Ireland’s Legal Obligations Regarding Asylum and Immigration
The purpose of this information note is:
1) To ask those in support of international protection to consider what is your number and by this we mean: is there any cap you would put on international protection applicants, or would you really burden Ireland with accepting uncapped numbers of migrants? and
2) To review the immigration laws currently in place in Ireland; while also answering the question “What are our obligations regarding those seeking international protection are under EU law” – which will then allow us to consider the potential counter arguments that may be advanced to politicians, media etc when they say we are obliged to accept an uncapped number of persons seeking protection under international law.
1) Is there any cap you would put on international protection applicants?
To fully consider this point, you must consider the following information:
- The last Statistical Report prepared by the International Protection Office confirms that in the year from January 2022 to November 2022, there were a total of 12,453 applications for international protection in Ireland – this was up from only 2,649 applications in 2021, these figures represent a 5-fold increase and historic high in asylum applications in Ireland.
- These types of figures have not been seen in Ireland since 2003 – when public unrest led to the 2004 referendum which closed a constitutional loop-hole which granted citizenship by birth – after this referendum the number of persons arriving in Ireland feel dramatically.
- In response to a parliamentary question from Fianna Fáil TD Joe Flaherty, the escalating cost to the Irish taxpayer of providing emergency accommodation in hotels, pubs, and B&Bs has become clearer. The monthly cost rose from €22 million in May to €36 million in October. The overall cost for that six-month period was €166 million, or over €300 million if extrapolated to a full year. That is in addition to the budget of €225 million which had already been set for the running of direct provision centres. While it is difficult to get full disclosure on the true cost to the Irish taxpayer, it would appear that in 2022, the cost of international protection alone (excluding accommodating Ukrainians) was well over half a billion euro.
- These are the numbers and costs that apply to Ireland, but to those who would accept uncapped numbers of international protection applicants, we must also look to the EU figures, because according to the European Council of the European Union “asylum seekers travel around Europe and apply for asylum in the countries where they believe they will have a higher chance of receiving international protection.” – this means that the greater number of applications that Ireland is prepared to process, the more applicants Ireland will receive.
- In the EU in November 2022 alone, there were 107,223 applications for international protection.
- According to the European Union Agency for Asylum, this was the third consecutive month where the EU had received approximately 100,000 applications per month.
- These numbers are in addition to Ukrainians seeking protection, which is said to cost in excess of €1b in Ireland in 2023 alone.
- Let us say that approximately 13,000 applicants for international protection would cost the Irish tax payer approximately €500m per year, if Ireland were willing to accept a cap of 100,000 applications per year, the cost to the Irish taxpayer would be €3,846,153,846.15 – noting that this equates to a cost of €38,000 per year for accommodation and meals alone – noting that this figure does not include medical costs, legal costs, education costs etc. It should, however, be noted that some reports suggest that the cost of accommodating an asylum seeker per year is approximately €26,000 (or €70.00 per night), however, this figure does not appear to marry with the overall costs per year that have been discussed in Dail committees or parliamentary questions.
- In circumstances where people are literally dying on trolleys and living on the streets, questions need to be asked about how much worse the Irish situation will become if we continue to accept uncapped numbers of international protection applicants.
2) Immigration laws currently in place in Ireland (including but not limited to):
- The Treaty of Amsterdam 1997;
- The Dublin III Regulation 2013;
- The International Protection Act 2015; and
- A new Pack on Migration and Asylum proposed by the European Commission in September 2020.
2.1 Treaty of Amsterdam
In general, the law of the European Union applies to all 27 member states. However, occasionally member states negotiate certain opt-outs from legislation or treaties of the European Union, meaning they do not have to participate in certain policy areas regardless of what laws the EU may put in place across the EU. Currently, only three member states have such opt-outs:
- Poland (1)
Ireland has an opt-out from EU legislation adopted in the area of freedom, security and justice. This allows Ireland to opt in or out of legislation and legislative initiatives on a case-by-case basis in these three specific areas.
