11 of the Immigration Act 2004and sets out the requirement for every person (other than anIrish citizen or a British citizen travelling within the CommonTravel Area) to be in possession of a valid passport or otherequivalent document establishing his or her identity andnationality when landing in the State. Subsection (2) obliges aperson landing in the State to provide an immigration officerwith any necessary information and to comply with anyinstructions given by an immigration officer. It also clarifies theposition in relation to the furnishing of biometric informationby Irish and EU citizens — such information can only berequired for the purposes of establishing that the traveldocument presented by the citizen relates to him or her. Failureto comply with the section is an offence (subsection (3)).
38. Section 27, which is based on section 4 of the Immigration Act2004, sets out the obligations for certain foreign nationals topresent themselves to an immigration officer and to apply forpermission to enter the State (subsections (1) and (3)); failureto do so is an offence (subsection (8)). The section also specifiesthe powers that may be exercised by an immigration officer indetermining whether a person should be given permission toenter and be present in the State and the sort of informationthat would be pertinent in making that decision (subsections(3), (4) and (5)). It further sets out what the immigration officershould do where the foreign national indicates a protectionneed (subsections (6) and (7)).
39. Section 28 deals with the procedures to be followed where theforeign national is under 18 years of age, and the interactionswith the Health Service Executive that are to take place in thatevent. This provision is based on section 8(5) of the RefugeeAct 1996.
40. Section 29 deals with permission to enter the State. Subsections(1) and (2) make provision for an immigration officer to, onbehalf of the Minister, grant or refuse to grant permission to aforeign national to enter the State. By subsection (8), an entrypermission granted under subsection (1) is valid for 90 days.Subsection (3) requires a protection applicant to be permittedto enter the State except where that applicant is subject to anexclusion order under section 132. By subsection (4), a personwho is subject to an exclusion order under section 132 is notentitled to make a protection application without the consentof the Minister. Subsection (5) requires an immigration officerto give an entry permit to a foreign national to whom he or shehas granted an entry permission. By subsection (6), where theforeign national is already the holder of a residence permit, theimmigration officer must note the fact and date of the
7
8
permission in the foreign national’s travel document. Thegranting of an entry permission to a foreign national does notentitle that person to be granted a residence permission(subsection (7)).
41. Section 30 sets out provisions governing entry permits.
42. Section 31, based on section 4(3) of the Immigration Act 2004,sets out the grounds on which an immigration officer can refuseentry to the State and, by subsection (2), requires the officer togive reasons in writing for any such refusal.
43. Section 32 deals with the situation where a person would berefused an entry permission on health grounds, but thosegrounds are such as to preclude both return on a passengervehicle and permission to move freely in the State. Subsection(1) allows the person to be admitted to the State where adetention order is made in respect of that foreign nationalunder section 38 (as amended by section 35 of the Health Act1953) of the Health Act 1947. By subsection (2) that permissionis not reckonable as a period of residence for any other purpose.By way of exception to the normal 90-day limit for an entrypermission, by subsection (3) the entry permission under thissection is not to be time-limited; instead, by subsection (4), itexpires on the termination of the detention. At that point, theperson is to be treated as a person refused an entry permissionand all of the provisions of the Act dealing with that situationare to apply from then on. Subsection (5) is a notice provision.
44. Section 33 essentially restates section 2 of the Immigration Act2003. It details the responsibilities of carriers in ensuring thatall foreign nationals on board the vehicle have valid passports,enter the State at an approved port and present toimmigration officers.
45. Section 34 essentially restates section 3 of the Immigration Act2003. It provides for the service of notice and payment of fixedpenalties for offences committed under section 33.
PART 5
RESIDENCE
46. Part 5 (sections 35 to 57) of the Bill deals with residence inthe State. It outlines processes for the granting, renewal, non-renewal and revocation of residence permissions. It containsprovision whereby foreign nationals can obtain long-term aresidence permission with attendant rights in the State similarin most respects to those of Irish citizens. It also containsprovisions dealing with non-return orders.
47. Section 35 deals with residence permission. Subsections (1) and(2) clarify who is eligible to apply to the Minister for a residencepermission. Subsections (3) and (4) set out the process forapplying for a residence permission. By subsections (5) and (6),the Minister may, having regard to section 141 and anyregulations made under that section, grant a residencepermission of such category, by reference to such differentcircumstances and classes of foreign national and subject tosuch conditions as the Minister considers appropriate. Bysubsection (7), a residence permission is subject to theprovisions of the Act. Subsection (8) provides that a residence
permission does not, unless otherwise specified, entitle theholder to enter (or re-enter) the State, or to present himself orherself at a frontier of the State and seek permission to enterit. By subsection (9), an application for a residence permissionin respect of a foreign national child born in the State, may bemade not later than 3 months after his or her birth.
48. Section 36 provides for the establishment and maintenance of aregister of foreign nationals to whom residence permissionshave been granted.
49. Section 37 makes provision for the holder of a residencepermission to apply for a residence permission of a differentcategory and sets out the application process for such anapplication.
50. Section 38 deals with the factors which must be taken intoaccount in deciding whether a residence permission should begranted.
51. Section 39 makes provision for renewal of a residencepermission. Subsection (1) allows the holder of a renewableresidence permission to apply for its renewal. Subsection (2)sets out the application process. By subsection (3) the Ministeris not obliged to consider an application not made in accordancewith subsection (2)(a). By subsection (4), a renewable residencepermission becomes non-renewable if renewal has not beensought before the expiry of 3 months after the date of expiry.An exception to this arises where the absence of such anapplication was the result of either a genuine error, oversightor misunderstanding on the part of the foreign nationalconcerned, or exceptional circumstances relating to the foreignnational and under which, through no fault of the foreignnational, his or her application could not have been madewithin that period. Subsection (5) empowers the Minister torequire additional information for the purposes of determiningwhether a residence permission will be renewed. Subsection (6)provides for renewal of the residence permission, unless section40 applies.
