Immigration Act 2003

Immigration Act 2003


Number 26 of 2003


IMMIGRATION ACT 2003

REVISED

Updated to 12 April 2019


This Revised Act is an administrative consolidation of Immigration Act 2003. It is prepared by the Law Reform Commission in accordance with its function under Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.

All Acts up to and including Land and Conveyancing Law Reform (Amendment) Act 2019 (22/2019), enacted 10 July 2019, and all statutory instruments up to and including Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2019 (Part 14) (Commencement) Order 2019 (S.I. No. 346 of 2019), made 10 July 2019, were considered in the preparation of this Revised Act.

Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to

revisedacts@lawreform.ie.


Number 26 of 2003


IMMIGRATION ACT 2003

REVISED

Updated to 12 April 2019


Introduction

This Revised Act presents the text of the Act as it has been amended since enactment, and preserves the format in which it was passed.

Related legislation

This Act is not collectively cited with any other Act.

Annotations

This Revised Act is annotated and includes textual and non-textual amendments, statutory instruments made pursuant to the Act and previous affecting provisions.

An explanation of how to read annotations is available at

www.lawreform.ie/annotations.

Material not updated in this revision

Where other legislation is amended by this Act, those amendments may have been superseded by other amendments in other legislation, or the amended legislation may have been repealed or revoked. This information is not represented in this revision but will be reflected in a revision of the amended legislation if one is available.

Where legislation or a fragment of legislation is referred to in annotations, changes to this legislation or fragment may not be reflected in this revision but will be reflected in a revision of the legislation referred to if one is available.

A list of legislative changes to any Act, and to statutory instruments from 1972, may be found linked from the page of the Act or statutory instrument at

www.irishstatutebook.ie.

Acts which affect or previously affected this revision

Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2019 (8/2019)

International Protection Act 2015 (66/2015)

Civil Registration Act 2014 (34/2014)

Child and Family Agency Act 2013 (40/2013)

Health Act 2004 (42/2004)

Immigration Act 2004 (1/2004)

All Acts up to and including Land and Conveyancing Law Reform (Amendment) Act 2019 (22/2019), enacted 10 July 2019, were considered in the preparation of this revision.

Statutory instruments which affect or previously affected this revision

Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011)

Immigration Act 2003 (Removal Places of Detention) Regulations 2005 (S.I. No. 56 of 2005)

Immigration Act 2003 (Carrier Liability) Regulations 2003 (S.I. No. 447 of 2003)

Immigration Act 2003 (Removal Direction) Regulations 2003 (S.I. No. 446 of 2003)

Immigration Act 2003 (Approved Ports) Regulations 2003 (S.I. No. 445 of 2003)

Immigration Act 2003 (Removal Places of Detention) Regulations 2003 (S.I. No. 444 of 2003)

Immigration Act 2003 (Section 7 Commencement) Order 2003 (S.I. No. 415 of 2003)

Immigration Act 2003 (Commencement) Order 2003 (S.I. No. 414 of 2003)

Immigration Act 2003 (Section 8 Commencement) Order 2003 (S.I. No. 363 of 2003)

All statutory instruments up to and including Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2019 (Part 14) (Commencement) Order 2019 (S.I. No. 346 of 2019), made 10 July 2019, were considered in the preparation of this revision.


Number 26 of 2003


IMMIGRATION ACT 2003

REVISED

Updated to 12 April 2019



Acts Referred to

Aliens Act 1935

1935, No. 14

Companies Acts 1963 to 2001

Local Government Acts 1925 to 2003

Criminal Justice (United Nations Convention against Torture) Act 2000

2000, No. 11

Illegal Immigrants (Trafficking) Act 2000

2000, No. 29

Immigration Act 1999

1999, No. 22

Local Government Act 2001

2001, No. 37

Refugee Act 1996

1996, No. 17

Road Traffic Act 1961

1961, No. 24


Number 26 of 2003


IMMIGRATION ACT 2003

REVISED

Updated to 12 April 2019


AN ACT TO MAKE PROVISION IN RELATION TO THE CONTROL OF ENTRY INTO THE STATE OF NON-NATIONALS, TO AMEND THE REFUGEE ACT 1996 AND TO PROVIDE FOR RELATED MATTERS. [14 th July, 2003]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Annotations:

Modifications (not altering text):

C1

Functions under Act transferred from Health Service Executive to Child and Family Agency (1.01.2014) by Child and Family Agency Act 2013 (40/2013), s. 82 and sch. 1, S.I. No. 502 of 2013.

Transfer of certain functions of Health Service Executive

82. (1) The administration and business in connection with the performance of any of the functions transferred by subsection (2) are transferred, on the establishment day, to the Agency.

(2) The functions vested in the Health Service Executive by or under the enactments specified in Schedule 1 shall, on the establishment day, stand transferred to the Agency.

...

SCHEDULE 1

Functions of Health Service Executive Transferred to Agency

Section 82

...

Immigration Act 2003

...

