STATUTORY INSTRUMENTS.

S.I. No. 343 of 2000.

DUBLIN CONVENTION (IMPLEMENTATION) ORDER, 2000.

S.I. No. 343 of 2000.

DUBLIN CONVENTION (IMPLEMENTATION) ORDER, 2000.

I, JOHN O'DONOGHUE, T.D., Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by section 22 of the Refugee Act, 1996 ( No. 17 of 1996 ) (as amended by section 11(1)(p) of S.I. No. 298 of 1997 )) do hereby order as follows:

Title, Commencement, repeal and transition.

1. (1) This Order may be cited as the Dublin Convention (Implementation) Order, 2000.

(2) This Order shall come into operation on 20 November 2000.

(3) The Dublin Convention (Implementation) Order, 1997 ( S.I. No. 360 of 1997 ) is hereby revoked.

(4) Any determination, communication or decision, save for a final determination, made and in force immediately before the commencement of this Order under the Dublin Convention (Implementation) Order, 1997 ( S.I. No. 360 of 1997 ), shall continue in force as if made under this Order.

Interpretation.

2. (1) In this Order, unless the context otherwise requires--

“the Act” means the Refugee Act, 1996 (No. 17 of 1996) as amended by section 11 of the Immigration Act, 1999 ( No. 22 of 1999 );

“applicant” means a person (other than a national of a Member State of the European Union) who has made an application;

“application” means an application for asylum (within the meaning of section 22(10) of the Act);

“residence permit” means any authorisation issued by the State or a convention country permitting a person who is not a national of a Member State of the European Union to stay in its territory, but does not include--

(a) a temporary residence certificate given to a person pursuant to section 9(3) of the Act, or

(b) any similar authorisation given to a person by a convention country permitting the person to reside in that country until the final determination of his or her application for asylum.

(2) In this Order--

(a) a reference to an Article or a Schedule is a reference to an Article or a Schedule of this Order unless it is indicated that reference to some other Order is intended.

(b) a reference to a paragraph or subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

Determination under the Dublin Convention.

3. (1) Where an application is made under section 8 of the Act, the Commissioner shall determine whether the application--

(a) should in accordance with the provisions of Article 3(7) of the Dublin Convention be transferred to a convention country for examination,

(b) should in accordance with the provisions of Article 10(1)(d) of the Dublin Convention be transferred to a convention country for examination,

(c) should in accordance with the criteria set out in Articles 4 to 8 of the Dublin Convention (applied in the order in which they appear therein) be transferred to a convention country for examination, or

(d) should, in accordance with the criteria aforesaid or otherwise, be examined in the State.

(2) Where the Commissioner determines that the application should be examined in the State as aforesaid, he or she shall, as soon as may be, cause notice in writing of the determination to be given to the applicant concerned.

(3) Where, before or during an interview under section 8 of the Act, it appears to an immigration officer or authorised officer that the application may be one which could be transferred under the Dublin Convention to another convention country under paragraph (1), he or she shall send a notice to that effect to the applicant, where possible in a language that the applicant understands, and the notice shall be in the form set out in the First Schedule.

(4) An applicant who has been duly notified in accordance with paragraph (3) may, not more than 5 working days from the date of the sending of the notice, make representations in writing to the Commissioner and the Commissioner shall, before making a determination under this Article, take into consideration all relevant matters known to him or her, including any representations duly made by or on behalf of the applicant under this paragraph.

Inquiries made and information recorded by the Commissioner.

4. (1) The Commissioner may make or cause to be made such inquiries and, by notice in writing, request such information in relation to matters specified in the notice as is necessary or expedient for the purpose of making a determination under Article 3 in respect of an application.

(2)  (a) Where, following the making of an inquiry or a request under paragraph (1), a convention country communicates information to the Commissiner, such information may be used only for the purpose of--

(i) making a determination under Article 3 or a decision under Article 5,

(ii) examining an application, the subject of the request for information, or

(iii) implementing any obligation arising under the Dublin Convention.

(b) Subject to subparagraph (c), information obtained under subparagraph (a) may be communicated by the Commissioner only to the Minister, the Tribunal or any person, including a tribunal or court in the State, entrusted with--

(i) determining whether the application concerned should be examined in the State or be transferred to a convention country for examination,

(ii) examining the application concerned, or

(iii) implementing any obligation arising under the Dublin Convention.