52. Section 40 sets out the circumstances where the Minister canrefuse to renew a renewable residence permission and theprocess for such non-renewal. Subsection (1) allows for non-renewal where the applicant does not continue to satisfy thestated purpose of his or her residence in the State and anyconditions of his or her residence permission, where there aregrounds for the revocation of that permission or where thecircumstances existing at the time the permission was grantedhave changed such that, had the changed circumstances existedat that time, the permission would not have been granted.Subsections (2) and (3) provide for a notification process.Subsections (4) and (5) provide clarity as regards when thedecision not to renew takes effect. Subsections (6) and (7)provide clarity as to the immigration status of the personcomprehended by the section.
53. Section 41 provides for modification of conditions of a residencepermission. Subsection (1) allows for modification of conditionsof a residence permission either on application by the holder ofthat permission or on the initiative of the Minister. Subsection(2) clarifies that the modified residence permission can be validfor the unexpired period of the original permission or, if theMinister wishes to change that, such period as he or she
9
10
determines when modifying the permission. Subsection (3)allows for continuance of a residence permission that hasexpired during the process under section 42 or 43 subject to anymodification made by the Minister.
54. Section 42 makes provision for an application for modificationof the conditions of a residence permission by the holder of thatpermission. Subsection (1) and (2) provide for the applicationprocess and also sets out the circumstances where anapplication cannot be made. Subsection (3) allows the Ministerto require additional information from the applicant. Subsection(4) is the power for the Minister to make appropriatemodifications. Subsection (5) contains a notificationrequirement.
55. Section 43 makes provision for modification of the conditionsof a residence permission on the initiative of the Minister.Subsections (1) and (2) set out the requirement on the Ministerto notify the foreign national of his or her intention to modifythe conditions of the permission including the possibility ofmaking representations as to why the proposed modificationshould not proceed. Subsections (3), (4) and (5) provide clarityas to when a decision to modify the conditions has effect.
56. Section 44 sets out provisions governing residence permits.
57. Section 45 sets out provisions governing replacement ofresidence permits that have been lost, destroyed, damaged orare otherwise illegible.
58. Section 46 contains provision for the issue of a long-termresidence permission to a foreign national. By subsection (1) aforeign national seeking a long-term residence permission mustmeet the standard eligibility requirements (set out in subsection(4)) or any more favourable requirement that may be set out inregulations. Subsection (2) sets out the application process fora long-term residence permission. A long-term residencepermission will be valid for a period of 5 years and will berenewable on conditions (subsection (3)). Subsection (5) sets outthe periods of residence which are not reckonable for thepurposes of qualifying for long-term residence. By subsection(6), the Minister can refuse to grant a long-term residencepermission where he or she is of the opinion that the foreignnational’s presence in the State would be a risk to nationalsecurity, public security, public health or contrary to publicpolicy (‘‘ordre public’’). Subsection (7) sets out the entitlementsattaching to a long-term residence permission. The holder of along-term residence permission will be issued with a long-termresidence permit (subsection (8)). By subsection (9), theMinister must secure the prior approval of both Houses of theOireachtas to any regulations setting out more favourableconditions attaching to long-term residence permission.Subsection (10) defines ‘‘dependants’’ and ‘‘qualifyingdependants’’ for the purposes of the section.
59. Section 47 sets out an application process for renewal of long-term residence permission. Subsection (1) allows the holder ofa long-term residence permission to apply for its renewal.Subsections (2) and (3) set out the application process. Bysubsection (4) the Minister is not obliged to consider anapplication not made in accordance with subsection (2)(a).
60. Section 48 sets out the circumstances in which the Minister canrefuse to renew a long-term residence permission. Such refusalcan only take place where there are grounds for revocation andthe procedures at sections 51 and 52 are engaged.
61. Section 49 provides for the revocation of an entry permission, aresidence permission (subsection (1)) and a long-term residencepermission (subsection (2)).
62. Section 50 sets out the procedure for revocation of an entrypermission or a non-renewable residence permission.Subsection (1) contains the requirement to notify the foreignnational, where necessary and practicable in a language that heor she understands, of the revocation. Subsection (2) sets outwhat a notification under subsection (1) should contain,including a statement of the reasons for the revocation, and thepossibility to make a review application. Subsections (3) and (4)set out when a revocation will take effect. Subsection (5) dealswith the lawfulness of the presence in the State of the foreignnational until the review has been determined and notified.
63. Section 51 makes provision for a proposal by the Minister torevoke a renewable residence permission or a long-termresidence permission. The framework is consistent with othersimilar provisions in the Bill insofar as it provides fornotification of the proposal (subsection (1)), the opportunity tomake representations (subsection (2)(c)), clarifies when thedecision to revoke comes into effect (subsections (3) and (5)),clarifies the immigration status of the holder pending thecoming into effect of the proposal (subsection (6)).
64. Section 52 makes provision for consideration of representationsin respect of a proposal under section 51. Subsections (2) and(5) set out the arrangements for making representations.Subsections (3) and (4) set out the matters to which the Ministermust have regard in determining whether to revoke a renewableresidence permission (subsection (3)) or a long-term residencepermission (subsection (4)). Subsection (6) requires the Ministerto arrive at a determination and to notify the foreign nationalof that determination. Subsection (7) specifies what should bein the notification.
65. Section 53 sets out a review process. Subsection (1) defines thedecisions comprehended by the process, namely a refusal torenew a residence permission under section 40 and a revocationof an entry permission or a non-renewable residence permissionunder sections 49 and 50. Subsection (2) sets out the entitlementof a foreign national to seek a review. Subsections (3) and (4)set out the application process and the requirement on theMinister to arrange for the review. By subsection (5) a reviewofficer will deal with the review. That officer will not be theperson who made the initial decision and will be of anequivalent or higher grade than that person. By subsections (6)and (7) the review officer can make enquiries and must, indetermining the review, have regard to all relevant informationwhether or not provided by the applicant.