The Treaty on the Functioning of the European Union at Articles 67-89 confirms that freedom, justice and security include the following policy areas:
- Rules concerning external borders;
- Immigration policies and policies concerning third countries’ citizens;
- Combating illicit drugs;
- International fraud;
- Judicial co-operation in civil matters;
- Judicial co-operation in criminal matters;
- Customs co-operation; and
- Police co-operation for preventing and fighting terrorism, drugs trade etc.
What this means is that Ireland is not bound by EU law in the areas of immigration or asylum, but where the EU makes a legislative proposal in these areas, Ireland has three months to decide whether they wish to opt into discussions. If they do not opt-in, they are deemed to have opted-out, and discussions simply go ahead without them. Any legislation which is adopted then binds the other Member States – but not Ireland.
So if a politician tells you that Ireland must accept uncapped numbers of persons seeking protection under international law – your answer should be:-
“Is it not the case that Ireland originally obtained an opt-out in the areas of freedom, security and justice (which includes immigration and asylum) policy under the Treaty of Amsterdam in 1997, with this opt-out being retained by Ireland with the passing of the Treaty of Lisbon in 2008. Considering I know this to be the case, are you saying that Irish politicians opted into immigration and asylum laws without having any international obligation to do so, and if this is the case, is your argument around commitments to international law not disingenuous?”
2.2 Dublin III Regulations
On 15 June 1990, the Dublin Convention was signed – this Convention determines the EU Member State responsible for examining an application for international protection.
The current Dublin III Regulation applies to what are called the “Dublin countries” under this Regulation, which include all the countries in the EU, plus Iceland, Switzerland, Norway and Liechtenstein.
Broadly speaking, all three Dublin Regulations are based on the same principles – that the first Member State where fingerprints are stored or an asylum claim lodged is responsible for a person’s asylum claim.
The provisions of the Dublin III Regulation are far more favourable to countries like Ireland than most other EU countries, as given our geographical location, it is quite likely that a person will have made an application for international protection in another Dublin country (as defined above), before journeying to Ireland.
As part of an application for international protection, the International Protection Office (“IPO”) is entitled to take the applicants photograph and fingerprints and check this information against data held by Eurodac. Eurodac is an EU database that stores the fingerprints of international protection applicants, or people who have crossed a border illegally.
If the IPO have reason to believe that another country should be responsible for an applicant’s application for international protection, it should use the Dublin procedures to determine which country is responsible.
The IPO is not meant to examine the details of any application for international protection until it has made a decision using the Dublin III Regulations. Under this regulation, there are several reasons why Ireland might be entitled to transfer an applicant back to another Dublin country, such as:
- The applicant’s husband or wife, or dependent children have international protection, or are asylum seekers in another Dublin country; or
- The applicant has (or previously had) a visa or residence permit in another Dublin country; or
- The applicants’ fingerprints were taken in another Dublin country; or
- There is evidence that the applicant was in another Dublin country, even if their fingerprints were not taken.
So if a politician says Ireland must accept uncapped numbers of persons seeking protection under international law – your answer should be:
“Is it not the case that under the Dublin III Regulation, the International Protection Office should be taking fingerprints from all international protection applicants and checking these against Eurodac to determine whether that application should be determined by another member state – thereby potentially allowing Ireland to legally transfer a large number of applicants back to another Dublin country? Considering Irelands geographical location, I would expect that a large number of those seeking international protection in Ireland are inadmissible applications under the Dublin III Regulations. Can you tell me if Ireland is fully utilising the Dublin III Regulations? If yes, can you tell me the percentage of applicants being transferred to another Dublin country; and if Ireland is not fully utilising the Dublin III Regulations, it is disingenuous to suggest that we must accept an uncapped number of migrants under international law, considering policy makers appear to be selectively choosing which international laws to adhere to”.
2.3 International Protection Act 2015
The International Protection Act 2015 is Ireland’s key piece of law enshrining the State’s obligations regarding claims for asylum.
Under the International Protection Act, persons coming to Ireland can claim international protection in three ways.
- By claiming refugee status;
- By claiming subsidiary protection status; or
- By securing a permission to remain from the Minister for Justice (permission to remain is available to applicants on humanitarian grounds, where they have failed both the refugee and subsidiary protection procedures).