(c) An applicant shall, on request therefor, be supplied with a copy of any information communicated to the Commissioner under subparagraph (a) relating to his or her application.

(d) The Commissioner shall keep a record of any information communicated to him or her under subparagraph (a) in relation to the applicant.

(3)   (a)  Where information recorded pursuant to paragraph (2)(d) is incomplete, inaccurate or misleading or should not have been disclosed by a convention country, the Commissioner shall, on request to him or her in that behalf, in writing, by the applicant to whom the information relates or by the convention country which communicated the information pursuant to paragraph (2)(a), amend the information so recorded--

(i) by altering it so as to render the information complete or correct or not misleading, as may be appropriate,

(ii) by adding to the information so recorded a statement specifying the respects in which the Commissioner is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate, or

(iii) by deleting the information so recorded.

(b)  A request under subparagraph (a) shall, in so far as is practicable, specify the amendment or deletion required and include appropriate information in support of the request.

(c)  Where a request is made under subparagraph (a)--

(i) the Commissioner shall accede to the request if he or she is satisfied that the information concerned falls within the said subparagraph (a), and

(ii) as soon as may be, but not later than 10 working days after the receipt by the Commissioner of the request, he or she shall decide whether to accede to or refuse to accede to the request and shall cause notice in writing of his or her decision to be given to the applicant concerned.

(d)  Where information recorded pursuant to paragraph (2)(d) is amended pursuant to this paragraph, the Commissioner shall cause notice in writing of the amendment to be given to the convention country concerned as soon as may be after the date on which the amendment was effected.

Request to re-admit an applicant prior to a determination by the Commissioner under the Dublin Convention.

5. (1) If, before the making of a determination under Article 3 in relation to an application, the applicant concerned--

(a) leaves the State,

(b) withdraws his or her application,

(c) enters a convention country, and

(d) lodges an application in that country,

then, if the State receives a request from the convention country to re-admit the applicant to the State, the Commissioner shall determine whether to accede to the request and shall respond to such request within 8 days of its receipt.

(2) The Commissioner may refuse to accede to a request referred to in paragraph (i) if--

(a) the applicant concerned has, at the time of the receipt of the request, been in a place other than the State or a convention country for a period of not less than 3 months, or

(b) a convention country has issued to the applicant concerned a residence permit which is valid for a period of not less than 3 months.

(3) The Commissioner shall not accede to a request under paragraph (1) without the prior consent of the Minister which shall not be unreasonably withheld.

(4) An applicant re-admitted to the State under this Article shall be deemed not to have withdrawn his or her application and the application shall be dealt with accordingly.

Notice of intention to transfer applicant to another convention country subject to any appeal.

6. (1) Where the Commissioner makes a determination under Article 3 that an applicant should be transferred to a convention country, he or she shall, as soon as may be--

(a) cause notice in writing of the determination and of the reasons for it to be given to the applicant, and

(b) where the country has not already indicated its willingness to admit the applicant to its territory, request the country to admit the applicant to its territory.

(2) A notice under subparagraph (1)(a) shall include a statement that the applicant concerned may appeal to the Tribunal under Article 7 against the determination aforesaid not more than 5 working days from the date of the determination, and shall be in the form set out in the Second Schedule to this Order.

(3) An applicant concerned shall not be transferred to a convention country--

(a) before the expiry of 5 working days from the date of the making of such a determination as aforesaid, or

(b) where notice of appeal against the determination is given, before the appeal is finally determined or withdrawn.

(4) A request under paragraph (1)(b) shall be supported by the following--

(a) a statement indicating the reason for the request and specifying the relevant provision of the Dublin Convention on which the request is based,

(b) a description of the applicant concerned together with any information which could help to establish his or her identity and nationality, and

(c) subject to Article 13, any other information which the Commissioner considers appropriate to enable the convention country concerned to ascertain whether it is responsible for examining the application pursuant to the criteria set out in Articles 4 to 8 of the Dublin Convention.

(5) A request under paragraph (1)(b) shall be in writing and shall be made not later than 6 months after the making of the relevant application.

Appeals.