Editorial Notes:

E1

Previous affecting provision: functions of Health Boards under Act transferred to Health Service Executive (1.01.2005) by Health Act 2004 (42/2004), s. 59(1)-(3) and sch. 3, S.I. No. 887 of 2004; re-transferred as per C-note above.

Interpretation.

1

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

“the Act of 1935” means the Aliens Act 1935;

“carrier”, in relation to a vehicle, means—

( a) the owner of the vehicle, or

( b) in relation to a mechanically propelled vehicle, ship or boat, the person in charge of the vehicle;

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

“Irish transit visa” means an endorsement made on a passport or travel document other than an Irish passport or Irish travel document for the purposes of indicating that the holder thereof is authorised to arrive at a port in the State for purposes of passing through the port in order to travel to another state subject to any other conditions of arrival being fulfilled;

“Irish visa” means an endorsement made on a passport or travel document other than an Irish passport or Irish travel document for the purposes of indicating that the holder thereof is authorised to land in the State subject to any other conditions of landing being fulfilled;

“the Minister” means the Minister for Justice, Equality and Law Reform;

“non-national” has the meaning assigned to it by the Immigration Act 1999 ;

“owner”, in relation to a vehicle, includes any part owner, charterer, manager or operator of the vehicle;

“port” includes any place whether on a land or sea frontier where a person lands in or embarks from the State;

“prescribed” means prescribed by regulations made by the Minister;

“vehicle” includes any ship, boat, railway train, aircraft or mechanically propelled vehicle within the meaning of the Road Traffic Act 1961 .

(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.

Liability of carriers.

2

2.—(1) Where a vehicle arrives in the State from a place other than Great Britain, Northern Ireland, the Channel Isles or the Isle of Man the carrier concerned shall ensure—

( a) that all persons on board the vehicle seeking to land in the State or to pass through a port in the State in order to travel to another state disembark in compliance with any directions given by immigration officers,

( b) that all persons on board the vehicle seeking to land in the State are presented to an immigration officer for examination in respect of leave to land,

( c) that each non-national on board the vehicle seeking to land in the State or to pass through a port in the State in order to travel to another state has with him or her a valid passport or other equivalent document which establishes his or her identity and nationality and, if required by law, a valid Irish transit visa or a valid Irish visa.

(2) A person who contravenes paragraph (a), (b) or (c) of subsection (1) shall be guilty of an offence and, where a contravention by the person relates to more than one non-national, each such contravention shall constitute a separate offence.

(3) Where a vehicle arrives in the State from a place outside the State the carrier concerned shall, if so requested by an immigration officer, furnish him or her with—

( a) a list specifying the name and nationality of each person carried on board the vehicle in such form, and containing such other information relating to the identity of the person, as may be prescribed,

( b) details of the members of the crew of the vehicle.

(4) A person who contravenes paragraph (a) or (b) of subsection (3) shall be guilty of an offence.

(5) It shall be a defence for a person charged with an offence under this section to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with the provision of this Act.

(6) It shall be a defence for a person charged with an offence under this section consisting of a contravention of paragraph (c) of subsection (1) to show—

( a) that the non-national concerned had with him or her the relevant document before embarking on the vehicle concerned, or

( b) that he or she did not know and had no reasonable grounds for suspecting that the document was invalid.

(7) A person guilty of an offence under this section shall be liable on summary conviction to a fine of €3,000.

(8) The Minister may from time to time draw up and publish guidelines concerning steps to be taken by carriers to ensure compliance by them with this Act.

(9) This section is without prejudice to the provisions of sections 8, 9 and 24 of the Refugee Act 1996 and to the discretion of the Minister to admit to the State a person whom the Minister considers to be in need of the protection of the State.

Provisions in relation to offences.

3

3.—(1) Where an immigration officer has reasonable grounds for believing that an offence under section 2 is being or has been committed by a person he or she shall serve, or cause to be served, personally or by post, on the person a notice in the prescribed form or in a form to the like effect stating—

( a) that the person is alleged to have committed the offence,

( b) that the person may, during the period of 28 days beginning on the date of the notice, make to a member of the Garda Síochána or an authorised person at a Garda Síochána station or at another place specified in the notice a payment of €1,500 accompanied by the notice,

( c) that a prosecution in respect of the alleged offence will not be instituted during the period specified in the notice and, if the payment specified in the notice is being made during that period, no prosecution in respect of the alleged offence will be instituted.

(2) Where a notice is served under subsection (1)

( a) a person to whom the notice applies may, during the period specified in the notice, make to a member of the Garda Síochána or an authorised person at a Garda Síochána station or at another place specified in the notice the payment specified in the notice, accompanied by the notice,

( b) the member or the authorised person may receive the payment and issue a receipt for it and the money so received shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance directs and no payment so received shall in any circumstances be recoverable by the person who made it,

( c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice, and, if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence shall be instituted.

(3) In a prosecution for an offence under section 2 , it shall be presumed, until the contrary is shown by the accused person, that a payment pursuant to a notice under this section accompanied by the notice has not been made.

