17 1996

Next (FIRST SCHEDULE)

No. 17/1996:

REFUGEE ACT, 1996


AN ACT TO GIVE EFFECT TO THE CONVENTION RELATING TO THE STATUS OF REFUGEES DONE AT GENEVA ON THE 28TH DAY OF JULY, 1951, THE PROTOCOL RELATING TO THE STATUS OF REFUGEES DONE AT NEW YORK ON THE 31ST DAY OF JANUARY, 1967, AND THE CONVENTION DETERMINING THE STATE RESPONSIBLE FOR EXAMINING APPLICATIONS FOR ASYLUM LODGED IN ONE OF THE MEMBER STATES OF THE EUROPEAN COMMUNITIES DONE AT DUBLIN ON THE 15TH DAY OF JUNE, 1990, TO PROVIDE FOR THE APPOINTMENT OF A PERSON TO BE KNOWN AS THE REFUGEE APPLICATIONS COMMISSIONER AND THE ESTABLISHMENT OF A BOARD TO BE KNOWN AS THE REFUGEE APPEAL BOARD AND TO PROVIDE FOR MATTERS RELATED TO THE MATTERS AFORESAID.

[26th June, 1996]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Interpretation.

1. —(1) In this Act, unless the context otherwise requires—

"the Appeal Board" means the Refugee Appeal Board established by section 15;

"applicant" means a person who has made an application for a declaration under section 8;

"authorised officer" means a person authorised in writing by. the Commissioner to exercise the powers conferred on an authorised officer by or under this Act;

"the Commissioner" shall be construed in accordance with section 6;

"convention country" means a country other than the State for the time being standing designated in an order under section 22 (6);

"declaration" shall be construed in accordance with section 17,

"the Dublin Convention" means the Convention determining the state responsible for examining applications for asylum lodged in one of the Member States of the European Communities done at Dublin on the 15th day of June, 1990 (the text of which, in the English language, is, for convenience of reference, set out in the Fourth Schedule to this Act);

"the establishment day" means the day appointed by the Minister under section 14;

"the High Commissioner" means the United Nations High Commissioner for Refugees and includes the Representative for Ireland of the High Commissioner;

"the Geneva Convention" means the Convention relating to the Status of Refugees done at Geneva on the 28th day of July, 1951, and includes the Protocol relating to the Status of Refugees done at New York on the 31st day of January, 1967 (the text of which, in the English language, is, for convenience of reference, set out in the Third Schedule to this Act);

"immigration officer" means an immigration officer appointed under the Aliens Order, 1946 ( S. R. & O. No. 395 of 1946 );

"information" means information in the form of a document (including a thing) or in any other form;

"membership of a particular social group" includes membership of a trade union and also includes membership of a group of persons whose defining characteristic is their belonging to the female or the male sex or having a particular sexual orientation;

"the Minister" means the Minister for Justice;

"prescribed" means prescribed by regulations made by the Minister.

(2) In this Act—

( a ) a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or extended by or under any subsequent enactment including this Act,

( b ) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other enactment is intended,

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

"Refugee".

2. —In this Act "a refugee" means a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it, but does not include a person who—

( a ) is receiving from organs or agencies of the United Nations (other than the High Commissioner) protection or assistance,

( b ) is recognised by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country,

( c ) has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes,

( d ) has committed a serious non-political crime outside the State prior to his or her arrival in the State, or

( e ) has been guilty of acts contrary to the purposes and principles of the United Nations.

Extension to refugees of certain rights.

3. —(1) Subject to section 17(2), a refugee in relation to whom a declaration is in force shall be entitled to the same rights and privileges as those conferred by law on persons generally who are not Irish citizens (as distinct from such rights or privileges conferred on any particular person or group of such persons).

( 2 ) ( a ) Without prejudice to the generality of subsection (1), a refugee in relation to whom a declaration is in force—

(i) shall be entitled to seek and enter employment, to carry on any business, trade or profession and to have access to education and training in the State in the like manner and to the like extent in all respects as an Irish citizen,

(ii) shall be entitled to receive, upon and subject to the terms and conditions applicable to Irish citizens, the same medical care and services and the same social welfare benefits as those to which Irish citizens are entitled,

(iii) shall be entitled, subject to section 4(2)—

(I) to reside in the State, and

(II) to the same rights of travel in or to or from the State as those to which Irish citizens are entitled,

(iv) shall have the same freedom to practise his or her religion and the same freedom as regards the religious education of his or her child as an Irish citizen,

(v) shall have access to the courts in the like manner and to the like extent in all respects as an Irish citizen, and

(vi) shall have the right to form and be a member of associations and trade unions in the like manner and to the like extent in all respects as an Irish citizen.

( b ) In paragraph (a) "social welfare benefits" includes any payment or services provided for in or under the Social Welfare Acts, the Health Acts, 1947 to 1994, and the Housing Acts, 1966 to 1992.

( c ) Without prejudice to the generality of subsection (1) or section 3 of the Aliens Act, 1935 , and notwithstanding anything contained in section 45 of the Land Act, 1965 , section 16 of the Mercantile Marine Act, 1955 , or an order under the Air Navigation and Transport Act, 1946 , a refugee in relation to whom a declaration is in force shall be entitled to acquire, hold, dispose or otherwise deal with real or personal property or an interest in such property in the like manner, to the like extent and subject to the like obligations and limitations as an Irish citizen.

Travel document.

4. —(1) Subject to subsection (2), the Minister shall, on application in writing in that behalf and on payment to the Minister of such fee (if any) as may be prescribed with the consent of the Minister for Finance, issue to a refugee in relation to whom a declaration is in force a travel document identifying the holder thereof as a person to whom a declaration has been given.

(2) The Minister may, in the interest of national security or public policy ("ordre public"), refuse to issue a travel document.

(3) A travel document shall be in such form as may be prescribed or in a form to the like effect.