7. (1) An applicant may appeal to the Tribunal against a determination of the Commissioner that he or she should be transferred to a convention country and, if he or she does so, the Tribunal shall, unless the appeal is withdrawn, make a decision in writing in relation to the appeal affirming or setting aside the determination and shall cause notice in writing of the decision to be given to the applicant, the Commissioner and the Minister.

(2) An appeal under this Article shall be initiated by the applicant concerned giving, not more than 5 working days from the date on which the determination concerned was made, a notice of appeal in writing to the Tribunal, in the form set out in the Third Schedule to this Order, and the notice shall be accompanied by a statement of all the facts and contentions on which the applicant relies in the appeal.

(3) The Tribunal shall furnish the Commissioner with a copy of the notice received by it under paragraph (2).

(4) The Commissioner, following receipt of the copy of the notice under paragraph (3), shall provide the Tribunal with copies of any documents, reports, or representations in writing submitted to him or her under Articles 3 or 4 in relation to the application concerned and shall provide an indication of the nature and source of any other information relating to the application which has come to the notice of the Commissioner in the course of the making of a determination by him or her under Article 3.

(5) The Tribunal may direct the Commissioner to make such inquiries and to furnish the Tribunal with such further information as it considers necessary or expedient for the purpose of deciding an appeal under this Article.

(6) An applicant concerned may withdraw an appeal by sending notice of withdrawal to the Tribunal.

(7) An appeal under this section shall be decided by the Tribunal in accordance with the criteria set out in Articles 4 to 8 of the Dublin Convention (in the order in which they occur therein).

(8) Where the Tribunal sets aside the determination of the Commissioner, it shall, as soon as may be, cause notice in writing of the decision to be given to the applicant concerned and to the Commissioner and the application shall be examined in the State.

(9) Where the Tribunal affirms the determination of the Commissioner, the Tribunal shall notify the Minister of its decision and the reasons therefor.

(10) Where no appeal is made within the period specified in paragraph (2) or where the applicant concerned withdraws his or her appeal, the Commissioner shall notify the Minister of his or her determination and the reasons therefor.

(11) On receipt of a notification under paragraph (9) or (10), the Minister shall inform the applicant, where necessary and possible in a language that the applicant understands, of the determination or decision and the reasons therefor and the Minister shall arrange for the removal of the applicant to the convention country concerned.

Notification of accession by convention country to transfer request.

8. (1) Where a convention country--

(a) refuses a request under Article 6(1)(b), or

(b) fails to respond to such a request within 3 months of its receipt by the convention country,

the relevant application shall be examined in the State.

(2) Where, before the removal of an applicant to a convention country under this Article, it appears to the Minister that the applicant does not have an appropriate travel document in his or her possession, the Minister shall issue to the applicant a laissez-passer.

Consideration of request from convention country to accept application.

9. (1) If the State receives a request from a convention country to accept for examination in the State an application lodged in that country either--

(a) on the basis of the criteria set out in Articles 4 to 8 of the Dublin Convention, or

(b) for humanitarian reasons based, in particular, on family or cultural grounds,

the Commissioner shall consider the request and determine whether the State should accede to such request.

(2) In determining whether the State should accede to a request referred to in paragraph (1)(a), the Commissioner shall apply the criteria set out in Articles 4 to 8 of the Dublin Convention in the order in which they appear therein and may, in his or her discretion, refuse to accede to a request made after the expiration of 6 months from the date of the lodgment of the application concerned in the convention country concerned.

(3) The Commissioner shall not accede to a request under paragraph (1) without the prior consent of the Minister, which shall not be unreasonably withheld.

(4) The Commissioner shall not accede to a request under paragraph (1)(b) without the prior consent of the applicant the subject of the request.

(5) Subject to paragraph (3), where the Commissioner determines that the State should accede to any such request he or she shall cause notice in writing of the determination to be given to the convention country concerned, as soon as may be, but not later than three months after the date of the receipt of the request.

(6) Where the applicant is admitted to the State under this Article, his or her application shall be investigated under section 11 of the Act.

(7) Where the Commissioner considers that the State should not accede to such a request, he or she shall cause notice in writing of the decision and of the reasons for it to be given to the convention country concerned as soon as may be thereafter but not later than 3 months from the date of the receipt of the request.