(4) In this section “authorised person” means a person appointed by the Minister to be an authorised person for the purposes of this section.

Annotations:

Modifications (not altering text):

C2

Functions under subs. (2)(b) transferred and references to “Department of Finance” and “Minister for Finance” construed (29.07.2011) by Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), arts. 2, 3, 5 and sch. 1 part 2, in effect as per art. 1(2), subject to transitional provisions in arts. 6-9.

2. (1) The administration and business in connection with the performance of any functions transferred by this Order are transferred to the Department of Public Expenditure and Reform.

(2) References to the Department of Finance contained in any Act or instrument made thereunder and relating to the administration and business transferred by paragraph (1) shall, on and after the commencement of this Order, be construed as references to the Department of Public Expenditure and Reform.

3. The functions conferred on the Minister for Finance by or under the provisions of —

(a) the enactments specified in Schedule 1, and

(b) the statutory instruments specified in Schedule 2,

are transferred to the Minister for Public Expenditure and Reform.

...

5. References to the Minister for Finance contained in any Act or instrument under an Act and relating to any functions transferred by this Order shall, from the commencement of this Order, be construed as references to the Minister for Public Expenditure and Reform.

...

Schedule 1

Enactments

...

Part 2

1922 to 2011 Enactments

Number and Year

Short Title

Provision

(1)

(2)

(3)

...

...

...

No. 26 of 2003

Immigration Act 2003

Section 3(2)(b)

...

...

...

Editorial Notes:

E2

Forms under subs. (1) prescribed (19.09.2003) by Immigration Act 2003 (Carrier Liability) Regulations 2003 (S.I. No. 447 of 2003), regs. 3-7 and schs. 1-5, in effect as per reg. 1(2).

Amendment of Aliens Act 1935.

4

4.The Aliens Act 1935 is hereby amended by the substitution of the following section for section 7:

“Entry, search and seizure.

7.—(1) Where, on the sworn information of a member of the Garda Síochána not below the rank of sergeant, a judge of the District Court is satisfied that—

( a) it is reasonably necessary for the purpose of the enforcement of—

(i) an aliens order, or

(ii) an order under section 3 or 4 of the Immigration Act 1999 (‘the Act of 1999’),

that a place specified in the information should be searched by members of the Garda Síochána, or

( b) there are reasonable grounds for suspecting that evidence of or relating to an offence under section 6 or section 3, 4 or 8 of the Act of 1999 is to be found at a place specified in the information,

the judge may issue a warrant for the search of that place and any persons found at that place.

(2) A warrant issued under this section shall authorise a named member of the Garda Síochána, alone or accompanied by such other members of the Garda Síochána and such other persons as may be necessary—

( a) to enter, within 7 days from the date of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,

( b) to search it and any persons found there, and

( c) to seize anything found there, or anything found in the possession of a person present there at the time of the search, which that member reasonably believes to be evidence of or relating to an offence under section 6 or section 3, 4 or 8 of the Act of 1999.

(3) A member of the Garda Síochána acting in accordance with a warrant issued under this section may require any person found at the place where the search is carried out to give the member his or her name and address.

(4) Any person who—

( a) obstructs or attempts to obstruct any member of the Garda Síochána acting in accordance with a warrant issued under subsection (1),

( b) fails or refuses to comply with a requirement under this section, or

( c) gives a name or address which is false or misleading,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or both.

(5) A member of the Garda Síochána may arrest without warrant any person whom the member reasonably suspects of having committed an offence under subsection (4).

(6) In this section, ‘place’ includes any dwelling, any building or part of a building and any vehicle, vessel, structure or container used or intended to be used for the carriage of goods by road.”.

Removal from the State of persons refused leave to land.

5

5.—(1) Subject to F1 [ section 3A of the Immigration Act 1999 ] and section 4 of the Criminal Justice (United Nations Convention against Torture) Act 2000 , this section applies to—

( a) a non-national to whom leave to land has been refused under Article 5(2) of the Aliens Order 1946 (SR&O 1946 No. 395) (“the Order”),

( b) a non-national who has failed to comply with Article 5(1) of the Order,

( c) a non-national who has entered the State in contravention of Article 6 of the Order,

( d) a non-national deemed to be a person to whom leave to land has been refused under the Order,

F2 [ (e) a non-national who has failed to comply with section 4 (2) of the Immigration Act 2004,

(f) a non-national who has been refused a permission under section 4 (3) of that Act,

(g) a non-national who is in the State in contravention of section 5 (1) of that Act,

(h) a non-national who has landed in the State in contravention of section 6 (1) of that Act , ]

whom an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects has been unlawfully in the State for a continuous period of less than 3 months.

