Pat Rabbitte
Question:299 Mr. Rabbitte asked the Minister for Justice, Equality and Law Reform if he will outline the appeals procedure to which asylum seekers can resort in the event of their application being turned down. [14383/98]
Written Answers. - Asylum Applications.
Appeals procedures following the refusal of applications for asylum are set out in the Department's letters of 10 December 1997 and 13 March 1998 to Ms Hope Hanlon, the UNHCR representative.
A copy of the procedures is available in the Dáil Library. A copy is also attached for the Deputy's information. Paragraphs 13 and 15 to 18 deal with appeals.
Appeals procedures in cases dealt with under the Dublin Convention are set out in Article 7 of the Dublin Convention (Implementation) Order, 1997 (S. I. No. 360 of 1997) which was made under section 22 of the Refugee Act, 1996.
Procedures for processing asylum claims
General
1. An application for refugee status (hereafter referred to as "asylum") may be made by an applicant to an immigration officer on arrival in the State, or, if the person is already within the State to the Department of Justice, Equality and Law Reform or, if outside Dublin, to any Garda station.
2. Immigration officers have been provided with written guidelines which draw attention to the statutory definition of a refugee contained in section 2 of the Refugee Act, 1996, and to the prohibition on refoulement contained in section 5 of that Act.
3. Whenever it appears to an immigration officer as a result of a claim or information given by an individual that he or she might be an asylum-seeker, the following initial procedure will apply. The immigration officer will interview the person with the purpose of eliciting sufficient information for the officer of the Department appointed under section 22(4)(a) of the Refugee Act, 1996, to decide if the application should be dealt with in the State or otherwise (currently the Dublin Convention (Implementation) Order 1997 (S. I. No. 360 of 1997) applies in this regard).
4. Immigration officers have been instructed that it is not necessary for an individual to use the term "refugee" or "asylum" in order to be an asylum-seeker. Whether or not a person is an asylum-seeker is a matter of fact to be determined in the light of all the circumstances of the particular case as well as guidelines which may be issued from time to time by the Department. Where necessary and possible, an interpreter shall be provided so that the individual may make his or her wishes known. In cases of doubt, the immigration officer shall consult the Department.
Admissibility
5. An asylum seeker may be granted or refused leave to land in accordance with normal immigration criteria as the individual circumstances warrant. However, any refusal of leave to land in such circumstances will have suspensive effect, and such a person will not be removed from the State, until either—
it is determined that the individual is not in fact seeking asylum in the State, or a final decision has been made under the Dublin Convention (Implementation) Order that the application should be dealt with in another convention country, or
It is decided that the application is manifestly unfounded, or
the application has been deemed to be abandoned, or
the application has been examined substantively in the State and a final decision reached on it.
Substantive consideration
6. An asylum application for which the State has responsibility will be examined by reference to the definition of "refugee" contained in section 2 of the Refugee Act, 1996. The following paragraphs set out the procedure by which that examination will take place.
7. The applicant will be given an opportunity to submit his or her case to the Department and to contact the UNHCR Representative and/or a local representative of his or her choice. The applicant will be informed of the procedure to be followed and of these rights, where possible in a language which he or she understands.
8. The applicant will be interviewed by a person appointed by the Minister or by an immigration officer. Where necessary and possible, the interview will be conducted with the aid of an interpreter. The applicant may be accompanied at the interview by a representative, who will, however, refrain from answering questions for the applicant or intervening in any way in the conduct of the interview. The representative will be given an opportunity at the end of the interview to make briefly any points which are considered necessary.
9. At any point before, or up to five working days after, the interview the applicant or his or her representative may make written representations relating to the case.
10. A person appointed by the Minister will assess the case having regard to the interview, the report of the interview, to any written representations duly submitted and to such information as may be obtained from UNHCR or other internationally reliable sources. Such person will make a recommendation as to whether refugee status should be granted or refused.
11. A person duly authorised by the Minister will make a decision based on the information made available during the process described above. The applicant will be notified by registered post of the decision and of the reasons for it, and (if the decision is negative) of the right to appeal the decision within 14 days of the notification being sent, setting out the grounds on which the appeal is based. The applicant in his or her notice of appeal shall specify if an oral hearing is required.
Manifestly unfounded cases: accelerated procedure
12. Where at any time following receipt of an application any of the circumstances set out at paragraph 14 below emerges, a person duly authorised by the Minister may decide to terminate further examination of the case on the grounds that it is manifestly unfounded and to refuse the application for refugee status accordingly. The applicant will be notified by registered post of the decision and of the reasons for it, and of the right to appeal the decision within seven working days of the notification being sent, setting out the grounds on which the appeal is based. UNHCR will also be notified of each such decision and provided with a copy of any appeal submissions made.
13. (a) The appeal will be determined by An Appeals Authority, a person independent of the Minister and the Department with not less than seven years' practice as a solicitor or barrister appointed by the Minister for this purpose (more than one such person may be appointed). The Appeals Authority will be provided with all of the papers available in the case and with such submissions as may be made by or on behalf of the applicant in connection with the appeal. The Appeals Authority will make a determination based on the papers only. Where UNHCR has made no observations in the case within seven working days of the decision under appeal, it will be assumed that no observations are being offered.