(4) A person who applies to the Minister for a travel document under this section shall furnish to the Minister such information (if any) as the Minister may reasonably require for the purpose of his or her functions under this section.

Prohibition of refoulement.

5. —(1) A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

(2) Without prejudice to the generality of subsection (1), a person's freedom shall be regarded as being threatened if, inter alia, in the opinion of the Minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature).

Refugee Applications Commissioner.

6. —(1) ( a ) For the purposes of this Act, there shall be a person (referred to in this Act as "the Commissioner") who shall be known as the Refugee Applications Commissioner.

( b ) The Commissioner shall perform the functions conferred on him or her by this Act.

(2) The Commissioner shall be independent in the exercise of his or her functions under this Act.

(3) The provisions of the First Schedule shall have effect in relation to the Commissioner.

Annual report and information to Minister.

7. —(1) The Commissioner shall, not later than 3 months after the end of each year, submit a report in writing to the Minister of his or her activities during that year and, not later than 1 month after such submission, the Minister shall cause a copy of the report to be laid ,before each House of the Oireachtas.

(2) The Commissioner shall furnish to the Minister such information relating to his or her activities as the Minister may from time to time require.

Application for declaration.

8. —(1) ( a ) A person who arrives at the frontiers of the State seeking asylum in the State or seeking the protection of the State against persecution or requesting not to be returned or removed to a particular country or otherwise indicating an unwillingness to leave the State for fear of persecution—

(i) shall be interviewed by an immigration officer as soon as practicable after such arrival, and

(ii) may apply to the Minister for a declaration.

( b ) The immigration officer concerned shall inform a person referred to in paragraph (a), where possible in a language that the person understands, that he or she may apply under that paragraph for a declaration and that he or she is entitled to consult a solicitor and the High Commissioner.

( c ) A person who at any time is in the State (whether lawfully or unlawfully) and is seeking the status of a refugee in the State may apply to the Minister for a declaration and, if he or she does so, shall, as soon as practicable, be required by notice in writing to attend for interview with an immigration officer at such time and place as the Minister may specify in the notice and the notice shall state that the person is entitled to consult a solicitor and the High Commissioner.

(2) An interview under subsection (1) shall, where necessary and possible, be conducted with the assistance of an interpreter and a record of the interview shall be kept by the immigration officer conducting the interview and a copy thereof shall be furnished to the person concerned, the High Commissioner and the Commissioner.

(3) Subject to the provisions of sections 9 and 22, the Minister shall cause an application for a declaration to be referred to the Commissioner and a notification thereof to be given to the High Commissioner.

(4) An application under subsection (1) shall be made in writing in the prescribed form or in a form to the like effect.

( 5 ) ( a ) Where it appears to an immigration officer that a child under the age of 18 years who has arrived at the frontiers of the State is not in the custody of any person, the immigration officer shall, as soon as practicable, so inform the health board in whose functional area the place of arrival is situate and thereupon the provisions of the Child Care Act, 1991 , shall apply in relation to the child.

( b ) Where it appears to the health board concerned, on the basis of information available to it, that an application for a declaration should be made by or on behalf of a child referred to in paragraph (a), the health board shall arrange for the appointment of an officer of the health board or such other person as it may determine to make an application on behalf of the child.

( c ) Any costs incurred by a person under paragraph (b) other than any legal costs arising from such application shall be paid by the health board concerned.

( d ) The functions of a health board under paragraph (b) shall be functions of the chief executive officer of the board or a person acting as deputy chief executive officer of the board in accordance with section 13 of the Health Act, 1970 .

(6) For the purposes of this Act, a person who travels by sea or air from outside the State and lands in the State shall be deemed to arrive at the frontiers of the State.

Leave to enter or remain in State.

9. —(1) Subject to the subsequent provisions of this section, an applicant, being a person referred to in section 8(1)(a), shall be given leave to enter the State by the immigration officer concerned.

(2) Subject to the subsequent provisions of this section, a person to whom leave to enter the State is given under subsection (1) or an applicant, being a person referred to in section 8(1)(c), shall be entitled to remain in the State until—

( a ) the date on which his or her application is transferred to a convention country pursuant to section 22, or

( b ) the date on which his or her application is withdrawn or deemed to be withdrawn pursuant to subsection (14)(b), or

( c ) the date on which notice is sent that the Minister has refused to give him or her a declaration.

(3) The Minister shall give or cause to be given to a person referred to in subsection (2) a temporary residence certificate (in this section referred to as "a certificate") stating the name and containing a photograph of the person concerned, specifying the date on which the person's application for a declaration was referred to the Commissioner and stating that, subject to the provisions of this Act, and, without prejudice to any other permission or leave granted to the person concerned to remain in the State, the person referred to in the certificate shall not be removed from the State before the final determination of his or her application.

(4) An applicant shall not—

( a ) leave or attempt to leave the State without the consent of the Minister, or

( b ) seek or enter employment or carry on any business, trade or profession during the period before the final determination of his or her application for a declaration.

(5) An immigration officer may, by notice in writing, require an applicant—

( a ) to reside or remain in particular districts or places in the State, or

( b ) to report at specified intervals to an immigration officer or member of the Garda Síochána specified in the notice,

and the applicant concerned shall comply with the requirement.

(6) Upon application to the Minister in that behalf by the applicant concerned, the Minister may, as he or she thinks fit, direct the immigration officer concerned to withdraw the requirement concerned or to amend it in a specified manner.

(7) A person who contravenes subsection (4) or (5) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 1 month or to both.

(8) Where an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects that an applicant—

( a ) poses a threat to national security or public order in the State,

( b ) has committed a serious non-political crime outside the State,

( c ) has not made reasonable efforts to establish his or her true identity,

( d ) intends to avoid removal from the State in the event of his or her application for asylum being transferred to a convention country pursuant to section 22,

( e ) intends to leave the State and enter another state without lawful authority, or

( f ) without reasonable cause has destroyed his or her identity or travel documents or is in possession of forged identity documents,

he or she may detain the person in a prescribed place (referred to subsequently in this Act as "a place of detention").