F3 [ (2) (a) Subject to paragraph (b) , a person to whom this section applies may be arrested without warrant by an immigration officer or a member of the Garda S í och á na, and a person so arrested may be taken to a place referred to in subparagraph (i) or (ii) and detained

(i) under warrant of that officer or member in a prescribed place and in the custody of the officer of the Minister or member of the Garda S í och á na for the time being in charge of that place, or

(ii) for the purposes of subsection (6) and for a period or periods each not exceeding 12 hours

(I) in a vehicle, for the purposes of bringing the person to the port from which the ship, railway train, road vehicle or aircraft concerned is due to depart, or

(II) within the port referred to in clause (I) . ]

( b) Paragraph (a) shall not apply to a person who is under the age of 18 years.

( c) 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 (1) shall apply as if he or she had attained the age of 18 years.

( d) 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 F4 [ Child and Family Agency ] of the detention and of the circumstances thereof.

(3) ( a) A person arrested and detained under this section may, subject to subsection (4), be detained only until such time (being as soon as practicable) as he or she is removed from the State in accordance with this section but, in any event, may not be detained for a period exceeding 8 weeks in aggregate.

( b) The following periods shall be excluded in reckoning a period for the purpose of paragraph (a):

(i) any period during which the person is remanded in custody pending a criminal trial or serving a sentence of imprisonment,

(ii) any period spent by the person on board a ship, railway train, road vehicle or aircraft pursuant to this section, and

(iii) if the person has instituted court proceedings challenging the validity of his or her proposed removal from the State, any period spent by the person in a place of detention between the date of the institution of the proceedings and the date of their final determination including, where notice of appeal is given, the period between the giving thereof and the final determination of the appeal or any further appeal therefrom or the withdrawal of the appeal or, as appropriate, the expiry of the ordinary time for instituting any such appeal.

(4) Where a person detained under this section institutes court proceedings challenging the validity of his or her proposed removal from the State, the court hearing those proceedings or any appeal therefrom may, on application to it, determine whether the person shall continue to be detained or shall be released, and may make any such release subject to such conditions as it considers appropriate, including, but without prejudice to the generality of the foregoing, any one or more of the following conditions:

( a) that the person reside or remain in a particular district or place in the State;

( b) that he or she report to a specified Garda Síochána station or immigration officer at specified intervals;

( c) that he or she surrender any passport or travel document in his or her possession.

(5) A person to whom this section applies shall be removed by an immigration officer or a member of the Garda Síochána (at the option of the officer or member)—

( a) subject to paragraph (b), to the state where he or she last embarked (whether by land, sea or air) for the State, if known,

( b) where the person was refused leave to land in circumstances where he or she arrived at a port in the State for the purpose of passing through the State in order to travel to another state and either—

(i) the carrier who was to take the person to the country of destination refused to take the person on board, or

(ii) the authorities of the state of destination have refused the person entry into that state and have sent him or her back to the State,

to the state of the person's original embarkation for the State,

( c) to the state which issued the passport or travel document held by the person, if any,

( d) to the country of nationality of the person, so far as it appears to the immigration officer or the member of the Garda Síochána concerned, or

( e) to any country to which the person is guaranteed entry.

(6) A person arrested and detained under subsection (2) may be placed on a vehicle about to leave the State for a place referred to in subsection (5) by an immigration officer or a member of the Garda Síochána, and shall be deemed to be in lawful custody while so detained and until the vehicle leaves the State.

(7) The person in charge of a vehicle bound for a place referred to in subsection (5) shall, if so required by an immigration officer or a member of the Garda Síochána, receive a person to whom this section applies and his or her dependants, if any, on board such vehicle and afford him or her and his or her dependants proper accommodation and maintenance during the journey.

(8) A person to whom this section applies—

( a) shall not, by act or omission, obstruct or hinder an immigration officer or a member of the Garda Síochána engaged in the removal of a person from the State pursuant to this section,

( b) shall, for the purpose of facilitating his or her removal from the State, co-operate in any way necessary to enable an immigration officer or a member of the Garda Síochána engaged in the removal of the person to obtain a travel document, ticket or other document required for the purpose of such removal and, in particular, shall comply with any request from the immigration officer or, as the case may be, the member of the Garda Síochána to sign a document in that connection or to affix his or her fingerprints to such a document,

( c) shall not behave in a manner likely to endanger the safety of himself or herself or the safety of others in the course of his or her removal from the State.

(9) A person who contravenes subsection (8) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both.

(10)  ( a) This subsection applies where the identity of the carrier in whose vehicle a person to whom this section applies arrived in the State is known.

( b) An immigration officer or a member of the Garda Síochána may give a direction in writing in the prescribed form (or in a form to the like effect) to the carrier concerned to remove the person concerned, without delay, at no expense to the State, to a place referred to in subsection (5) , and the carrier shall comply with any such direction.

( c) A direction under paragraph (b) may specify, at the option of the person giving the direction, that the carrier remove the person concerned by transporting him or her in a vehicle under his or her control or by arranging with another carrier for the removal of the person concerned.

( d) Where the carrier fails or is unable to comply without delay with a direction under paragraph (b), the immigration officer or member of the Garda Síochána concerned may make alternative arrangements for the removal of the person to a place referred to in subsection (5) .