66. Section 54 empowers a review officer to confirm or set aside avisa refusal or revocation. A confirmation can be on the samegrounds or other grounds as the initial refusal or revocation(subsection (2)). Subsections (3) and (4) are noticerequirements. Where the refusal to renew is set aside, theresidence permission will be renewable (subsection (5)). Where
11
12
the revocation is set aside, the permission will not be revoked(subsection (6)).
67. Section 55 enables the Minister to make a non-return order incertain circumstances. A non-return order is an order requiringa foreign national who has left the State (including having beenremoved from the State) in consequence of the non-renewal,revocation or expiry, as the case may be, of a permission toremain outside the State for such period as is specified in thenon-return order.
68. Section 56 deals with the powers of immigration officers to acton the Minister’s behalf in dealing with applications forresidence permissions. By subsection (1), the exercise of thesefunctions on the Minister’s behalf, must be in compliance withthe Act, any regulations made under it and any directions theMinister may give under section 143. Subsection (2) allows theMinister, by regulation, to prescribe categories of residencepermissions or a class or classes of foreign national in respectof which, or in respect of whom, subsection (1), or any part ofthat subsection, will not apply.
69. Section 57 is a regulation-making power whereby the Ministercan prescribe procedures and forms for any applicationprovided for under this Part, and the circumstances whereapplications required under this Part to be made at a specifiedimmigration area office, may be made otherwise than inaccordance with that requirement, and the places andprocedures for making such applications.
PART 6
REMOVAL FROM THE STATE
70. Part 6 (sections 58 to 66) of the Bill contains provisions dealingwith removal of a foreign national from the State. Removal willonly arise where the foreign national concerned, beingunlawfully present in the State, has failed to comply with his orher obligation under section 6 to leave.
71. Section 58 contains a statement, at subsection (1), of the ruleagainst refoulement (the definition of which is set out in section2). Subsection (2), which preserves the operation of theExtradition Acts and the European Arrest Warrant Act 2003,is based on section 25 of the Refugee Act 1996.
72. Section 59 provides for the removal from the State, by animmigration officer or a member of the Garda Síochána, of aforeign national unlawfully present in the State or at a frontierof the State. It is based on section 5(5), (8) and (12) of theImmigration Act 2003. It requires the person being removed(subsection (3)) or his or her parent, guardian or person havingresponsibility for him or her (subsection (5)) to co-operate inany way necessary to facilitate the removal. A person removedunder this section is ineligible for permission to enter the Statefor 6 months from the date of removal (subsection (8)) but thisperiod may be disregarded in certain circumstances(subsection (9)).
73. Section 60, which is based on provisions in section 5 of theImmigration Act 1999 and section 5 of the Immigration Act2003, provides for the arrest and detention of a foreign national
for the purposes of removing him or her from the State. Bysubsection (5), the foreign national may be detained only untilsuch time as he or she is removed from the State. By subsections(8) and (9), where the foreign national is a party to anyproceedings, the High Court may order his or her release fromdetention if satisfied that those proceedings require his or hercontinued presence in the State and may make such releasesubject to conditions.
74. Section 61 provides for an alternative to detention under section60; namely, a requirement to comply with a written directiongiven by an immigration officer or a member of the GardaSíochána including a direction to reside or remain in aspecified place.
75. Section 62 is based on section 14 of the Immigration Act 2004and allows for conditions to be imposed on foreign nationalsunlawfully present in the State where the immigration officeror member of the Garda Síochána considers that arrest, orarrest and detention, of the foreign national is not warranted.The section is without prejudice to the power to arrest, or arrestand detain, in sections 60 and 61.
76. Section 63 contains supplementary provisions to sections 60, 61and 62.
77. Section 64 is based on section 5(4) of the Immigration Act 1999and section 5(2)(b) of the Immigration Act 2004, and providesthat the detention provisions of section 60 do not apply to aforeign national who is under 18 years of age. However, bysubsection (4) such a foreign national may be required tocomply with the conditions set out in section 61 or 62 and failureto so comply may result in arrest and detention under section60 (subsection (5)).
78. Section 65, which is based on provisions in section 5 of theImmigration Act 1999 and section 5 of the Immigration Act2003, provides for the responsibilities of carriers in relation toremoval of persons from the State. An immigration officer or amember of the Garda Síochána may place a detained foreignnational on a ship, aircraft or other vehicle that is about to leavethe State (subsection (1)). The person in charge of the ship,aircraft or other vehicle shall, if so directed within a reasonabletime before departure (subsection (3)), must receive such aforeign national on board (subsection (2)). By subsection (7),the Minister will reimburse the reasonable expenses (which bysubsection (8) may be prescribed) incurred by the carrier incomplying with subsections (1) and (2). Where a detainedforeign national arrived in the State by means of a ship, aircraftor other vehicle the person in charge of the ship, aircraft orother vehicle must, if so directed, remove the foreign nationalwithout delay from the State (subsection (4)) or arrange for hisor her removal by another carrier (subsection (5)). A carrierwho fails to comply with a direction under subsection (4) or (5)commits an offence (subsection (10)). By subsection (6) theofficer or member may make alternative arrangements wherethe carrier fails to comply with a direction under subsection (4)or (5) and the costs of such arrangements will be recoverablefrom the carrier concerned (subsection (9)).
79. Section 66 provides that the Minister may require a foreignnational removed from the State to pay the reasonable expensesincurred by virtue of his or her detention, removal and
13
14
maintenance for the purposes of that removal, subject tomaximum amounts which may be prescribed.
PART 7
PROTECTION
80. Part 7 (sections 67 to 120) of the Bill contains provisions relatingto the meaning, content, procedures and eligibility criteriarelating to the giving of protection to a foreign national in theState. It integrates many of the provisions of the Refugee Act1996 and the European Communities (Eligibility for Protection)Regulations 2006, with appropriate modifications to takeaccount of the introduction of a unified process for thedetermination of protection applications (‘‘single procedure’’).It also effects the transposition into Irish domestic law of theProcedures Directive. In addition, it contains provisions dealingwith programme refugees, temporary protection, traveldocuments and family members of protected persons.