(9) The Minister shall make regulations providing for the treatment of persons detained pursuant to this section.

( 10 ) ( a ) A person detained pursuant to subsection (8) shall, as soon as practicable, be brought before a judge of the District Court assigned to the District Court district in which the person is being detained.

( b ) Where a person is brought before a judge of the District Court pursuant to paragraph (a), the judge may—

(i) subject to paragraph (c), and if satisfied that one or more of the paragraphs of subsection (8) applies in relation to the person, commit the person concerned to a place of detention for a period not exceeding 10 days from the time of his or her detention, or

(ii) without prejudice to paragraph (c), release the person and the judge may make such release subject to such conditions as he or she considers appropriate, including, but without prejudice to the generality of the foregoing, any one or more of the following conditions:

(I) that the person resides or remains in a particular district or place in the State,

(II) that he or she reports to a specified Garda Síochána station or immigration officer at specified intervals,

(III) that he or she surrenders any passport or travel document in his or her possession.

( c ) If, at any time during the detention of a person pursuant to this section, an immigration officer or a member of the Garda Síochána is of opinion that none of the paragraphs of subsection (8) applies in relation to the person, he or she shall, as. soon as practicable, he brought before a judge of the District Court assigned to the District Court district where the person is being detained and if the judge is satisfied that none of the paragraphs of subsection (8) applies in relation to the person, the judge shall release the person.

( d ) Where a person is released from a place of detention subject to one or more of the conditions referred to in subsection (10)(b)(ii), a judge of the District Court assigned to the District Court district in which the person resides may, on the application of the person, an immigration officer or a member of the Garda Síochána, if he or she considers it appropriate to do so, vary (whether by the alteration, addition or revocation of a condition) a condition.

(11) Subsections (4), (5), (8) and (10) shall apply only to an applicant who, but for the provisions of this Act, would not be entitled to enter or remain in the State.

( 12 ) ( a ) Subsection (8) shall not apply to a person who is under the age of 18 years.

( b ) If and for so long as the immigration officer or, as the case may be, the member of the Garda Síochána concerned has reasonable grounds for believing that the person is not under the age of 18 years, the provisions of subsection (8) shall apply as if he or she had attained the age of 18 years.

( c ) Where an unmarried child under the age of 18 years is in the custody of any person (whether a parent or a person acting in loco parentis or any other person) and such person is detained pursuant to the provisions of this section, the immigration officer or the member of the Garda Síochána concerned shall, without delay, notify the health board for the area in which the person is being detained of the detention and of the circumstances thereof.

( 13 ) ( a ) A member of the Garda Síochána may detain a person who, in the member's opinion, has failed to comply with a condition imposed by the District Court under subsection (10) in a place of detention.

( b ) A person detained under paragraph (a) shall be brought as soon as practicable before a judge of the District Court assigned to the District Court district in which the person is being detained; and subsection (10) shall apply to such person detained under paragraph (a) as it applies to a person detained pursuant to subsection (8) with any necessary modifications.

( c ) If a judge of the District Court is satisfied in relation to a person brought before him or her pursuant to paragraph (b) that the person has complied with the condition concerned, the judge shall order the release of the person.

( 14 ) ( a ) Where a judge of the District Court commits a person to a place of detention under subsection (10) (b) or (13) (b), a judge of the District Court assigned to the District Court district in which the person is being detained may, if satisfied that one or more of the paragraphs of subsection (8) applies in relation to the person, commit him or her for further periods (each period being a period not exceeding 10 days) pending the determination of the person's application under section 8.

( b ) If at any time during the detention of a person pursuant to this section the person indicates a desire to leave the State, he or she shall, as soon as practicable, be brought before a judge of the District Court assigned to the District Court district in which the person is being detained and the judge shall, if he or she is satisfied that the person does not wish to proceed with his or her application for a declaration and wishes to leave the State, order the Minister to arrange for the removal of the person from the State and may include in the order such ancillary or consequential provisions as he or she may determine and the person concerned shall be deemed to have withdrawn his or her application for a declaration.

(15) A person referred to in subsection (1) shall not be given leave to enter the State under that subsection if—

( a ) the person is the subject of an order under section 5 (1) of the Aliens Act, 1935 , relating to particular aliens in force for the time being, prohibiting him or her from landing or entering into the State, and

( b ) the order aforesaid is made, and is expressed to be made, because the Minister considers it necessary in the interest of national security or public policy ("ordre public").

(16) Where, pursuant to subsection (15), a person is not given leave to enter the State he or she shall not be entitled to make an application for a declaration without the consent of the Minister.

Provisions relating to detained persons.

10. —(1) The immigration officer or, as the case may be, the member of the Garda Síochána concerned shall, without delay, inform a person detained pursuant to subsection (8) or (13) (a) of section 9 or cause him or her to be informed, where possible in a language that the person understands—

( a ) that he or she is being detained pursuant to section 9,

( b ) that he or she shall, as soon as practicable, be brought before a court which shall determine whether or not he or she should be committed to a place of detention or released pending consideration of that person's application for a declaration under section 8,

( c ) that he or she is entitled to consult a solicitor,

( d ) that he or she is entitled to have notification of his or her detention, the place of detention concerned and every change of such place sent to the High Commissioner and to another person reasonably named by him or her,

( e ) that he or she is entitled to leave the State in accordance with the provisions of this paragraph at any time during the period of his or her detention and if he or she indicates a desire to do so, he or she shall, as soon as practicable, be brought before a court and the court may make such orders as may be necessary for his or her removal from the State, and

( f ) that he or she is entitled to the assistance of an interpreter for the purpose of consultation with a solicitor pursuant to paragraph (c) and for the purpose of any appearance before a court pursuant to section 9.

