Refugee Act 1996

Declaration that person is refugee.

17

17. (1) Subject to the subsequent provisions of this section, where a report under section 13 is furnished to the Minister or where the F47 [ Tribunal ] 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 F47 [ Tribunal ] 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.

F48 [ (1A) Where an application is withdrawn or (other than pursuant to section 22) deemed to be withdrawn, or an appeal under section 16 is withdrawn or deemed to be withdrawn, the Minister shall refuse to give the applicant a declaration.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.

F49 [ (5) Where the Minister has decided to refuse to give a declaration, F50 [ other than to an applicant to whom subsection (5A) applies, ] 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 ) he or she may make an application for a subsidiary protection declaration under the European Union (Subsidiary Protection) Regulations 2013 within 15 working days from the sending of the notice by completing the form for such an application and addressing it to the Commissioner, and

( c ) unless he or she makes an application for a subsidiary protection declaration referred to in paragraph ( b ), the Minister may make an order under section 3 of the Immigration Act, 1999 , requiring the applicant to leave the State and if the notice contains the statement specified in subsection (4) of that section, it shall not be necessary for the Minister to give the notification specified in subsection (3) of that section. ]

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

F51 [ (5A) Where the Minister has decided to refuse to give a declaration to an applicant who has made an application under Regulation 3A (inserted by Regulation 5 of the European Union (Subsidiary Protection) (Amendment) Regulations 2015) of the Regulations of 2013, 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 ) from the date of the sending of the notice, Regulations 4 to 20 of the Regulations of 2013 shall apply to his or her application under Regulation 3A of the Regulations of 2013 and the application will be investigated by the Commissioner in accordance with the Regulations of 2013, and

( c ) he or she may, within 15 working days from the sending of the notice, furnish to the Commissioner further information, in writing and in the form set out in Schedule 1B (inserted by Regulation 8 of the European Union (Subsidiary Protection) (Amendment) Regulations 2015) to the Regulations of 2013 or a form to the like effect, in respect of the application referred to in paragraph ( b ).

(5B) The Minister shall transmit a copy of a notice under subsection (5A) to the Commissioner. ]

(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.

F52 [ (7) A person to whom the Minister has refused to give a declaration may not make a subsequent application for a declaration under this Act without the consent of the Minister. ]

F53 [ (7A) The consent of the Minister referred to in subsection (7)

( a ) may only be given following a preliminary examination as to whether new elements or findings relating to the examination of whether the person qualifies as a refugee have arisen or been presented by the person, and

( b ) shall be given if, following the preliminary examination referred to in paragraph ( a ), new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee.

(7B) An application for the consent referred to in subsection (7) shall be accompanied by

( a ) a written statement of the reasons why the person concerned considers that the Minister should consent to a subsequent application for a declaration being made,

( b ) where the previous application or appeal was withdrawn or deemed to be withdrawn, a written explanation of the circumstances giving rise to the withdrawal or deemed withdrawal of the application or appeal,

( c ) all relevant information being relied upon by the person concerned to demonstrate that he or she is entitled to protection in the State, and

( d ) a written statement drawing to the Ministers attention any new elements or findings relating to the investigation of whether he or she is entitled to protection in the State which have arisen since his or her previous application for a declaration was the subject of a notice under subsection (5).

(7C) The Minister shall, as soon as practicable after receipt by him or her of an application under subsection (7B), give or cause to be given to the person concerned a statement in writing specifying, in a language that the person may reasonably be supposed to understand

( a ) the procedures that are to be followed for the purposes of subsections (7) to (7H),

( b ) the entitlement of the person to communicate with the High Commissioner,

( c ) the entitlement of the person to make submissions in writing to the Minister,

( d ) the duty of the person to co-operate with the Minister and to furnish information relevant to his or her application, and

( e ) such other information as the Minister considers necessary to inform the person of the effect of subsections (7) to (7H), and of any other relevant provision of F49 [ this Act, the Regulations of 2006 or the Regulations of 2013 ] .