Chapter 1 (sections 67 to 74)
General
81. Section 67 is an interpretation section.
82. Section 68 restricts the application of the Freedom ofInformation Acts 1997 to 2003 in relation to records relating tothe determination of a protection application.
83. Section 69 provides that a person who is either a refugee or aperson eligible for subsidiary protection is entitled to protectionin the State (subsection (1)). For the purposes of the unifiedprocess for the determination of protection applications,subsection (2) deems an application for any form of protectionto be an application for refugee status. By subsection (3), aprotection applicant is presumed not to be in need of protectionin the State if his or her country of origin has been designatedas a safe country of origin under section 117, and he or she hasnot shown any reasonable grounds for considering that,notwithstanding that designation, he or she, in his or herparticular circumstances, is entitled to protection in the State,or he or she had lodged a prior protection application inanother state party to the Geneva Convention and he or shehas not shown reasonable grounds for the contention that he orshe is entitled to protection in the State.
84. Section 70 outlines the nature and source of the informationwhich must be taken into account in the course of aninvestigation into a protection application. It is based onRegulations 5, 6 and 7 of the European Communities(Eligibility for Protection) Regulations 2006.
85. Section 71 is based on Regulation 9 of the EuropeanCommunities (Eligibility for Protection) Regulations 2006 andoutlines what may constitute persecution for the purpose ofassessing whether a person is a refugee.
86. Section 72 is based on Regulation 10 of the EuropeanCommunities (Eligibility for Protection) Regulations 2006 and
outlines some of the factors which will be taken into account inassessing whether persecution exists.
87. Section 73 is based on section 2 of the Refugee Act 1996 andRegulations 12 and 13 of the European Communities(Eligibility for Protection) Regulations 2006 and sets out thecircumstances in which an applicant for protection will beexcluded from receiving protection in the State.
88. Section 74, based on provisions at section 21 of the Refugee Act1996 and Regulations 11 and 14 of the European Communities(Eligibility for Protection) Regulations 2006, provides for thecircumstances in which a person ceases to be a refugee or aperson eligible for subsidiary protection in the State.
Chapter 2 (sections 75 to 80)
Protection applications
89. Section 75 makes provision for the granting (subsection (1)) ofa protection application entry permission to a protectionapplicant which allows the person concerned to be lawfullypresent in the State for the purpose of having his or herprotection application investigated (subsection (2)). Subsections(3) and (4) set out the conditions attaching to a protectionapplication entry permission and its validity. Subsections (5) and(6) set out the obligations of the holder of the permission. Bysubsection (9), the holder of a protection application entrypermission must be granted a protection application entrypermit.
90. Section 76 provides for the establishment and maintenance of aregister of protection applicants to whom protection applicationentry permissions have been granted.
91. Section 77 contains provisions governing protection applicationentry permits.
92. Section 78 contains provisions governing the granting of aprotection application entry permit at the frontier. Where it isnot possible to issue a protection application entry permit tothe foreign national concerned, the immigration officer willrequire him or her to reside in a specified place until the permitcan be issued as a matter of priority.
93. Section 79 contains provisions allowing for the arrest anddetention of protection applicants and for court oversight ofsuch detention. It is based on section 9(8), (9), (10), (11), (12),(13), (14) and section 10 of the Refugee Act 1996. The onlysubstantive change from existing law is the addition of twofurther grounds for detention at subsection (1)(g) and (h),relating to whether the immigration officer or member of theGarda Síochána has reasonable grounds for suspecting that theprotection application has been made to delay removal fromthe State, either where removal is imminent or where theapplication is one made following the failure of an earlier claim.
94. Section 80 makes provision for priority to be given toapplications from protection applicants who have beendetained. It is based on section 10(4) of the Refugee Act 1996.
15
16
Chapter 3 (sections 81 to 99)
Protection application procedure
95. Section 81 outlines the procedure for a foreign national,whether lawfully or unlawfully in the State, to make anapplication for protection to the Minister. The section is basedon sections 8 and 11(8) of the Refugee Act 1996 and Articles 6and 10 of the Procedures Directive.
96. Section 82 makes provision for deeming certain protectionapplications inadmissible and gives effect to Articles 25 and 26of the Procedures Directive. Subsection (1) sets out thecircumstances on foot of which a protection application can bedetermined to be inadmissible. By subsection (3), when anapplication is determined to be inadmissible, any investigationwill be terminated and a report will be prepared which will,amongst other things, set out the reasons for that determinationand will state that the protection applicant is not entitled toprotection in the State. The protection applicant is unlawfullypresent in the State and may be removed from the State inaccordance with the provisions of the Act.
97. Section 83 sets out the process whereby the Minister willinvestigate protection applications. It is based on section 11(1)to (5) and (12) of the Refugee Act 1996. It also takes accountof Articles 12 and 13 of the Procedures Directive.
98. Section 84, based on section 11A of the Refugee Act 1996,provides that the burden of proof for establishing a credibleclaim for protection is primarily on the person asserting the fearof persecution or serious harm, namely the protection applicant.This section also provides at subsections (2) and (3) for anobligation on the Minister and the Protection Review Tribunalto assess the relevant elements of the claim in co-operation withthe applicant.
99. Section 85, based on section 11B of the Refugee Act 1996(modified to reflect the single procedure), outlines the factorsthat are relevant in relation to the credibility of a protectionapplicant.
100. Section 86, based on section 11C of the Refugee Act 1996,places a duty on applicants, and all persons on whose behalf aprotection application is made, to cooperate with therequirements and procedures set by the Minister, includingfurnishing the Minister or the Tribunal with relevantinformation as to their identity and their reasons for applyingfor protection in the State.
101. Section 87, based on section 19(1) to (4) of the Refugee Act1996, makes provision for the protection of the identity ofapplicants for protection.
