PART 17 – Amendment of the Immigration Act 2004–
The purpose of this head is to amend section 11 (Requirements as to documents of identity and supply of information) of the Immigration Act 2004.
Section 11 of the 2004 Act was substituted by section 34(a) of the Civil Law (Miscellaneous Provisions) Act 2011.
Section 11(5) of the 2004 Act contains the following definition of “non-national”, which applies for the purposes of sections 11 and 12 (Requirements as to production of documents) of the 2004 Act:
“(5) In this section and section 12, ‘non-national’ means a person who is neither—
- in Irish citizen, nor
- a person who has established a right to enter and be present in the State under the European Communities (Aliens) Regulations 1977 (S.I. No. 393 of 1977 ), the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997 (S.I. No. 57 of 1997) or the European Communities (Free Movement of Persons) Regulations 2006 and ”
The main purpose of the proposed amendment is to ensure that, following the end of the transition period, UK citizens do not come within the definition of “non-national” that applies to sections 11 and 12 of the Immigration Act 2004.
The proposed amendment will ensure that the legal basis is maintained for the exclusion of UK citizens from passport checks within the Common Travel Area after the expiry of the Brexit transition period.
It is also proposed to take the opportunity to update the reference in section 11(5) to the European Communities (Free Movement of Persons) Regulations. The European Communities (Free Movement of Persons) Regulations 2006 and 2008 comprise the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006) and the European Communities (Free Movement of Persons) (Amendment) Regulations 2008 (S.I. No. 310 of 2008).
The 2006 Regulations were revoked by Regulation 32 of the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015).
PART 18 – Amendment of the International Protection Act 2015
Minister for Justice and Equality
Head 18.1 to amend section 21 of International Protection Act 2015
This Head is based on draft Regulations under the European Communities Act, 1972 (draft stamped copy of the European Communities (International Protection Procedures) Regulations 2019) which it is now proposed to provide for by way of primary legislation in conjunction with Heads 18-2 and 18- 3.
Head 18-1 amends section 21 of the International Protection 2015 Act (‘Inadmissible application’) by adding –
- a paragraph (c) to deem an application for international protection inadmissible where a person has arrived in the State from a country designated as a safe third country and that country is safe for the person concerned, in line with Article 25 of the Procedures Directive 2005/85/EC;
- a subsection (17) to set out the matters which will determine that the country is a safe country for the person;
- a subsection (18) to provide for a non-exhaustive list of matters to which regard will be had when considering whether the person has a sufficient connection to the safe third country concerned within the meaning of new head 21(17)(a).
Head 18.2 To insert a new section 51A into International Protection Act 2015
This Head inserts a new section into the 2015 Act to provide for the making of a return order in respect of persons whose applications are considered as inadmissible on the basis that they have come from a country designated as a safe third country or another country that is considered a first country of asylum for the person. An immigration officer or member of the Garda Siochána may arrest without warrant and detain a person for the purpose of facilitating the person’s return. In this regard, the head mirrors Regulation 10(2) to 10(11) of the European Union (Dublin System) Regulations (S.I. no. 62/2018).
Section 21(2) of the 2015 Act as currently stands deems an application for international protection inadmissible where one or more of the situations set out in paragraphs a or b of that provision apply. Since there is the potential for the circumstances set out in paragraph a, b and new paragraph c to apply simultaneously, the proposed return order mechanism extends to all three paragraphs. This can be considered further at the drafting stage, however.
It is envisaged that provision may need to be made for measures comparable to the transfer and appeal provisions set out in Regulation 10(1) of the 2018 Regulations.
Head 18.3 to insert a new section 72A into International Protection Act 2015
This Head is also based on draft Regulations under the European Communities Act, 1972 (draft stamped copy of the European Communities (International Protection Procedures) Regulations 2019) which it is now proposed to provide for by way of primary legislation in conjunction with Heads 18-1 and 18-2.
Head 18-3 inserts a new section to enable the Minister to designate a country as a safe third country only where satisfied that certain safeguards are in place, including that the principle of non- refoulement in accordance with the Geneva Convention is respected in the return country.
The Minister shall inform the European Commission of the making of a designation under this head.
Head 18-3 accords with Article 27 of Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status.