( e) Where alternative arrangements are made pursuant to paragraph (d), the costs incurred by the Minister in respect of the maintenance, detention or removal of the person concerned may be recovered from the carrier as a simple contract debt in any court of competent jurisdiction.

(11) A person who fails to comply with a direction under subsection (10) shall be guilty of an offence and shall be liable—

( a) on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both, or

( b) on conviction on indictment to a fine not exceeding €50,000 or imprisonment for a term not exceeding five years or both.

(12) A member of the Garda Síochána may arrest without warrant any person whom the member suspects of having committed an offence under subsection (9) or (11).

(13) The following provisions of the Order are revoked:

( a) paragraphs (4) and (5) of Article 5,

( b) Article 6(3),

( c) paragraphs (7) and (8) of Article 7, and

( d) the Fourth Schedule.

(14) Where, immediately before the commencement of subsection (13) , a person was detained under Article 5 of the Order in a place specified in the Fourth Schedule to the Order, his or her detention in that place shall be regarded as authorised by virtue of this section and this Act shall apply accordingly, and any period of detention under that Article shall be included in reckoning a period for the purpose of subsection (3) (a).

Annotations:

Amendments:

F1

Substituted (12.04.2019) by Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2019 (8/2019), s. 96, S.I. No. 346 of 2019.

F2

Inserted (13.02.2004) by Immigration Act 2004 (1/2004), s. 16(8), commenced on enactment.

F3

Substituted (10.03.2016) by International Protection Act 2015 (66/2015), s. 80, S.I. No. 133 of 2016.

F4

Substituted (1.01.2014) by Child and Family Agency (40/2013), s. 97 and sch. 2 part 18 item 1, S.I. No. 502 of 2013.

Editorial Notes:

E3

Places under subs. (2)(a) prescribed (3.02.2005) by Immigration Act 2003 (Removal Places of Detention) Regulations 2005 (S.I. No. 56 of 2005), reg. 3 and sch.

E4

Form under subs. (10)(b) prescribed (19.09.2003) by Immigration Act 2003 (Removal Direction) Regulations 2003 (S.I. No. 446 of 2003), reg. 2 and sch., in effect as per reg. 1(2).

E5

Previous affecting provision: subs. (2)(d) amended (1.01.2005) by Health Act 2004 (42/2004), s. 75 and sch. 6 part 25 item 1, S.I. No. 887 of 2004; substituted as per F-note above.

E6

Previous affecting provision: places under subs. (2)(a) prescribed (19.09.2003) by Immigration Act 2003 (Removal Places of Detention) Regulations 2003 (S.I. No. 444 of 2003), reg. 2 and sch., in effect as per reg. 1(2); revoked (3.02.2005) by Immigration Act 2003 (Removal Places of Detention) Regulations 2005 (S.I. No. 56 of 2005), reg. 2.

Offences by bodies corporate.

6

6.—(1) Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of the person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

Amendment of Refugee Act 1996.

7

7.The Refugee Act 1996 is hereby amended—

( a) in section 2, by the substitution of the following paragraph for paragraphs ( c), ( d) and ( e):

“( c) there are serious grounds for considering that he or she—

(i) 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,

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

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

( b) in section 7A (inserted by the Immigration Act 1999) by—

(i) the substitution in subsection (4)( a) of “2005” for “2001”,

(ii) the substitution in paragraph 1 of the Schedule of “15” for “14”, and

(iii) the insertion of the following paragraph after paragraph 3( g) of the Schedule:

“( gg) one shall be the chairperson of the Refugee Appeals Tribunal,”,

( c) in section 9, by—

(i)  the substitution in subsection (2) of the following paragraphs for paragraphs ( a) and ( b):

“( a) the date on which his or her application is transferred to a convention country pursuant to section 22 or to a safe third country (within the meaning of that section), or

 ( b) the date on which his or her application is withdrawn or deemed to be withdrawn under this section or section 11, or”,

(ii)  the substitution of the following subsection for subsection (4A) (inserted by the Illegal Immigrants (Trafficking) Act 2000 ):

“(4A) ( a) An applicant shall inform the Commissioner of his or her address and of any change of address as soon as possible.

( b) Where 5 working days have elapsed since the making of an application for a declaration and the applicant has not informed the Commissioner of his or her address, the application shall be deemed to be withdrawn.”,

(iii) the substitution of the following subsections for subsections (5) and (6):

“(5) ( a) An immigration officer or an authorised person may, by notice in writing, require an applicant—

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

(ii) to report at specified intervals to an immigration officer or person or persons authorised by the Minister or member of the Garda Síochána specified in the notice,

and the applicant shall comply with the requirement.

( b) In this subsection ‘an authorised person’ means a person appointed by the Minister to be an authorised person for the purposes of this subsection.