(8) The Minister may refuse to admit the applicant concerned to the State--

(a) after the expiration of 1 month from the date of the sending of a notice under paragraph (5) relating to the applicant, or

(b) after the expiration of 1 month from the determination of any appeal proceedings initiated by the applicant in the convention country concerned against a decision to transfer his or her application to the State for examination,

whichever is the later.

Application lodged in a convention country by a person who is in the State.

10. Where--

(a) an application for asylum has been lodged in a convention country by a person who is in the State at the time of the making of the application, and

(b) the convention country notifies the State of the receipt of the application,

then, if the person remains in the State following the receipt by the State of the relevant notification referred to in paragraph (b), the application shall be deemed to be an application made in the State and shall be dealt with accordingly and Article 3 shall apply to the application.

Request to re-admit an applicant.

11. (1) If, in the course of the investigation of an application under section 11 of the Act, the applicant concerned leaves the State and goes to and remains in a convention country without lawful authority, then, if the State receives a request from the convention country to re-admit the applicant to the State, the Commissioner shall reply to the request within 8 days of such receipt and, if he or she accedes to the request shall notify the Minister, for the purposes of obtaining his or her consent (which shall not be unreasonably withheld), to re-admit the applicant to the State within one month of the receipt of the request, for the purpose of the completion of the investigation of the application.

(2) If, in the course of the investigation of an application under section 11 of the Act, the applicant concerned--

(a) leaves the State,

(b) withdraws the application lodged by him or her in the State,

(c) enters a convention country, and

(d) lodges an application for asylum in that country,

then, if the State receives a request from the convention country to re-admit the applicant to the State, the Commissioner shall reply to the request within 8 days of such receipt and, if he or she accedes to the request, shall notify the Minister for the purpose of obtaining his or her consent (which shall not be unreasonably withheld) to re-admit the applicant to the State for the purpose of the completion of the investigation of the application.

(3) If, following the refusal of an application under section 17 of the Act, the applicant concerned leaves the State and enters a convention country without the permission of that country, then, if the State receives a request from the convention country to re-admit the applicant to the State, the Commissioner shall reply to the request within 8 days of such receipt and, if he or she accedes to the request, shall notify the Minister, for the purpose of obtaining his or her consent (which shall not be unreasonably withheld) to readmit the applicant as soon as may be.

(4) The Commissioner may--

(a) refuse to accede to a request referred to in paragraph (1), (2) or (3) if the convention country concerned has issued to the applicant concerned a residence permit which is valid for a period of not less than 3 months, or

(b) refuse to accede to a request referred to in paragraph (1) or (2) if the applicant concerned has, at the time of the receipt of such a request, been outside the State, or a convention country, for a period of not less than 3 months.

(5) The Commissioner may refuse to accede to a request referred to in paragraph (2) or (3) if, following the withdrawal or the refusal, as the case may be, of the application concerned, the State has removed the applicant concerned from the State and arranged for him or her to be conveyed to his or her country of origin or to another country (other than a convention country).

Application of Article 3 of this Order to certain cases.

12. (1) Where, in the course of the investigation under section 11 of the Act of an application made not more than 6 months previously, it appears that--

(a) in accordance with the criteria set out in Articles 4 to 8 of the Dublin Convention, the application should be examined in a convention country, or

(b) the applicant concerned had previously lodged an application in a convention country and had withdrawn the application--

(i) before the convention country had ascertained whether it was responsible for examining the application pursuant to criteria set out in Articles 4 to 8 of the Dublin Convention, or

(ii) where the convention country had accepted such responsibility, before the conclusion of the examination of the application,

then the application shall be deemed to be an application to which Article 3 applies and shall be dealt with accordingly.

(2) Paragraph (1) shall not apply where the Commissioner has determined that, notwithstanding the fact the application could, in accordance with paragraph (a), (b) or (c) of Article 3, be transferred to a convention country for examination, the application should be examined in the State pursuant to paragraph (d) of that Article.

Communication of information to a convention country.