(7D) Pursuant to an application under subsection (7B), and subject to subsection (7E), the Minister shall consent to a subsequent application for a declaration being made where he or she is satisfied that

( a ) since his or her previous application for a declaration was the subject of a notice under subsection (5), new elements or findings have arisen or have been presented by the person concerned which makes it significantly more likely that the person will be declared to be a refugee, and

( b ) the person was, through no fault of the person, incapable of presenting those elements or findings for the purposes of his or her previous application for a declaration (including, as the case may be, any appeal under section 16).

(7E) Pursuant to an application under subsection (7B) by or on behalf of a person who the Minister has, under Regulation 4(5) of the Regulations of 2006, determined not to be a person eligible for subsidiary protection, F54 [ or to whom the Minister has refused under Regulation 20(3) of the Regulations of 2013 to give a subsidiary protection declaration, ] the Minister shall consent to a subsequent application for a declaration being made where he or she is satisfied that

( a ) since his or her previous application for a declaration was the subject of a notice under subsection (5), new elements or findings have arisen or have been presented by the person concerned which makes it significantly more likely that the person will qualify for protection in the State, and

( b ) the person was, through no fault of the person, incapable of presenting those elements or findings for the purposes of his or her previous application for a declaration (including, as the case may be, any appeal under section 16) or, as the case may be, for the purposes of his or her application for subsidiary protection under Regulation 4 of the Regulations of 2006 F54 [ or for a subsidiary protection declaration under F55 [ Regulation 3 or 3A of the Regulations of 2013 ] (including any appeal under Regulation 8 of those Regulations) ] .

(7F) Where the Minister consents to the making of a subsequent application for a declaration, he or she shall, as soon as practicable, notify the person concerned of that fact.

(7G) Where the Minister refuses to consent to the making of a subsequent application for a declaration, he or she shall, as soon as practicable, notify the person concerned of that fact and of the reasons for it and of how a review of that decision may be sought.

F49 [ (7H) In this section protection in the State has the same meaning as it has in the Regulations of 2013. ] ]

(8) F56 [ ]

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

Annotations:

Amendments:

F47

Substituted (20.01.2000) by Immigration Act 1999 (22/1999), s. 11(1)(l)(i), (ii), S.I. No. 9 of 2000.

F48

Inserted (15.09.2003) by Immigration Act 2003 (26/2003), s. 7(j), S.I. No. 415 of 2003.

F49

Substituted (14.11.2013) by European Union (Subsidiary Protection) Regulations 2013 (S.I. No. 426 of 2013), reg. 34(a), (b) and (d), in effect as per reg. 1(2).

F50

Inserted (20.04.2015) by European Union (Subsidiary Protection) (Amendment) Regulations 2015 (S.I. No. 137 of 2015), reg. 6(a), in effect as per reg. 1(2).

F51

Inserted (20.04.2015) by European Union (Subsidiary Protection) (Amendment) Regulations 2015 (S.I. No. 137 of 2015), reg. 6(a), (b), in effect as per reg. 1(2).

F52

Substituted (1.03.2011) by European Communities (Asylum Procedures) Regulations 2011 (S.I. No. 51 of 2011), reg. 8(a), in effect as per reg. 1(2).

F53

Inserted (1.03.2011) by European Communities (Asylum Procedures) Regulations 2011 (S.I. No. 51 of 2011), reg. 8(b), in effect as per reg. 1(2).

F54

Inserted (14.11.2013) by European Union (Subsidiary Protection) Regulations 2013 (S.I. No. 426 of 2013), reg. 34(c), in effect as per reg. 1(2).

F55

Substituted (20.04.2015) by European Union (Subsidiary Protection) (Amendment) Regulations 2015 (S.I. No. 137 of 2015), reg. 6(c), in effect as per reg. 1(2).

F56

Deleted (20.01.2000) by Immigration Act 1999 (22/1999), s. 11(1)(l)(iii), S.I. No. 9 of 2000.

Editorial Notes:

E35

Comprehension requirement under certain conditions in relation to recommendation under subss. (7F), (7G) imposed (1.03.2011) by Refugee Act 1996 (Asylum Procedures) Regulations 2011 (S.I. No. 52 of 2011), reg. 6, in effect as per reg. 1(2).

E36

Previous affecting provision: subs. (5)(c) substituted (20.01.2000) by Immigration Act 1999 (22/1999), s. 11(1)(l)(i),(ii), S.I. No. 9 of 2000; subsection substituted as per F-note above.