(2) The immigration officer or, as the case may be, the member of the Garda Síochána concerned shall also explain to a person detained pursuant to subsection (8) or (13) (a) of section 9, where possible in a language that the person understands, that, if he or she does not wish to exercise a right specified in subsection (1) immediately, he or she will not be precluded thereby from doing so later.

(3) The immigration officer or, as the case may be, the member of the Garda Síochána concerned shall notify the Commissioner and the Appeal Board of the detention or release of a person pursuant to the provisions of section 9.

(4) The Commissioner or, as the case may be, the Appeal Board shall ensure that the application for a declaration of a person detained pursuant to subsection (8) or (13) (a) of section 9 shall be dealt with as soon as may be and, if necessary, before any other application for a declaration of a person not so detained.

Investigation of application by Commissioner.

11. —(1) Subject to section 12, where an application is referred to the Commissioner under section 8, 16, 22 or otherwise by the Minister and unless the application is withdrawn or deemed to be withdrawn pursuant to the provisions of section 9 or 22, as the case may be, it shall be the function of the Commissioner to investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration should be given.

(2) In a case to which subsection (1) or section 12 (2) applies, the Commissioner shall, for the purposes of that provision, direct an authorised officer or officers to interview the applicant concerned and the officer or officers shall comply with any such direction and furnish a report in writing in relation to the application concerned to the Commissioner and the report shall refer to the matters raised by the applicant and to such other matters as the officer or officers consider appropriate and an interview under this subsection shall, where necessary and possible, be conducted with the assistance of an interpreter.

(3) The applicant concerned, the High Commissioner or any other person concerned may make representations in writing to the Commissioner in relation to any matter relevant to an investigation by him or her under this section and the Commissioner shall take account of any such representations.

( 4 ) ( a ) The Commissioner may, for the purposes of his or her functions under this Act, by notice in writing, request the Minister, the Minister for Foreign Affairs or such other persons as may be specified in the notice to make such inquiries and to furnish to him or her such information in his or her possession or control as he or she may reasonably require within such period as shall be specified in the notice.

( b ) Following the receipt of a request under subsection (1), the Minister or the Minister for Foreign Affairs, as the case may be, may withhold any information in his or her possession or control in the interest of national security or public policy ("ordre public").

(5) Nothing in the Data Protection Act, 1988 , shall be construed as prohibiting a person from giving to the Commissioner, on request by him or her, such information as is in the person's possession or control relating to the application.

(6) Subject to subsection (7), the Commissioner shall furnish the applicant concerned with copies of any reports, documents or representations in writing submitted to the Commissioner under this section and an indication in writing 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 an investigation by him or her under this section.

(7) Where information has been supplied to the Commissioner, a Department of State or another branch or office of the public service by or on behalf of the government of another state in accordance with an undertaking (express or implied) that the information would be kept confidential, the information shall not, without the consent of the other state, be produced or further disclosed otherwise than in accordance with the undertaking.

(8) Where an application is referred to the Commissioner under section 8, 16 or 22 or otherwise by the Minister, the Commissioner shall, without delay, give or cause to be given to the applicant a statement in writing specifying, where possible in a language that he or she understands—

( a ) the procedures to be observed in the investigation of applications under this section,

( b ) the entitlement of the applicant to consult a solicitor,

( c ) the entitlement of the applicant to contact the High Commissioner,

( d ) the entitlement of the applicant to make written submissions to the Commissioner,

( e ) the duty of the applicant to co-operate with the Commissioner and to furnish information relevant to his or her application, and

( f ) the obligation of the applicant to notify the Commissioner of his or her address in the State.

Manifestly unfounded application.

12. —(1) Where, at any time following the receipt of an application referred to the Commissioner under section 8 or 22, the Commissioner is of opinion that the application is manifestly unfounded, he or she shall, as soon as may be, notify the applicant concerned in writing of his or her opinion (including the reasons for it) and of the applicant's entitlement to request an interview with an authorised officer by sending a notice in writing to the last known address of the applicant and shall at the same time send a copy thereof to the applicant's solicitor (if known).

(2) Where a notice has been sent under subsection (1), the applicant concerned may, within 14 days of the sending of the notice, make representations in writing to the Commissioner and the Commissioner shall, before making a recommendation on the matter to the Minister, take into consideration any representations duly made to him or her under this subsection and shall, if so requested by the applicant, direct an authorised officer or officers to interview the applicant in accordance with section 11 (2).

(3) Where, following consideration by the Commissioner of any representations made under subsection (2) or any report furnished under section 11 (2), the Commissioner remains of the opinion that the application concerned is manifestly unfounded, he or she may make a recommendation that the applicant concerned should not be declared to be a refugee and shall send a copy of the recommendation and of the reasons for it to—

( a ) the Minister,

( b ) the applicant,

( c ) the High Commissioner, and

( d ) the Appeal Board.

(4) In this section "a manifestly unfounded application" means an application—

( a ) which does not show on its face any grounds for the contention that the applicant is a refugee,

( b ) in relation to which the applicant gave clearly insufficient details or evidence to substantiate his or her application,

( c ) in relation to which the Commissioner is satisfied that 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 ) in relation to which the applicant did not reveal following the making of an application under section 8 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 ) in relation to which the applicant, without reasonable cause, made deliberately false or misleading representations of a material or substantial nature in relation to his or her application,

( f ) in relation to which the applicant, without reasonable cause and in bad faith, destroyed identity documents, withheld relevant information or otherwise deliberately obstructed the investigation of his or her application,

( g ) in relation to which the applicant deliberately failed to reveal that he or she had lodged a prior application for asylum in another country,

( h ) in relation to which the applicant submitted the application for the sole purpose of avoiding removal from the State,

( i ) prior to which the applicant had made an application for a declaration or an application for recognition as a refugee in a state party to the Geneva Convention, and the Commissioner is satisfied that his or her application was properly considered and rejected and the applicant has failed to show a material change of circumstances,

( j ) by an applicant who 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 ) by an applicant who, after making the application has, without reasonable cause, left the State without leave or permission or has not replied to communications addressed to the person from the Commissioner, or

( l ) prior to which the applicant has 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.