Persons can apply for international protection in Ireland for two separate reasons:
- Where they have a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’, and they cannot seek the protection of their own country. This is called refugee status.
- Where they cannot return to their own country because they are at risk of serious harm, but where they do not qualify as a refugee. This is called subsidiary protection.
The International Protection Act at Section 21 sets the circumstances under which an application for international protection is inadmissible and this includes:
- Where another Member State has granted refugee status or subsidiary protection status to the person;
- Where a country other than a Member State is a first country of asylum for the person; or
- Where the person arrived in the State from a safe third country, that is a safe country for the person.
After the substantive asylum interview, a so-called draft “s.39” report is compiled by the International Protection Office. The finalised s.39 report contains a recommendation as to whether or not the applicant should be granted refugee status or subsidiary protection. Where a person is found ineligible for refugee status or subsidiary protection, the decision-maker also considers whether or not there are humanitarian grounds to recommend a grant of permission to remain.
So it is clear from the International Protection Act 2015, that an application for asylum should be declared inadmissible:
- If the applicant was already granted international protection in another member state; or
- Where the application should be examined by another member state under the Dublin III Regulations; or
- In circumstances where the applicant has arrived in Ireland from a safe country of origin.
The last update to the list of safe countries was enacted through Statutory Instrument 121 of 2018, whereby the Minister for Justice designated the following countries as safe countries of origin with effect from 16 April 2018.
- Bosnia and Herzegovina,
- Macedonia (Former Yugoslav Republic of),
- Serbia and
- South Africa.
That said, a person can still apply for international protection if they are from a safe country of origin, if they can submit serious grounds that the country is not safe in terms of their circumstances.
The last Statistical Report prepared by the International Protection Office regarding the top nationalities who are applying for international protection in Ireland, confirms that in the year from 1 January 2022 to 20 November 2022, there were a total of 12,453 applications for international protection representing a 467.9% increase on the figure for the same period in 2021.
The highest percentage of applicants are arriving in Ireland from Georgia at over 20%. That said, it is quite likely given the geographical location of the other top nationalities, that the majority of these applicants landed in another EU member state before Ireland, and if this is the case, this should trigger the transfer of that applicant back to the other EU member state under the Dublin III Regulations.
So, if a politician says Ireland must accept uncapped numbers of persons seeking protection under international law – your answer should be: –
“According to statistics prepared by the International Protection Office, over 20% of applicants applying for international protection in Ireland are coming from Georgia, noting that Georgia was declared a safe country of origin through statutory instrument 121 of 2018. This would suggest that at least 20% of applicants should immediately be deemed inadmissible under the International Protection Act 2015. Furthermore, given that a further 40% of applicants are coming from countries such as Algeria, Somalia, Nigeria and Zimbabwe, it is fair to suggest that a majority of these applicants landed in another EU member state before Ireland, and should this not therefore trigger the transfer of that applicant back to the other EU member state under the Dublin III Regulations?
2.4 New Pact that has been proposed by the European Commission in September 2020 regarding migration and asylum
In this communication from the Commission to the European Parliament and others, the Commission states that “the New Pact recognises that no Member State should shoulder a disproportionate responsibility and that all Member States should contribute to solidarity on a constant basis”.
This communication goes on to state that: –
“Drawing on the experience of the negotiations on the 2016 proposals to reform the Common European Asylum System, it is clear that an approach that goes beyond the limitations of the current Dublin Regulation is required. Rules for determining the Member State responsible for an asylum claim should be part of a common framework, and offer smarter and more flexible tools to help Member States facing the greatest challenges..”
“This new common framework will set out the principles and structures needed for an integrated approach for migration and asylum policy, which ensures a fair sharing of responsibility and addresses effectively mixed arrivals of persons in need of international protection and those who are not. This includes a new solidarity mechanism to embed fairness into the EU asylum system, reflecting the different challenges created by different geographical locations, and ensuring that all contribute through solidarity so that the real needs created by the irregular arrivals of migrants and asylum seekers are not handled by individual Member States alone, but by the EU as a whole….”