(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 or the authorised person concerned to withdraw the requirement concerned or to amend it in a specified manner.”,

(iv) the substitution in subsection (7) of “subsection (4), (4A) or (5)” for “subsection (4) or (5)”,

(v) by the insertion in subsection (8)( d) after “section 22” of “or a safe third country (within the meaning of that section)”,

(vi) the substitution in subsection (10)( b)(i) of “21 days” for “10 days”, and

(vii) the substitution in subsection (14)( a) of “21 days” for “10 days”,

( d) by the substitution of the following section for section 9A:

“Powers of authorised officers and immigration officers.

9A.—(1) An authorised officer, a member of the Garda Síochána or an immigration officer may, for the purposes of this Act, take or cause to be taken the fingerprints of an applicant.

(2) Fingerprints shall not be taken under this section from a person under the age of 14 years except in the presence of a person who is—

( a) a parent or a person who is acting in loco parentis; or

( b) an officer of the health board or other person appointed by the health board under section 8(5)( b).

(3) The fingerprints of a person under the age of 14 years shall not be taken under this section without the prior approval—

( a) in the case of an authorised officer or an immigration officer who is not a member of the Garda Síochána, of the Minister or a person designated for that purpose by the Minister; or

( b) in the case of a member of the Garda Síochána, of his or her chief superintendent or a person designated for that purpose by his or her chief superintendent.

(4) If and for so long as the authorised officer, 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 14 years, the provisions of subsection (2) shall apply as if he or she had attained the age of 14 years.

(5) An applicant who refuses to permit his or her fingerprints to be taken pursuant to subsection (1) shall be deemed not to have made reasonable efforts to establish his or her true identity within the meaning of section 9(8)( c), and to have failed to comply with the requirements of section 11C.

(6) The Commissioner of the Garda Síochána shall arrange for the maintenance of a record of fingerprints taken pursuant to subsection (1).

(7) Every fingerprint of an applicant taken pursuant to subsection (1) and every copy thereof shall, if not previously destroyed, be destroyed—

( a) in case the applicant becomes a citizen of the State, before the expiration of one month after the granting of the certificate of naturalisation or of Irish citizenship to him or her or the acknowledgement by the Minister of the validity of his or her declaration accepting Irish citizenship, as the case may be;

( b) in any other case, before the expiration of 10 years after the taking of such fingerprints.

(8) Information obtained pursuant to subsection (1) may be communicated to convention countries or a safe third country (within the meaning of section 22) as if it was information to which subsection (9) or, as may be appropriate, subsection (10) of that section relates.”,

( e) in section 11 (as amended by the Immigration Act 1999) by—

(i) the substitution of the following subsection for subsection (1):

“(1) Where an application is received by the Commissioner under section 8 and the application is not withdrawn or deemed to be withdrawn pursuant to this section or section 9 or 22, 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.”,

(ii) the substitution of the following subsection for subsection (2):

“(2) In a case to which subsection (1) 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 interview concerned to the Commissioner and an interview under this subsection shall, where necessary and possible, be conducted with the assistance of an interpreter.”,

(iii) the substitution of the following subsection for subsection (3):

“(3)( a) 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 made before or during an interview under subsection (2).

( b) The High Commissioner may, whenever he or she so requests, be present at an interview under subsection (2).”,

(iv) the deletion of subsection (6) and (7),

(v) the substitution in subsection (8) of the following paragraphs for paragraphs ( e) and ( f):

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

( f)  the obligation of the applicant to comply with subsections (4), (4A) and (5) of section 9 and the possible consequences of non-compliance with that obligation including the possibility that his or her application for a declaration may be deemed to be withdrawn and that the Minister may refuse to give the applicant a declaration,

( g)  the possible consequences of the failure of the applicant to attend an interview under this section.”,

(vi) by the substitution of the following subsections for subsection (9) (inserted by the Immigration Act 1999 ):

“(9) An applicant may withdraw his or her application for a declaration by sending notice of withdrawal to the Commissioner.

(10) Where an applicant does not attend for interview with an authorised officer under this section on the date and at the time fixed for the interview then, unless the applicant, not later than 3 working days from that date, furnishes the Commissioner with an explanation for the non-attendance which in the opinion of the Commissioner is reasonable in the circumstances, his or her application shall be deemed to be withdrawn.

(11) Where—

( a) it appears to the Commissioner that an applicant is failing in his or her duty to co-operate with the Commissioner or to furnish information relevant to his or her application for a declaration, or

( b) the Minister notifies the Commissioner that he or she is of opinion that the applicant is in breach of subsection (4)( a), (4A) or (5) of section 9,

the Commissioner shall send to the applicant a notice in writing inviting the applicant to indicate in writing (within 15 working days of the sending of the notice) whether he or she wishes to continue with his or her application and, if an applicant does not furnish an indication within the time specified in the notice, his or her application for a declaration shall be deemed to be withdrawn.

(12) The procedures to be followed in investigations under this section may be prescribed and different procedures may be prescribed for different classes of applications.”,

( f) by the insertion of the following sections after section 11:

“Burden of proof.