13. (1) The Minister, the Commissioner and the Tribunal shall, whenever so requested by a convention country, furnish to the country such information in relation to an application as they may have in their possession or control:

Provided that the request is accompanied by a statement indicating that the information is necessary for the purpose of:--

(a) determining the convention country responsible for examining the application,

(b) examining the application, or

(c) implementing an obligation arising under the Dublin Convention.

(2) Information furnished pursuant to a request under paragraph (1) shall relate only to--

(a) the personal details of the applicant concerned and, where appropriate, details of his or her family,

(b) the identity and travel papers issued to or in the possession of the applicant,

(c) such other information as may be necessary for establishing the identity of the applicant concerned including his or her fingerprints taken in accordance with section 9A of the Act,

(d) the places of residence and routes travelled by the applicant,

(e) any residence permits or visas issued to or in the possession of the applicant concerned by a convention country or the State,

(f) the date on which and the place at which the application was lodged,

(g) the date on which a previous application (if any) was lodged,

(h) the grounds on which the application was based,

(i) an indication of the stage reached in the examination of the application and any decision made concerning the application,

(j) the reasons for any decision made concerning the applicant.

(3) Information furnished pursuant to a request under paragraph (1) shall be communicated to an authority that has been designated by the convention country under Article 15 of the Dublin Convention and then only if the designation has been communicated to the Committee referred to in Article 18 of the Dublin Convention.

(4) Information specified in subparagraphs (h) and (j) of paragraph (2) shall not be furnished to a convention country without the prior consent in writing of the applicant concerned.

(5) The Commissioner shall keep a record of any information furnished pursuant to a request under paragraph (1).

(6) An applicant shall, on request therefor, be supplied with a copy of any information furnished pursuant to a request under paragraph (1).

(7) (a)  Where information recorded pursuant to paragraph (5) is incomplete, inaccurate or misleading or should not have been disclosed to a convention country, the Commissioner shall, on request to him or her in that behalf, in writing, by the applicant to whom the information relates or by the convention country, amend the information so recorded--

(i) by altering it so as to render the information complete or correct or not misleading, as may be appropriate,

(ii) by adding to the information so recorded a statement specifying the respects in which the Commissioner is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate, or

(iii) by deleting the information so recorded.

(b)  A request under subparagraph (a) shall, in so far as is practicable, specify the amendment or deletion required and include appropriate information in support of the application.

(c)  Where a request is made under subparagraph (a)--

(i) the Commissioner shall accede to the request if he or she is satisfied that the information concerned falls within the said subparagraph (a), and

(ii) as soon as may be, but not later than 10 working days after the receipt by the Commissioner of the request, the Commissioner shall decide whether to accede to or refuse to accede to the request and shall cause notice in writing of his or her decision to be given to the applicant concerned or the convention country concerned as the case may be.

(d)  Where information recorded pursuant to paragraph (5) is amended pursuant to this paragraph, the Commissioner shall cause notice in writing of the amendment to be given to the convention country concerned as soon as may be after the date on which the amendment was effected.

(8) The Data Protection Commissioner shall monitor the processing and use of any date (within the meaning of the Data Protection Act, 1988 (No. 25 of 1988) ) exchanged between the State and a convention country pursuant to the provisions of the Dublin Convention.

Information provided to the Commissioner.

14. Where the Commissioner, for the purpose of investigating or determining an application, by notice in writing, requests a person referred to in section 11 (4) of the Act to make such inquiries and to furnish him or her with information in relation to such matters as he or she specifies in the notice, the provisions of Article 4 shall apply, with any necessary modifications, to any information communicated to the person by a convention country as they apply to information communicated to the Commissioner under that Article.

Notices, etc.

15. (1) All notices, representations in writing or documents required or authorised by these regulations to be sent or given to the Commissioner shall be deemed to have been duly sent or given if sent by registered post and directed to the Refugee Applications Commissioner (Dublin Convention), Dublin.

(2) All notices, representations in writing or documents required or authorised by these regulations to be sent or given to the Tribunal shall be deemed to have been duly sent or given if sent by registered post and directed to the Chairperson, Refugee Appeals Tribunal, Dublin.