(5) The Commissioner shall, when sending a copy of the recommendation to the applicant under subsection (3), at the same time send to the applicant a notice in writing stating that the applicant may appeal to the Appeal Board under section 16 against the recommendation and may request an oral hearing within 14 days from the sending of the notice.

Recommendations and reports of Commissioners.

13. —(1) Where the Commissioner carries out an investigation under section 11, he or she shall, subject to section 12, as soon as may be, prepare a report in writing of the results of the investigation and such a report shall set out the findings of the Commissioner together with his or her recommendation whether the applicant concerned should or, as the case may be, should not be declared to be a refugee, and shall furnish the report to the Minister.

( 2 ) ( a ) The Commissioner shall, when furnishing a report under subsection (1) to the Minister, send a copy thereof to the applicant concerned, to his or her solicitor (if known), and to the High Commissioner.

( b ) Where a report under subsection (1) includes a recommendation that the applicant should not be declared to be a refugee, the Commissioner shall furnish a copy thereof to the Appeal Board and shall at the same time send to the applicant a notice in writing stating that the applicant may appeal to the Appeal Board under section 16 against the recommendation and may request an oral hearing within 21 days from the sending of the notice.

Establishment day.

14. —The Minister may by order appoint a day to be the establishment day for the purposes of this Act.

Refugee Appeal Board.

15. —(1) On the establishment day there shall stand established a Board, to be known as the Refugee Appeal Board (in this Act referred to as "the Appeal Board") to consider and decide appeals under section 16 of this Act.

(2) The Appeal Board shall be independent in the exercise of its functions under this Act.

(3) The provisions of the Second Schedule shall have effect in relation to the Appeal Board.

Appeals to Appeal Board.

16. —(1) An applicant may appeal in the prescribed manner to the Appeal Board against a recommendation of the Commissioner under section 12 or 13.

(2) The Appeal Board may—

( a ) affirm a recommendation of the Commissioner under section 13, or

( b ) set aside a recommendation of the Commissioner under section 13 and recommend that the applicant should be declared to be a refugee, or

( c ) affirm a recommendation of the Commissioner under section 12, or

( d ) set aside a recommendation of the Commissioner under section 12 and remit the application for a declaration to the Commissioner to carry out an investigation under section 11.

(3) An appeal under this section shall be brought by notice in writing within the period specified in section 12 (5) or 13 (2) (b), as may be appropriate, and the notice shall specify the grounds of appeal and shall indicate whether the applicant wishes the Appeal Board to hold an oral hearing for the purpose of his or her appeal.

(4) The Appeal Board shall transmit a copy of the notice received by it under subsection (3) to the Minister, the Commissioner and the High Commissioner.

(5) The Commissioner shall furnish the Appeal Board with copies of any reports, documents or representations in writing submitted to the Commissioner under section 11 or 12 and an indication in writing 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 an investigation by him or her.

(6) The Appeal Board may, for the purposes of its functions under this Act, request the Commissioner to make such further inquiries and to furnish the Appeal Board with such further information as the Appeal Board considers necessary within such period as may be specified by the Appeal Board.

(7) The Commissioner shall furnish the Appeal Board with observations in writing concerning any matter arising on the grounds of appeal whenever so requested by the Appeal Board and a copy of such observations shall be furnished to the applicant concerned and his or her solicitor (if known).

(8) The Appeal Board shall furnish the applicant concerned and his or her solicitor (if known) with copies of any reports, observations, or representations in writing or any other document, furnished to the Appeal Board by the Commissioner copies of which have not been previously furnished to the applicant pursuant to section 11 (6) and an indication in writing of the nature and source of any other information relating to the appeal which has come to the notice of the Appeal Board in the course of an appeal under this section.

(9) An applicant may withdraw an appeal to the Appeal Board by sending notice of withdrawal to the Appeal Board.

(10) The Appeal Board shall, where appropriate, following a notice under subsection (3), hold an oral hearing for the purpose of an appeal under this section.

( 11 ) ( a ) For the purposes of an oral hearing (if any) under this section, the Appeal Board may—

(i) direct in writing any person whose evidence is required by the Appeal Board to attend before the Appeal Board on a date and at a time and place specified in the direction and there to give evidence and to produce any document or thing in his or her possession or control specified in the direction,

(ii) direct any such person to produce any specified document or thing in his or her possession or control, or

(iii) give any other directions for the purpose of an appeal that appear to the Appeal Board reasonable and just.

( b ) Subparagraphs (i) and (ii) of paragraph (a) shall not apply to a document or thing relating to information as respects which the Minister or the Minister for Foreign Affairs, as the case may be, directs (which he or she is hereby empowered to do) that the information be withheld in the interest of national security or public policy ("ordre public").

( c ) The Appeal Board shall enable the applicant and the Commissioner or an authorised officer to be present at the hearing and present their case to the Appeal Board in person or through a legal representative or other person.

( d ) The Appeal Board shall, where necessary, use its utmost endeavours to procure the attendance of an interpreter to assist at the hearing.

(12) Subject to subsection (13), a witness whose evidence has been or is to be given before the Appeal Board shall be entitled to the same privileges and immunities as a witness in a court.

(13) Where information has been supplied to the Commissioner, a Department of State or another branch or office of the public service by or on behalf of the government of another state in accordance with an undertaking (express or implied) that the information would be kept confidential, the information shall not, without the consent of the other state, be produced or further disclosed otherwise than in accordance with the undertaking.

(14) An oral hearing under this section shall be held in private.