102. Section 88 deals with the first instance determination andprovides for the preparation of the report of the investigationinto the protection application conducted by the Minister.Subsections (1) and (2) are based on section 13(1) of theRefugee Act and Article 14 of the Procedures Directive.Subsection (3) sets out the possible outcomes of theinvestigation. Subsection (4) is based on section 13(6) of theRefugee Act 1996. Subsections (5) and (6) are based on Article23(2) of the Procedures Directive.
103. Section 89 deals with the Minister’s discretion to grant aresidence permission where protection is not being granted.
104. Section 90 provides a mechanism for a protection application tobe withdrawn or to be deemed withdrawn from the protectionapplication investigation process. It is based on sections 11(9)to 11(11) and 13(4) of the Refugee Act 1996 and Articles 19and 20 of the Procedures Directive.
105. Section 91, based on provisions in section 13 of the Refugee Act1996 and Article 14 of the Procedures Directive, provides thatthe Minister must notify a protection applicant of the Minister’sdetermination of the protection application and the reasons forthat determination. The notification must also inform theapplicant of the procedures in relation to an appeal to theProtection Review Tribunal against the Minister’sdetermination.
106. Section 92, based on section 16(1), (3), (4) (5) and (18) of theRefugee Act 1996, provides that a protection applicant mayappeal to the Protection Review Tribunal against adetermination of the Minister that he or she is not a refugee oris not a person eligible for subsidiary protection.
107. Section 93, based section 16(2A), (2B) and (9) of the RefugeeAct 1996, sets out the process for oral hearings under the Act.
108. Section 94 requires the Minister to provide the Tribunal withcopies of documents and information relevant to the firstinstance determination. Subsection (2) sets out thecircumstances where certain information can be withheld.Subsections (3) and (4) are based on section 16(6) and (7) ofthe Refugee Act 1996.
109. Section 95, based on section 16(2A), (2B) and (9) of theRefugee Act 1996, deals with the withdrawal or deemedwithdrawal of an appeal.
110. Section 96, based on section 16(2), (16), (16A) and (17) of theRefugee Act 1996, provides for the matters and material to beconsidered by the Protection Review Tribunal before decidingan appeal and the possible outcomes of an appeal.
111. Section 97, based on section 17(7) of the Refugee Act 1996 andArticles 32 and 34 of the Procedures Directive, makes provisionfor further applications for protection in the State.
112. Section 98 makes provision for the Minister or, as the case maybe, the Tribunal to obtain a report in relation to the health ofa protection applicant.
113. Section 99 makes provision for expedited investigation ofcertain classes of protection applications where the Ministerconsiders it appropriate to do so.
Chapter 4 (sections 100 to 108)
Protection Review Tribunal
114. Section 100, based on section 15 of the Refugee Act 1996 andparagraphs (9) and (10) of the Second Schedule to that Act,
17
18
provides for the establishment of the Protection ReviewTribunal, whose functions are set out later in the Bill.
115. Section 101 is based on paragraphs (1) to (8) of the SecondSchedule to the Refugee Act 1996 and deals with membershipof the Tribunal.
116. Section 102, based on paragraphs (12) to (20) of the SecondSchedule to the Refugee Act 1996, provides for the functionsand powers of the chairperson. Subsections (8) and (9) enablethe chairperson to deal with decisions of members of theTribunal that he or she considers to contain an error of lawor fact.
117. Section 103 sets out the role of a member of the Tribunal. Theprincipal element is to determine appeals under section 84 ofthe Act. Subsection (3) sets out the obligations of the Memberin carrying out his or her role.
118. Section 104 makes provision for the designation of a memberof the Staff of the Tribunal to be the Registrar of the Tribunal.
119. Section 105 sets out the functions of the Registrar whichinclude, in consultation with the chairperson, management andcontrol generally of the staff and administration of the Tribunal,and performance of such other functions as may be conferredon him or her by the chairperson and the assignment to eachmember of the appeals to be determined by him or her.
120. Section 106 makes provision for the establishment of anAdvisory Committee comprising (subsection (1)) thechairperson, and such other members of the Tribunal, notexceeding 5, as the Minister considers appropriate havingregard to subsection (3). By subsection (7), the main function ofthe Advisory Committee is to give such advice and make suchrecommendations to the chairperson on any matter relating tothe functions of the chairperson as it thinks fit, and to giveadvice and make recommendations to the chairperson on anysuch matter as the chairperson may request.
121. Section 107, based on section 19(4A) and (5) of the RefugeeAct 1996, makes provision for the publication of decisions ofthe Tribunal.
122. Section 108, based on section 12 of the Refugee Act 1996,provides that the Minister may give a direction to the Tribunalto accord priority to certain appeals.
Chapter 5 (sections 109 to 116)
Protection declarations and permits
123. Section 109, based on provisions at section 17 of the RefugeeAct 1996 and Regulation 17 of the European Communities(Eligibility for Protection) Regulations 2006, makes provisionfor the granting of (subsection (1)), or refusal to grant(subsection (2) and (7)), a protection declaration. By subsection(3), a protection declaration remains in force until it isestablished that the person is no longer entitled to protectionin the State. Subsections (4) and (5) set out the entitlements ofa person to whom a protection declaration is granted.Subsections (9) and (10) make provision for notification to the
applicant and the UNHCR of the granting or, as the case maybe, the refusal to grant a protection declaration.
124. Section 110 sets out provisions governing protection permissionsand permits. Subsection (1) provides for the granting of aprotection permission to a person to whom a protectiondeclaration has been granted. By subsection (2) the period ofvalidity of a protection permission is 3 years and it is renewableunless compelling reasons of national security or public policy(‘‘ordre public’’) otherwise require. A protection permit mustbe granted to a person who has been granted a protectionpermission (subsection (7)). By subsection (8), a protectionpermission renewed is valid for a specified period of not lessthan 3 years.
125. Section 111 sets out the circumstances in which a protectiondeclaration can be revoked. It is based on section 21 of theRefugee Act 1996 and Regulations 11 and 14 of the EuropeanCommunities (Eligibility for Protection) Regulations 2006.