11A.—(1) Where, at any time during the investigation of an application by the Commissioner under section 11, it appears to him or her that an applicant—

( a) is a national of, or has a right of residence in, a country standing designated by order under section 12(4) as a safe country of origin, or

( b) had lodged a prior application for asylum in another state party to the Geneva Convention,

then the applicant shall be presumed not to be a refugee unless he or she shows reasonable grounds for the contention that he or she is a refugee.

(2) Where an application is one to which section 22 applies, it shall be for the applicant to show that his or her application should be examined in the State.

(3) Where an applicant appeals against a recommendation of the Commissioner under section 13, it shall be for him or her to show that he or she is a refugee.

Credibility.

11B.—The Commissioner or the Tribunal, as the case may be, in assessing the credibility of an applicant for the purposes of the investigation of his or her application or the determination of an appeal in respect of his or her application, shall have regard to the following:

( a) whether the applicant possesses identity documents, and, if not, whether he or she has provided a reasonable explanation for the absence of such documents;

( b) whether the applicant has provided a reasonable explanation to substantiate his or her claim that the State is the first safe country in which he or she has arrived since departing from his or her country of origin or habitual residence;

( c) whether the applicant has provided a full and true explanation of how he or she travelled to and arrived in the State;

( d) where the application was made other than at the frontiers of the State, whether the applicant has provided a reasonable explanation to show why he or she did not claim asylum immediately on arriving at the frontiers of the State unless the application is grounded on events which have taken place since his or her arrival in the State;

( e) where the applicant has forged, destroyed or disposed of any identity or other documents relevant to his or her application, whether he or she has a reasonable explanation for so doing;

( f) whether the applicant has adduced manifestly false evidence in support of his or her application, or has otherwise made false representations, either orally or in writing;

( g) whether the applicant, without reasonable cause, having withdrawn his or her application and not having been refused a declaration under section 17, has made a subsequent application under section 8;

( h) whether the applicant, without reasonable cause, has made an application following the notification of a proposal under section 3(3)( a) of the Immigration Act 1999;

( i) whether the applicant has complied with the requirements of section 11C;

( j) whether the applicant has, without reasonable cause, failed to comply with the requirements of section 9(4)( a);

( k) whether the applicant has, without reasonable cause, failed to comply with the requirements of section 9(4A);

( l) whether the applicant has, without reasonable cause, failed to comply with the requirements of section 9(5);

( m) whether, in the case of an application to which section 16 applies, the applicant has furnished information in relation to the application which he or she could reasonably have furnished during the investigation of the application by the Commissioner but did not so furnish.

Duty to co-operate.

11C.—(1) It shall be the duty of an applicant to co-operate in the investigation of his or her application and in the determination of his or her appeal, if any.

(2) In compliance with subsection (1), an applicant shall furnish to the Commissioner or the Tribunal, as may be appropriate, as soon as reasonably practicable, all information in his or her possession, control or procurement relevant to his or her application.”,

( g) by the substitution of the following section for section 12:

“Prioritisation of applications.

12.—(1) Subject to the need for fairness and efficiency in dealing with applications for a declaration under this Act, the Minister may, where he or she considers it necessary or expedient to do so, give a direction in writing to the Commissioner or the Tribunal or to both requiring either or both of them, as the case may be, to accord priority to certain classes of applications determined by reference to one or more of the following matters:

( a) the grounds of applications under section 8,

( b) the country of origin or habitual residence of applicants,

( c) any family relationship between applicants,

( d) the ages of applicants and, in particular, of persons under the age of 18 years in respect of whom applications are made,

( e) the dates on which applications were made,

( f) considerations of national security or public policy,

( g) the likelihood that the applications are well-founded,

( h) if there are special circumstances regarding the welfare of applicants or the welfare of family members of applicants,

( i) whether applications do not show on their face grounds for the contention that the applicant is a refugee,

( j) whether applicants have made false or misleading representations in relation to their applications,

( k) whether applicants had lodged prior applications for asylum in another country,

( l) whether applications under section 8 were made at the earliest opportunity after arrival in the State,

( m) whether applicants are nationals of or have a right of residence in a country of origin designated as safe under this section,

( n) if an applicant is a person to whom paragraph ( a), ( b) or ( c) of section 2 applies.

(2) The Commissioner or the Tribunal shall comply with a direction given to him, her or it under this section.

(3) The Minister may be a direction revoke or alter a direction given by him or her under subsection (1).

(4) ( a) The Minister may, after consultation with the Minister for Foreign Affairs, by order designate a country as a safe country of origin.

( b) In deciding whether to make an order under paragraph ( a), the Minister shall have regard to the following matters:

(i) whether the country is a party to and generally complies with obligations under the Convention Against Torture, the International Covenant on Civil and Political Rights, and, where appropriate, the European Convention on Human Rights,

(ii) whether the country has a democratic political system and an independent judiciary,

(iii) whether the country is governed by the rule of law.