(15) Notwithstanding subsection (14), the High Commissioner may be present at an oral hearing under this section for the purpose of observing the proceedings.

(16) Before deciding an appeal under this section, the Appeal Board shall consider the following:

( a ) the relevant notice under subsection (3),

( b ) the recommendation of the Commissioner under section 12, or, as may be appropriate, the report of the Commissioner under section 13,

( c ) any observations made to the Appeal Board by the Commissioner or the High Commissioner,

( d ) the evidence adduced and any representations made at an oral hearing, if any, and

( e ) any documents, representations in writing or other information furnished to the Commissioner pursuant to section 11.

(17) A decision of the Appeal Board under subsection (2) and the reasons therefor shall be communicated by the Appeal Board to the applicant concerned, his or her solicitor (if known), the Commissioner, the Minister and the High Commissioner.

Declaration that person is refugee.

17. —(1) Subject to the subsequent provisions of this section, where a report under section 13 is furnished to the Minister or where the Appeal Board sets aside a recommendation of the Commissioner under section 16, the Minister—

( a ) shall, in case the report or, as the case may be, the decision of the Appeal Board includes a recommendation that the applicant concerned should be declared to be a refugee, give to the applicant a statement in writing (in this Act referred to as "a declaration") declaring that the applicant is a refugee, and

( b ) may, in any other case, refuse to give the applicant a declaration,

and he or she shall notify the High Commissioner of the giving of or, as the case may be, the refusal to give the applicant a declaration.

( 2 ) ( a ) If the Minister considers that in the interest of national security or public policy ("ordre public") it is necessary to do so, he or she may by order—

(i) provide that sections 3, 9 and 18 shall not apply to a person specified in the order, being a person to whom a declaration has been given, and

(ii) require the person to leave the State and the order shall specify the measures to be taken for the purpose of the removal of the person from the State including where necessary the temporary detention or restraint of the person.

( b ) A person with respect to whom an order under paragraph (a) (ii) is made shall not be required to leave the State before the expiry of 30 days from the date of the making of the order.

( c ) Where the Minister has made an order under the said paragraph (a) (ii) in respect of a person, he or she shall send a copy of the order to the person, the High Commissioner and the applicant's solicitor (if known).

(3) For the purposes of this Act, a person who, before the commencement of this Act, was recognised by the Minister as a refugee within the meaning of the Geneva Convention shall be deemed to be a person in respect of whom a declaration has been given under this section.

(4) The Minister shall not give a declaration to a refugee who has been recognised as a refugee under the Geneva Convention by a state other than the State and who has been granted asylum in that state and whose reason for leaving or not returning to that state and for seeking a declaration in the State does not relate to a fear of persecution in that state.

(5) Where the Minister has decided to refuse to give a declaration, he or she shall send to the applicant a notice in writing stating that—

( a ) his or her application for a declaration has been refused,

( b ) the period of entitlement of the applicant to remain in the State under section 9 has expired, and

( c ) the Minister may make an order requiring the applicant to leave the State,

and a copy of the notice shall be sent to the High Commissioner and to the applicant's solicitor (if known).

(6) The Minister may, at his or her discretion, grant permission in writing to a person who has withdrawn his or her application or to whom the Minister has refused to give a declaration to remain in the State for such period and subject to such conditions as the Minister may specify in writing.

(7) A person to whom the Minister has refused to give a declaration may not make a further application for a declaration under this Act without the consent of the Minister.

( 8 ) ( a ) Subject to section 5 and paragraphs (b), (c) and (d), the Minister shall make an order (in this Act referred to as, a deportation order") requiring a person to whom the Minister has refused to give a declaration or a person who has withdrawn his or her application to leave the State and the order shall specify the measures to be taken for the purpose of the removal of the person from the State including where necessary the temporary detention or restraint of the person.

( b ) A person with respect to whom a deportation order is made shall not be required to leave the State before the expiry of 30 days from the date of the making of the order.

( c ) Paragraph (a) shall apply only to a person who, but for the provisions of section 9, would not be entitled to enter or remain in the State.

( d ) The Minister shall not make an order under paragraph (a) in respect of a person who has been granted permission to remain in the State under subsection (6) while that permission is in force.

(9) The Minister may by order amend or revoke an order under this section including an order under this subsection.

Member of family of refugee.

18. —(1) Subject to section 17(2), a refugee in relation to whom a declaration is in force may apply to the Minister for permission to be granted to a member of his or her family to enter and to reside in the State and the Minister shall cause such an application to be referred to the Commissioner and a notification thereof to be given to the High Commissioner.

(2) Where an application is referred to the Commissioner under subsection (1), it shall be the function of the Commissioner to investigate the application and to ' submit a report in writing to the Minister and such report shall set out the relationship between the refugee concerned and the person the subject of the application and the domestic circumstances of the person.

( 3 ) ( a ) Subject to subsection (5), if, after consideration of a report of the Commissioner submitted to the Minister under subsection (2), the Minister is satisfied that the person the subject of the application is a member of the family of the refugee, the Minister shall grant permission in writing to the person to enter and reside in the State and the person shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State.

( b ) In paragraph (a), "member of the family", in relation to a refugee, means—

(i) in case the refugee is married, his or her spouse (provided that the marriage is subsisting on the date of the refugee's application pursuant to subsection (1)),

(ii) in case the refugee is, on the date of his or her application pursuant to subsection (1), under the age of 18 years and is not married, his or her parents, or

(iii) a child of the refugee who, on the date of the refugee's application pursuant to subsection (1), is under the age of 18 years and is not married.

( 4 ) ( a ) The Minister may, at his or her discretion, grant permission to a dependent member of the family of a refugee to enter and reside in the State and such member shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State.

( b ) In paragraph (a), "dependent member of the family", in relation to a refugee, means any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully.