126. Section 112 outlines the procedure which must be followedwhere the Minister proposes to revoke a protection declaration.The section has regard to section 3(4) and (6) of theImmigration Act 1999, section 21 of the Refugee Act 1996 andRegulations 11 and 14 of the European Communities(Eligibility for Protection) Regulations 2006 with suitablemodifications.
127. Section 113 deals with programme refugees and is based onsection 24 of the Refugee Act 1996.
128. Section 114 provides for a scheme of temporary protection inaccordance with Council Directive 2001/55/EC4 on minimumstandards for giving temporary protection in the event of a massinflux of displaced persons and on measures promoting abalance of efforts between EU Member States in receiving suchpersons and bearing the consequences thereof.
129. Section 115 provides for the issue of a travel document toprotected persons and their family members. The section isbased on section 4 of the Refugee Act 1996 and Regulation 18of the European Communities (Eligibility for Protection)Regulations 2006.
130. Section 116 sets out the circumstances under which the Ministermay grant permission to family members of the holder of aprotection declaration to enter and reside in the State. It placesan obligation on the sponsor and the family member concernedto co-operate with the Minister in the investigation of theapplication for that permission (subsection (3)). It also sets outthe entitlements of family members granted such permission(subsection (4)). The section is based on section 18 of theRefugee Act 1996 and Regulation 16 of the EuropeanCommunities (Eligibility for Protection) Regulations 2006.
Chapter 6 (sections 117 to 120)
Safe Countries
131. Sections 117, 118, 119 and 120 based sections 12(4) and (22) ofthe Refugee Act 1996 and, consistent with Articles 27, 30 and
4OJ L 212 of 7 August 2001
19
20
31 of the Procedures Directive, provides for the designation ofsafe countries of origin (section 116), the designation of safethird countries (section 117) and for the transfer of protectionapplications (sections 118 and 119) to safe third countries andto Council Regulation countries under the ‘‘Dublin II’’Regulation5.
PART 8
FURTHER PROVISIONS
132. Part 8 (sections 121 to 147) of the Bill contains miscellaneousprovisions.
133. Section 121, based on section 20 of the Refugee Act 1996,provides for certain offences pertaining to the making ofstatements or provision of documents which the person knows,or ought to know, to be false or misleading and the destruction,concealment, forgery, fraudulent alteration, sale supply orfacilitation of unlawful use of documents, including identitydocuments.
134. Section 122 is based on section 8 of the Immigration Act 2003and makes provision for the exchange of information relatingto the operation and administration of the law about the entryinto, presence in and removal from the State of foreignnationals.
135. Section 123 provides for the exchange of information (includingbiometric information) about a foreign national with otherstates and the making of arrangements with other states forthose purposes.
136. Section 124, taking account of section 9A of the Refugee Act1996, sets out the obligations of foreign nationals to providebiometric data to an authorised person (defined at subsection(11)). ‘‘Biometric information’’ is defined at section 2.Subsection (1) allows an authorised person, who can be a personmentioned in subsection (11), to require a foreign national tofurnish biometric information for the purposes listed inparagraphs (a) to (f). Subsection (10) creates an offence forfailure to provide that information. Subsections (2) and (3)contain safeguards in relation to provision of biometricinformation by persons under the age of 14 years. Subsection(4) sets out the consequences where a foreign national eitherdoes not provide biometric information or provides it in a waythat it is false or misleading. Subsection (5) allows the Ministerto store biometric information provided and subsections (7) and(8) make provision for retention and destruction of biometricinformation. By subsection (9) biometric information providedunder any other provision of the Bill is deemed to be biometricinformation provided under subsection (1). Subsection (11)contains definitions.
137. Section 125 essentially restates section 11 of the ImmigrationAct 2004 relating to the production of travel documentation bya foreign national on request.
5Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteriaand mechanisms for determining the Member State responsible for examining anasylum application lodged in one of the Member States by a third country national.OJ L50 of 25 February 2003
138. Section 126 requires a person embarking from the State toprovide documents and information to an immigration officerand to comply with instructions from such an officer. Failure todo so is an offence (subsection (3)). Subsection (2) clarifies thatbiometric information furnished is only for the purposes ofenabling an immigration officer to verify that a travel documentpresented by the person concerned relates to him or her and,in the case of a foreign national, comparison with any biometricinformation contained in the Register of Foreign Nationals orthe Register of Protection Applicants; retention, storage orcomparison of that information is not allowed.
139. Section 127 sets out the obligations on carriers in relation to theprovision of information in relation to persons embarking fromthe State and the uses to which that data can be put. Subsection(1) sets out, at paragraph (a), the purposes for which theinformation will be collected. Paragraph (b) sets out thetimeframe for transmission of the information and paragraph(c) sets out the arrangements that will apply where paragraph(b) cannot be complied with. Subsection (2) sets out theinformation that is to be transmitted. Paragraph (b) allows formore detailed information to be prescribed. Subsection (3) setsout the obligation of the carrier to comply with the requirementto transmit the information and creates an offence for failing todo so. A defence to the offence is provided for at subsection(5). Subsection (4) allows a requirement for transmission to beimposed in relation to a single journey, a series of journeys orall journeys to a from a specified destination. Subsection (6)makes provision for the sharing of the information transmitted.Subsection (7) requires a carrier to delete the informationwithin 24 hours of transmission and creates an offence forfailure to do so. By subsection (8) the Minister is required todelete advance passenger information within 24 hours exceptwhere it relates to a person of concern or a foreign national; inwhich case it will be stored in a database for processing undersubsection (9). Subsection (9)(b) sets out the rules fordestruction of the information. Separate regimes will apply topersons of concern and foreign nationals generally: Subsection(10) makes provision for an authorised officer to provideinformation from the database to a person, body or agencyreferred to in subsection (6) on foot of a written request wherethe provision of that information is necessary for a purpose thatis appropriate to that person, body or agency.
140. Section 128 is based on section 9 of the Immigration Act 2004and imposes an obligation on persons engaged in passengertransport, the provision of lodging or sleeping accommodationon a commercial basis, the provision of education or certainprescribed businesses to display a statutory notice stating theeffect of this Act and any directions given under it.