(b) The Appeals Authority will make a recommendation to the Minister as to whether the original determination should stand or whether the application should be considered substantively.
(c) A duly authorised officer of the Department will make a decision based on the recommendation of the Appeals Authority, but subject to considerations of national security or public policy (ordre publique).
(d) If the appeal is decided in favour of the applicant, the applicant will be notified of the decision and processing of the application will resume. Otherwise the applicant will be notified of the decision and the provisions of paragraph 21 below will have effect.
14. The grounds on which it may be determined that an application is manifestly unfounded are as follows:
(a) it does not show on its face any grounds for the contention that the applicant is a refugee,
(b) the applicant gave clearly insufficient details or evidence to substantiate the application,
(c) the applicant's reason for leaving or not returning to his or her country of nationality does not relate to a fear of persecution,
(d) the applicant did not reveal, following the making of the application, that he or she was travelling under a false identity or was in possession of false or forged identity documents and did not have reasonable cause for not so revealing,
(e) the applicant, without reasonable cause, made deliberately false or misleading representations of a material or substantial nature in relation to the application,
(f) the applicant, without reasonable cause and in bad faith, destroyed identity documents, withheld relevant information or otherwise deliberately obstructed the investigation of the application,
(g) the applicant deliberately failed to reveal that he or she had lodged a prior application for asylum in another country,
(h) the applicant submitted the application for the sole purpose of avoiding removal from the State,
(i) the applicant has already made an application for a declaration or an application for recognition as a refugee in a state party to the Geneva Convention, and the application was properly considered and rejected and the applicant has failed to show a material change of circumstances,
(j) the applicant is a national of or has a right of residence in a state party to the Geneva Convention in respect of which the applicant has failed to adduce evidence of persecution,
(k) the applicant has, after making the application, without reasonable cause, left the State without leave or permission or has not replied to communications, or
(l) the applicant has already been recognised as a refugee under the Geneva Convention by a state other than the State, has been granted asylum in that state and his or her reason for leaving or not returning to that state does not relate to a fear of persecution in that state.
Appeals
15. Where an appeal is made within the specified time against a decision (other than in manifestly unfounded cases or in cases deemed to be abandoned (see paragraph 20)) to refuse refugee status, the applicant will be supplied with all of the material (other than material which has been supplied to the Department on the basis that it will not be disclosed further) on which the decision was based. The appeal will be determined by an Appeals Authority, a person independent of the Minister and the Department with at least ten years' practice as a solicitor or barrister appointed by the Minister for this purpose (more than one such person may be appointed). The Appeals Authority will be provided with all of the information provided to the applicant and with such submissions as may be made by or on behalf of the applicant in connection with the appeal. The Appeals Authority will make a decision based on the papers only or, where the applicant has so requested, following an oral hearing.
16. Where an applicant fails to attend at an appeal hearing, having requested and being granted an oral hearing and having been duly informed of the date thereof, the appeal shall be considered on the basis of written documentation already available to the Appeals Authority.
17. The Appeals Authority will make a recommendation to the Minister as to whether refugee status should be granted.
18. A duly authorised officer of the Department will make a final decision on refugee status on behalf of the Minister based on the recommendations of the Appeals Authority, but subject to considerations of national security or public policy(ordre publique).
Grant of status
19. Where refugee status is granted, the applicant will be notified accordingly and will be provided with documentation confirming his or her status and the nature and extent of his or her rights under the 1951 Convention and associated Protocol.
Abandoned cases
20. Where an applicant fails to attend at an interview or is otherwise uncontactable without good and sufficient reason his or her case will be considered to be abandoned. A notice to this effect will be sent to the applicant at his or her last known address by registered post. If the applicant subsequently comes to the attention of the authorities he or she will be considered to be an illegal immigrant and will be dealt with in accordance with immigration (nonasylum) rules.
Refusal
21. Where refugee status is either refused at first instance and not appealed within the time specified, or is refused following an appeal, the applicant will be invited to leave the State voluntarily and informed that failure to do so within 14 days may result in a recommendation being made to the Minister that a deportation order should be made in respect of him or her.
Temporary leave to remain
22. The above procedures offer to applicants who do not come within the definition of "refugee" contained in section 2 of the Refugee Act, 1996, sufficient opportunities to make submissions to the Minister as to whether there are special reasons why leave should be granted to them to remain temporarily in the State. A decision in any such case remains at the absolute discretion of the Minister.
Co-operation with the UNHCR
23. The UNHCR representative will be notified of the making of each application. The UNHCR representative may attend any interview or hearing in connection with the above proceedings, and may have access to the papers relating to any particular case at any stage during the processing of an application. Where the UNHCR representative considers it appropriate, he or she may make unsolicited representations relating to any case or group of cases; such representations will be taken into account in arriving at a decision.
24. The Department undertakes to operate these procedures in a spirit of co-operation with the UNHCR with a view to ensuring that no person deserving of protection in the State is refused it.