The proposed wording for this new regulation was also published in September 2020. Part IV of this proposed regulation details the solidarity measures that Ireland may be obliged to comply with should Ireland opt-in to this regulation (as stated previously Ireland has an opt-out on any laws which the EU wishes to enact in the areas of freedom, security and justice, which includes immigration and asylum).
This proposed regulation states the following: –
“In order to provide a timely response to the specific situation following disembarkations from search and rescue operations, the Commission, with the assistance of Union Agencies, should facilitate the swift relocation of eligible applicants for international protection who are not in the border procedure. Under the coordination of the Commission, the European Union Asylum Agency and the European Border and Coast Guard Agency should draw up the list of eligible persons to be relocated indicating the distribution of those persons among the contributing Member States…
Persons disembarked should be distributed in a proportionate manner among the Member States….
The overall contribution of each Member State to the solidarity pool should be determined through indications by Member States of the measures by which they wish to contribute. Where Member States contributions are insufficient to provide for a sustainable solidarity response the Commission should be empowered to adopt an implementing act setting out the total number of third-country nationals to be covered by relocation and the share of this number for each Member State calculated according to a distribution key based on the population and the GDP of each Member State….”
What this regulation is saying is that, in times of migration pressure or in general in relation to those who are accessing the EU arising from search and rescue operations (so those accessing the EU by boat) – the Dublin III Regulation (which currently allows Ireland to transfer applicants back to the first Member State where their fingerprints were stored or asylum claim lodged) would no longer apply and instead, Ireland would be obliged to accept relocation of whatever number the European Commission considers to be Ireland fair share of third country nationals according to our population and GDP.
As stated earlier, given the geographical location of Ireland and the countries those seeking international protection are travelling from – the Dublin III Regulations benefit Ireland more than most other EU member states; so any attempt to enforce new “solidarity measures” on Ireland which would amend the Dublin III Regulations must be strenuously resisted. Also, as stated several times in this video, Ireland has an opt-out in the areas of freedom, security and justice, meaning that even if this regulation is passed by the European Parliament, the Oireachtas would still have to agree to opt in to this new regulation – which, would undoubtedly be to Irelands detriment.
1) Under the Treaty of Amsterdam, Ireland has an opt-out from EU legislation adopted in the areas of freedom, security and justice (which includes immigration and asylum). This means that Ireland is not bound by EU law in the areas of immigration or asylum, unless Ireland voluntarily decides to opt into these laws. Where Ireland does not voluntarily decide to opt-in to these laws, any legislation which is adopted in any of these areas binds the other Member States – but not Ireland. Effectively this means two things. A) Ireland has no EU obligations regarding immigration and asylum unless the Oireachtas voluntarily decides to opt Ireland into such laws; and B) Irelands membership of the European Union is not threatened if it fails to adopt EU law in the areas of immigration and asylum given that Irelands right to opt out in these areas is legally binding upon the European Union.
2) Under the Dublin III Regulations, the European Union, Iceland, Switzerland, Norway and Liechtenstein have all agreed that asylum applications are to be processed by the country in which an asylum claim is first lodged, or where fingerprints are first stored. The provisions of the Dublin III Regulation are far more favourable to countries like Ireland than most other EU countries, as given our geographical location, it is quite likely that a person will have made an application for international protection in one of the countries mentioned, before journeying to Ireland – and where this is the case, Ireland is entitled to transfer an asylum applicant back to that country for processing.
3) Under the International Protection Act 2015, an application for international protection is inadmissible where A) another Member State has granted refugee status or subsidiary protection status to the person; B) a country other than a Member State is a first country of asylum for the person; or C) the person arrived in the State from a safe third country, that is a safe country for the person. With regard to persons arriving in Ireland from safe countries, we know that at least 20% of applicants are coming to Ireland from Georgia, noting that Georgia has been declared a safe country of origin under regulation 121 of 2018. In addition, it is quite likely given the geographical location of the other top nationalities arriving in Ireland, that the majority of these applicants landed in another EU member state before Ireland, and this should therefore trigger the transfer of that applicant back to the other EU member state under the Dublin III Regulations.
So, when a politician says Ireland must accept uncapped numbers of persons seeking protection under international law, please be sure that you are armed with the information in this information note such that you can respond from both a legal and financial perspective.