141. Section 129 is based on section 10 of the Immigration Act 2004and sets out the duty of the manager or proprietor of certainpremises, including a hotel or educational establishment, tokeep a register of all foreign nationals enrolled in, attending ator staying in the premises and to produce such a register whenrequired to do so by an immigration officer.
142. Section 130, based on section (3) of the Immigration Act 2004,deals with the appointment of immigration officers for thepurposes of the Act.
21
22
143. Section 131 provides for the powers that may be exercised byan immigration officer for the purpose of performing any of hisor her functions under the Act and is based on section 15 of theImmigration Act 2004.
144. Section 132 is based on section 4 of the Immigration Act 1999and enables the Minister, by order, to exclude a foreign nationalfrom the State.
145. Section 133 is based on section 5 of the Illegal Immigrants(Trafficking) Act 2000 and deals with judicial review for thepurposes of the Act. Subsection (1) lists the acts, decisions ordeterminations that may be challenged under the section. Bysubsection (2) an application for judicial review must be madewithin 14 days of the impugned decision. This period may beextended where the High Court is satisfied that substantialgrounds exist for doing so. Subsection (3) sets out thecircumstances where the High Court may not extend the period.By subsection (7) the High Court may award costs against alegal representative of an applicant who has initiated judicialreview proceedings which, in the opinion of the Court, werebased on frivolous or vexatious grounds. An application forleave to apply for judicial review will not of itself (subsection(8)) suspend or prevent the transfer, or removal of a foreignnational from the State unless the Court considers it necessaryfor that foreign national to be in the State in order to giveinstructions to his or her legal representative. Subsection (9)operates to prevent a foreign national, following the rejectionof his or her protection application, from challenging his or herremoval solely on the basis of information that could reasonablyhave been available to the person but was not available to theMinister or the Tribunal before the rejection of the application.
146. Section 134 sets out a range of penalties to apply to the offencesprovided for in the Act.
147. Section 135 makes provision for penalties in the case of abody corporate.
148. Section 136 is based on section 6 of the Immigration Act 1999and provides for matters pertaining to the service of notices forthe purposes of the Act.
149. Section 137 based on sections 8 and 9 of the Aliens Act 1935,provides for restrictions applicable to certain foreign nationalsin relation to change of name.
150. Section 138 makes provision in relation to marriages ofconvenience. Subsection (1) allows the Minister, in making hisor her determination of any immigration matter (defined atsubsection (7)), to disregard a particular marriage as a factorbearing on that determination where he or she deems ordetermines that marriage to be a marriage of convenience.Subsection (2) imposes a requirement on the Minister to notifythe parties concerned where he or she has reasonable groundsfor considering that the marriage is a marriage of convenience,and to afford them an opportunity to satisfy the Minister thatthe marriage is not a marriage of convenience. Subsection (3)places the onus on the person concerned to establish, to thesatisfaction of the Minister, that the marriage is not a marriageof convenience and, where that onus is not discharged, theMinister may, for the purpose of his or her determination ofthe relevant immigration matter, deem the marriage to be a
marriage of convenience. Subsection (4) provides that the factthat a marriage has been considered in the context of a previousimmigration matter does not prevent it being opened to scrutinyagain. Subsection (5) sets out the matters to which the Ministermust have regard in determining whether a marriage referredis a marriage of convenience. Subsection (6) allows the Ministerto prescribe procedures and forms for the purposes of thissection.
151. Section 139 makes provision for certain immigration-relatedmatters concerning the treatment of foreign nationals who arereasonably believed to be victims of trafficking. By subsection(1), a foreign national may be granted a recovery and reflectionperiod (defined at subsection (11) as being a period of 60 days)during which the person can remain in the State. The purposeof a recovery and reflection period is to enable the foreignnational to recover and escape the influence of the allegedperpetrators of the trafficking so that he or she can take aninformed decision as to whether to assist the Garda Síochánaor other relevant authorities in relation to any investigation orprosecution arising in relation to the alleged trafficking. Bysubsection (2), a recovery and reflection period can beterminated where the Minister is satisfied: that the foreignnational has renewed contact with the alleged perpetrators ofthe trafficking; that it is in the interest of national security orpublic policy (‘‘ordre public’’) to do so; or where the victimstatus was improperly claimed. By subsection (3) a foreignnational will not be removed from the State for so long as therecovery and reflection period relating to him or her remains inforce. Subsection (5) makes provision for a temporary residencepermission (which, by subsection (6), is renewable) to begranted to the foreign national where it is necessary to allowhim or her to continue to assist the Garda Síochána or otherrelevant authorities in relation to any investigation orprosecution arising in relation to the alleged trafficking.Subsections (8) and (9) make provision for revocation of atemporary residence permission granted under subsection (5).By subsection (10), the Minister may by regulations makespecial provision for foreign nationals or classes of foreignnational under the age of 18 years.
152. Section 140 requires the Minister to make regulationsprescribing the treatment of foreign nationals who are arrestedand detained under section 6, Part 6 or Part 7 and sets out thematters that may be comprehended by such regulations.
153. Section 141 is a regulation-making power whereby the Ministercan make regulations for the purposes of ensuring the orderlyregulation of migration, the integrity of the immigration system,the maintenance of public security, public order or public policy(‘‘ordre public’’).
154. Section 142 allows the Minister, with the consent of the Ministerfor Finance, to prescribe fees for the different processes underthe Bill and sets out the matters by reference to which fees maybe prescribed.
155. Section 143 allows the Minister to give directions to immigrationofficers in relation to the matters set out in the section.
156. Section 144 deals with public security matters. By subsection (1),the Minister’s opinion that it is necessary, on grounds ofnational security, public security, public order or public policy
23
24
(‘‘ordre public’’), to either refuse an entry permission or toattach conditions on such permission, is evidence in anyproceedings that the foreign national concerned is or would bea threat to national security, public security or public order orwould be contrary to public policy (‘‘ordre public’’) or, as thecase may be, that such conditions are necessary on that basis.By subsection (2) the Minister is not obliged to disclose thesource of information upon which he or she formed the opinionreferred to in subsection (1). By subsections (3) and (4) theMinister is enabled to withhold sensitive or confidentialinformation.