(5) The Minister may refuse to grant permission to enter and reside in the State to a person referred to in subsection (3) or (4) or revoke any permission granted to such a person in the interest of national security or public policy ("ordre public").

(6) The Minister may, on application in writing in that behalf and on payment to the Minister of such fee (if any) as may be prescribed with the consent of the Minister for Finance, issue to a person in respect of whom a permission granted under subsection (3) or (4) is in force a travel document identifying the holder thereof as such a person.

Protection of identity of applicants.

19. —(1) The Commissioner, the Appeal Board, the Minister, the Minister for Foreign Affairs and their respective officers shall take all practicable steps to ensure that the identity of applicants is kept confidential.

(2) Subject to sections 9 (15) and 26, no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast without the consent of that person and the consent of the Minister (which shall not be unreasonably withheld).

(3) If any matter is published or broadcast in contravention of subsection (2), the following persons, namely—

( a ) in the case of a publication in a newspaper or periodical, any proprietor, an editor and any publisher of the newspaper or periodical,

( b ) in the case of any other publication, the person who publishes it, and

( c ) in the case of matter broadcast, any person who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of the editor of a newspaper,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.

(4) Where a person is charged with an offence under subsection (3) it shall be a defence to prove that at the time of the alleged offence he or she was not aware, and neither suspected nor had reason to suspect, that the publication or broadcast in question was of such matter as is mentioned in subsection (2).

(5) In this section—

"a broadcast" means the transmission, relaying or distribution by wireless telegraphy of communications, sounds, signs, visual images or signals intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not;

"written publication" includes a film, a sound track and any other record in permanent form (including a record that is not in a legible form but which is capable of being reproduced in a legible form) but does not include an indictment or other document prepared for use in particular legal proceedings.

Prohibition of false information and alteration of identify documents.

20. —(1) In this section "identity documents" includes a passport, visa, national identity card, driving licence, birth certificate, marriage certificate or any other document establishing a person's nationality or identity purporting to be issued by or on behalf of a local or national authority of any country or by an organ or agency of the United Nations.

(2) If a person, for the purposes of or in relation to an application under section 8, gives or makes to the Commissioner, the Appeal Board or to an authorised officer any statement or information which is to his or her knowledge false or misleading in any material particular, that person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both.

(3) If a person, for the purposes of or in relation to an application for a declaration, destroys or conceals the identity documents of an applicant or of a person who subsequently makes an application for a declaration with intent to deceive, he or she shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both.

(4) If a person forges, or fraudulently alters, or assists in forging or fraudulently altering, or procures to be forged or fraudulently altered any identity documents for reward and such documents are used or intended to be used in connection with an application for a declaration, that person shall be guilty of an offence and shall be liable—

( a ) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both, or

( b ) on conviction on indictment to a fine not exceeding £60,000 or to imprisonment for a term not exceeding 3 years or to both.

(5) If a person sells or supplies, or has in his or her possession for the purpose of sale or supply, forged identity documents and such documents are used or intended to be used in connection with an application for a declaration, that person shall be liable—

( a ) on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months or to both, or

( b ) on conviction on indictment, to a fine not exceeding £100,000 or to imprisonment for a term not exceeding 5 years or to both.

(6) A member of the Garda Síochána may arrest without warrant a person whom the member reasonably suspects of committing or of having committed an offence under this section.

Revocation of declaration.

21. —(1) Subject to subsection (2), if the Minister is satisfied that a person to whom a declaration has been given—

( a ) has voluntarily re-availed himself or herself of the protection of the country of his or her nationality,

( b ) having lost his or her nationality, has voluntarily re-acquired it,

( c ) has acquired a new nationality (other than the nationality of the State) and enjoys the protection of the country of his or her new nationality,

( d ) has voluntarily re-established himself or herself in the country which he or she left or outside which he or she remained owing to fear of persecution,

( e ) can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of his or her nationality,

( f ) being a person who has no nationality is, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, able to return to the country of his or her former habitual residence,

( g ) is a person whose presence in the State poses a threat to national security or public policy ("ordre public"), or

( h ) is a person to whom a declaration has been given on the basis of information furnished to the Commissioner or, as the case may be, the Appeal Board which was false or misleading in a material particular,

the Minister may, if he or she considers it appropriate to do so, revoke the declaration.

(2) The Minister shall not revoke a declaration on the grounds specified in paragraph (e) or (f) where the Minister is satisfied that the person concerned is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of his or her nationality or for refusing to return to the country of his or her former habitual residence, as the case may be.

( 3 ) ( a ) Where the Minister proposes to revoke a declaration under subsection (1), he or she shall send a notice in writing to the person concerned of his or her proposal and of the reasons for it and shall at the same time send a copy thereof to the person's solicitor (if known) and to the High Commissioner.

( b ) A person who has been notified of a proposal under paragraph (a) may, within 21 days of the issue of the notification, make representations in writing to the Minister and the Minister shall—

(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and

(ii) send a notice in writing to the person of his or her decision and of the reasons for it.

( 4 ) ( a ) A notice under subsection (3) (a) shall include a statement that the person concerned may make representations in writing to the Minister within 21 days of the issue by the Minister of the notice.

( b ) A notice under subsection (3) (b) (ii) shall include a statement that the person concerned may appeal to the High Court under subsection (5) against the decision of the Minister to revoke a declaration under subsection (1) within 21 days from the date of the notice.

(5) A person concerned may appeal to the High Court against a decision of the Minister under this section and that Court may, as it thinks proper, on the hearing of the appeal, confirm the decision of the Minister or direct the Minister to withdraw the revocation of the declaration.

(6) A person concerned shall not be required to leave the State before the expiry of 21 days from the date of notice of a proposal under subsection (3) and, if an appeal is brought against the decision of the Minister, before the final determination or, as the case may be, the withdrawal of the appeal.

(7) The Minister may, at his or her discretion, grant permission in -writing to a person in respect of whom a declaration has been revoked under subsection (1) to remain in the State for such period and subject to such conditions as the Minister may specify in writing.