(3) Where a notice is required or authorised by or under this Order to be served on or given to a person, it shall be addressed to him or her and shall be served on or given to him or her in some one of the following ways:

(a) where it is addressed to him or her by name, by delivering it to him or her, or

(b) by sending it by post in a prepaid registered letter, or by any other form of recorded delivery service prescribed by the Minister, addressed to him or her at the address most recently furnished by him or her to the Refugee Applications Commissioner in the case of his or her legal representative, if any, at his or her business address, or in a case in which an address for service has been furnished, at that address.

(4) Where a notice under this Order has been sent to a person in accordance with subparagraph (3)(b), the notice shall be deemed to have been duly served on or given to the person on the third day after the day on which it was so sent.

FIRST SCHEDULE

Notice to applicant of possible transfer under Dublin Convention

To: (name of applicant)

It appears to me that your application for asylum may be one which could be transferred under the Dublin Convention to another Dublin Convention country for consideration. I must inform you that the information gathered in this interview may be used by the Refugee Applications Commissioner in deciding whether or not your application should be transferred.

You may make written representations about a possible decision to transfer your application. If you wish to make written representations you must do so within 5 working days from now by writing to--

Refugee Applications Commissioner (Dublin Convention)

(insert address)

Any representations made within that time will be taken into account by the Commissioner in deciding whether your application will be transferred. If a decision to transfer your application is made you will be given an opportunity to appeal within 5 working days after the decision.

Signed: (signature, name and rank of immigration officer/authorised officer)

Date:

SECOND SCHEDULE

Notice of determination to transfer application to another convention country

To: (name and last known address of applicant)

Re: Dublin Convention

Transfer of asylum application to another convention country

I am to inform you that the Refugee Applications Commissioner has determined that your application for refugee status is one which should properly be examined by [name of convention country] in line with the provisions of Article [appropriate Article(s) of the Dublin Convention]

Following is/are the reason(s) for this determination: [insert reasons]

* The appropriate authorities in [name of convention country] have agreed to your return under the Dublin Convention for the purpose of examining your asylum application.

* The appropriate authorities in [name of convention country] have been requested to take you back for the purpose of examining your asylum application.

You may appeal this decision within 5 working days of the date of this notice. If you wish to appeal, you must do so by completing the attached notice of appeal. The notice of appeal should set out all of the facts and contentions on which you rely for the purposes of your appeal. Your appeal should be sent by registered post to the Refugees Appeals Tribunal, (insert address) or delivered to a person who is apparently an employee of the Tribunal Office, at the Offices of the Tribunal during normal office hours and a receipt of delivery obtained. Where you give notice of appeal within 5 working days of this notice, your application will not be transferred to [name of convention country], and you will not be returned there, until your appeal is finally determined or is withdrawn by you.

In the event that you do not submit an appeal within 5 days of this notice, the Refugee Applications Commissioner will inform the Minister for Justice, Equality and Law Reform of his/her* determination in your case and the Minister will in turn contact you further regarding arrangements for your return.

Signed:

Rank of Officer:

Date:

THIRD SCHEDULE

Refugee Appeals Tribunal

NOTICE OF APPEAL

Against a recommendation of the Refugee Applications Commissioner made under Article 3(1)(c) of Dublin Convention (Implementation) Order 2000.

1.       Personal details:

1.1     Name:

1.2     Address:

1.3     Nationality:

1.4     Your temporary residence certificate number:

2.       Legal Representation:

2.1     Do you have legal representation? YES NO (delete as appropriate)

2.2     Name of your legal representative:

2.3     His or her address:

2.4     His or her telephone number:

3.       Grounds of appeal:

Please state clearly and concisely all the facts and contentions on which you rely in making your appeal. You may use additional or separate pages.

Ground 1: _________________________________________________________________________________

Ground 2: _________________________________________________________________________________

Ground 3: _________________________________________________________________________________

etc.

4.       Communications to the Tribunal:

All communications to the Tribunal should be sent by registered post and addressed to the Chairperson, Refugee Appeal Tribunal (insert address).

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

This Order gives effect to the State's obligations as a party to the Dublin Convention. Among other things, it puts in place procedures for the Refugee Applications Commissioner to determine whether an application for asylum should in accordance with the terms of the Dublin Convention be dealt with in the State or in another convention country. It repeals and replaces the Dublin Convention (Implementation) Order, 1997.

* Delete as appropriate.

* Delete as appropriate.

* Delete as appropriate.