157. Section 145 deals with bonds, deposits and guarantees.Subsection (1) applies the section to cases where a foreignnational is required to provide a deposit or enter into a bondunder a relevant provision. Subsection (2) allows the Minister,an immigration officer or a member of the Garda Síochána, inaccordance with a relevant provision, to fix the amount of adeposit or bond. In doing so, they must have regard to anycriteria specified in regulations under subsection (12).Subsection (3) requires the Minister, immigration officer ormember of the Garda Síochána to be satisfied as to thesufficiency and suitability of the person before he or she can actas a guarantor. Subsection (4) sets out the requirements for aperson to act as a guarantor. Subsection (5) envisages aguarantor being a person other than a natural person; forexample, a company. Subsection (6) is a notificationrequirement on the Minister. Subsection (7) sets out the periodsfor which a deposit is not be refundable, and a bond is to remainin effect. Subsection (8) outlines the procedure where theMinister intends to secure the forfeit of a deposit or to enforcea bond or guarantee. Subsection (9) obliges the Minister torefund a deposit, or release a bond, at the end of the periodreferred to in subsection (7) if satisfied that the foreign nationalto whom the deposit or bond relates has not failed to complywith any condition. By paragraph (b), the Minister cannotsecure the forfeit of a deposit or enforce a bond or guaranteebefore the end of that period. Subsection (10) allows theMinister to waive all or any part of a sum to be forfeited orpaid under this section or refund all or any part of a sum soforfeited or paid. Subsection (11) makes provision for a foreignnational to apply for the refund of a deposit in accordance withthe prescribed procedures. Subsection (12) is a regulation-making power. Subsection (13) deals with disposal of a depositforfeited under this section.
158. Section 146 makes provision for publication of statisticalinformation.
159. Section 147 makes provision for amendments to variousenactments.
PART 9
SMUGGLING OF PERSONS
160. Part 9 (sections 148 to 157) implements EU council directive2002/90/EC defining the facilitation of unauthorised entry,transit and residence, EU Framework Decision 2002/946/JHAon the strengthening of the penal framework to prevent thefacilitation of unauthorised entry, transit and residence and theProtocol against the smuggling of migrants by land, sea and air
supplementing the UN Convention against TransnationalOrganised Crime.
161. Section 148 is the interpretation section.
162. Section 149 provides for offences of knowingly facilitating theunlawful entry into or unlawful presence in the State or adesignated state (defined in section 148) of another person(subsections (1) and (2)). Subsection (5) sets out penalties forthese offences. Subsection (3) provides for a defence forpersons, who in the course of their employment for a bona fideorganisation, assist persons in unlawful entry or residence forthe purposes of seeking protection. Such assistance must not becarried out for gain and the bona fide organisation in questionmust be an organisation whose purpose is to provide assistancewithout charge to persons seeking protection.
163. Section 150 provides that proceedings for smuggling offencescommitted outside the State, which may only be taken by orwith the consent of the Director of Public Prosecutions, may betaken in any place in the State and enables persons chargedwith these offences to be tried anywhere in the State.
164. Section 151 makes provision for evidence in proceedings.
165. Section 152 provides that a person who has been acquitted orconvicted outside the State of an offence shall not be proceededagainst for an offence under this Act consisting of the act oracts that constituted the offence of which that person was soacquitted or convicted.
166. Sections 153, 154 and 155 are based on provisions of sections 35and 36 as well as the First Schedule of the Criminal Justice Act1994 and the Criminal Justice (Illicit Trafficking by Sea) Act2003. The Sections are intended to give effect to the ProtocolAgainst the Smuggling of Migrants by Land, Sea and Airsupplementing the UN Convention against TransnationalOrganised Crime. Article 8 requires states to provide forappropriate measures, including boarding and searching avessel, registered in a state party to the Protocol.
167. Section 153 details the circumstances under which enforcementofficers may exercise their powers in relation to an Irish ship, aship registered in another state that is a party to the UNProtocol against migrant smuggling or a ship not registered inany country or territory.
168. Section 154 details the powers which enforcement officers willhave to stop, board and detain ships suspected of being engagedin migrant smuggling. Enforcement officers will have powers tosearch ships and seize any items or materials which mayconstitute evidence of migrant smuggling. Enforcement officerswill also have powers to arrest, without warrant, anyonesuspected of being guilty of an offence of migrant smuggling.
169. By section 155, an enforcement officer may not exercise hispowers outside the territorial seas of the State in relation to aship registered in another Convention State (defined in section148) unless a request or authorisation has been received fromthat Convention State through the appropriate diplomaticchannels.
25
26
170. Sections 156 and 157 restate section 3 and 4 of the IllegalImmigrants (Trafficking) Act 2000. This restatement isnecessitated by the repeal of that Act.
PART 10
TRANSITIONAL ETC., PROVISIONS
171. Part 10 (sections 158 to 168) of the Bill deals with transitional,etc., provisions. The part contains necessary transitionalarrangements in relation to immigration matters (section 159),deportation, removal and exclusion (section 160), appointmentand powers of immigration officers (section 161), detention(section 162), protection matters (section 163), ProtectionReview Tribunal (section 164), continuity of statutory timeperiods (section 165), continuity of validity of travel documents(section 166), judicial review (section 167) and transitionalarrangements relating to the repeal of the Illegal Immigrants(Trafficking) Act 2000 (section 168).
Financial implications
172. The Bill is expected to generate efficiencies in the State’simmigration and protection processes with consequent savingsin costs to the Exchequer.
An Roinn Dlí agus Cirt agus Athchóirithe Dlí,Meitheamh, 2010.
Wt. —. 748. 6/10. Cahill. (X56499). Gr. 30-15.