Dublin Convention.

22. —(1) The Minister may make such orders as appear to him or her to be necessary or expedient for the purpose of giving effect to the Dublin Convention.

(2) Without prejudice to the generality of subsection (1), an order under this section may—

( a ) specify the circumstances and procedure by reference to which an application for asylum—

(i) shall be examined in the State,

(ii) shall be transferred to a convention country for examination, or

(iii) shall be accepted for examination in the State pursuant to a request made by the convention country in which the application for asylum was first lodged,

( b ) provide for an appeal against a determination to transfer an application for asylum to a convention country and for the procedure in relation to such an appeal,

( c ) require that an application for asylum shall not be investigated by the Commissioner until it has been decided by the person specified in an order under this section whether a convention country is responsible for examining the application,

( d ) require that an application for asylum which has been referred to the Commissioner under section 8 shall be transferred to a convention country for examination,

( e ) provide that where an application has been transferred to a convention country for examination the person concerned shall go to that convention country,

( f ) specify the conditions governing the entry into and temporary stay in the State of a person whose application for asylum has been accepted for examination in the State,

( g ) provide for the transit through the State of a person whose application for asylum has been transferred from a convention country to another convention country for examination,

( h ) provide for the referral of an application for asylum to the Commissioner notwithstanding that a convention country has responsibility for examining the application, and

( i ) specify the measures to be taken for the purpose of the removal of a person whose application has been transferred to a convention country from the State to that convention country including, where necessary, the temporary detention or restraint of the person.

(3) An order under this section may make provision for such consequential, incidental, ancillary and supplementary matters as the Minister considers necessary or expedient.

( 4 ) ( a ) The Minister shall appoint one of his or her officers to determine the matters referred to in subsection (2) (a).

( b ) The Minister shall appoint a person (who shall have had not less than 7 years' experience as a practising barrister or solicitor before his or her appointment) to consider and decide appeals under subsection (2) (b).

( c ) A person appointed under paragraph (b) shall hold office for such period and on such other terms and conditions as the Minister may determine when appointing him or her.

(5) This section shall not be construed as authorising the transfer of an application for asylum to a convention country unless that country has agreed to accept responsibility for the examination of the application.

(6) ( a ) The Minister for Foreign Affairs may by order designate the countries which are parties to the Dublin Convention.

( b ) The Minister for Foreign Affairs may by order amend or revoke an order under this subsection including an order under this paragraph.

(7) The Minister may by order amend or revoke an order under this section (other than an order under subsection (6)) including an order under this subsection.

(8) Where an application has been transferred to a convention country for examination under subsection (2), the application shall be deemed to be withdrawn.

(9) The Minister shall, pursuant to Articles 14 and 15 of the Dublin Convention, communicate information to convention countries in relation to the matters referred to in those articles:

Provided that information concerning the grounds on which a particular application for asylum is based or the grounds on which a decision concerning such an application is based shall not be communicated under this section without the prior consent of the person the subject of the application.

(10) In this section, "an application for asylum" means a request whereby a person seeks the protection of the State or a convention country by claiming refugee status under the Geneva Convention and includes an application for a declaration under this Act.

Regulations.

23. —The Minister may make regulations for the purpose of enabling this Act to have full effect and, in particular, but without prejudice to the generality of the foregoing, regulations under this section may make provision in relation to—

( a ) applications for a declaration and the procedure for and in relation to such applications, and

( b ) appeals under this Act to the Appeal Board and the procedure for and in relation to such appeals.

"Programme refugees".

24. —(1) In this section "a programme refugee" means a person to whom leave to enter and remain in the State for temporary protection or resettlement as part of a group of persons has been given by the Government and whose name is entered in a register established and maintained by the Minister for Foreign Affairs, whether or not such person is a refugee within the meaning of the definition of "refugee" in section 2.

(2) A programme refugee shall, during such period as he or she is entitled to remain in the State pursuant to leave given by the Government, be entitled to the rights and privileges specified in section 3.

(3) Subject to subsection (4), the Minister may, on application in writing in that behalf and on payment to the Minister of such fee (if any) as may be prescribed with the consent of the Minister for Finance, issue to a programme refugee a travel document identifying the holder thereof as a programme refugee.

(4) The Minister may, in the interest of national security or public policy ("ordre public"), refuse to issue a travel document.

(5) A travel document shall be in such form as may be prescribed or in a form to the like effect.

(6) A person who applies to the Minister for a travel document under this section shall furnish to the Minister such information (if any) as the Minister may reasonably require for the purpose of his or her functions under this section.

Saving.

25. —Nothing in this Act shall be construed as preventing the extradition of a person in accordance with the provisions of the Extradition Acts, 1965 to 1994.

Annual report to Houses of Oireachtas.

26. —The Minister shall, not later than 2 months after the end of each year beginning with the year 1996, make a report to each House of the Oireachtas stating the number of cases (if any) in which sections 9(15), 17(2) and 18(5) were applied in the preceding year and the circumstances of any such case.

Laying of orders and regulations before Houses of Oireachtas.

27. —Every order (other than an order under subsection (2) or (8) of section 17) or regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next subsequent 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to anything previously done thereunder.

Transitional provision.

28. —Where, before the commencement of this Act, a person had made an application to the Minister for asylum but a decision in relation thereto had not been made by the Minister then, the application shall be deemed to be an application under section 8 and shall be dealt with accordingly; any step taken by the Minister before such commencement in relation to the application (being a step required to be taken under this Act in relation to an application under this Act) shall be deemed to have been taken under this Act.

Expenses of Minister.

29. —The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

Short title and commencement.

30. —(1) This Act may be cited as the Refugee Act, 1996 .

(2) This Act shall come into operation on such day or days as, by order or orders made by the Minister under this section, may be fixed therefor either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions.

Section 6.