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

(5) In this section—

‘the Convention against Torture’ means the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by resolution 39/46 of the General Assembly of the United Nations on 10 December 1984;

‘the European Convention on Human Rights’ means the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November, 1950;

‘the International Covenant on Civil and Political Rights’ means the International Covenant on Civil and Political Rights adopted by Resolution 2200A (XXI) of the General Assembly of the United Nations on 16 December 1966.”,

( h) by the substitution of the following section for section 13:

“Recommendations and reports of Commissioner.

13.—(1) Where the Commissioner carries out an investigation under section 11 he or she shall, as soon as may be, prepare a report in writing of the results of the investigation and such report shall refer to the matters raised by the applicant in the interview under section 11 and to such other matters as the Commissioner considers appropriate and 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.

(2) Where an application for a declaration is withdrawn or deemed to be withdrawn pursuant to section 9 or 11, then—

( a) any investigation under section 11 shall be terminated,

( b) the report referred to in subsection (1) shall state that the application has been withdrawn or deemed to be withdrawn, as the case may be, and shall include a recommendation that the applicant concerned should not be declared to be a refugee, and

( c) no appeal under section 16 shall lie against a recommendation under paragraph ( b).

(3) The Commissioner shall, if so requested by the High Commissioner, notify him or her of the making of the recommendation under subsection (1).

(4) ( a) The Commissioner shall send a copy of a report under subsection (1) to the applicant concerned, to his or her solicitor (if known) and, if so requested by the High Commissioner, to him or her.

( b) Where a report under subsection (1) (other than a report to which subsection (2) applies) includes a recommendation that the applicant should not be declared to be a refugee, the Commissioner shall, subject to subsections (5) and (8), send a notice in writing to the applicant stating that the applicant may appeal to the Tribunal under section 16 against the recommendation and may request an oral hearing within 15 working days from the sending of the notice.

( c) Where the applicant has not appealed against the recommendation referred to in paragraph ( b) within 15 working days after the sending of a notice under that paragraph, the Commissioner shall, as soon as may be, furnish the report under subsection (1) to the Minister.

( d) Where a report under subsection (1) includes a recommendation that the applicant should be declared to be a refugee, the Commissioner shall, as soon as may be, furnish the report to the Minister.

( e) Where a report under subsection (1) includes a recommendation pursuant to subsection (2) that the applicant should not be declared to be a refugee, the Commissioner shall, as soon as may be, furnish the report to the Minister.

(5) Where a report under subsection (1) includes a recommendation that the applicant should not be declared to be a refugee and includes among the findings of the Commissioner any of the findings specified in subsection (6), then the following shall, subject to subsection (8), apply:

( a) the notice under paragraph ( b) of subsection (4) shall, notwithstanding that subsection, state that the applicant may appeal to the Tribunal under section 16 against the recommendation within 10 working days from the sending of the notice, and that any such appeal will be determined without an oral hearing;

( b) notwithstanding paragraph ( c) of subsection (4), where the applicant has not appealed against the recommendation within 10 working days after the sending of a notice under paragraph ( b) of that subsection, the Commissioner shall, as soon as may be, furnish the report under subsection (1) to the Minister.

(6) The findings referred to in subsection (5) are—

( a) that the application showed either no basis or a minimal basis for the contention that the applicant is a refugee;

( b) that the applicant made statements or provided information in support of the application of such a false, contradictory, misleading or incomplete nature as to lead to the conclusion that the application is manifestly unfounded;

( c) that the applicant, without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State;

( d) the applicant had lodged a prior application for asylum in another state party to the Geneva Convention (whether or not that application had been determined, granted or rejected); or

( e) the applicant is a national of, or has a right of residence in, a safe country of origin for the time being so designated by order under section 12(4).

(7) ( a) The Minister may give a direction in writing to the Commissioner requiring him or her to investigate under section 11 such class of applications as may be specified in the direction in accordance with the procedures referred to in subsection (8) and the Commissioner shall comply with a direction given to him or her under this subsection.

( b) The Minister may by a direction revoke or alter a direction given by him or her under paragraph ( a).

(8) Where an application referred to in subsection (7) has been investigated under section 11 and the relevant report under subsection (1) includes a recommendation that the applicant should not be declared to be a refugee and contains among the findings of the Commissioner any of the findings specified in subsection (6), then the following shall, subject to subsection (9), apply:

( a) the notice under paragraph ( b) of subsection (4) shall, notwithstanding that subsection, state that the applicant may appeal to the Tribunal under section 16 against the recommendation within 4 working days from the sending of the notice, and that any such appeal will be determined without an oral hearing,

( b) notwithstanding paragraph ( c) of subsection (4), where the applicant has not appealed against the recommendation within 4 working days after the sending of a notice under paragraph ( b) of that subsection, the Commissioner shall, as soon as may be, furnish the report under subsection (1) to the Minister.

(9) ( a) Where an application is to be investigated in accordance with the procedures referred to in subsection (8), the Commissioner shall notify the applicant accordingly in writing and shall send a copy of the notice to his or her solicitor (if known) and, if so requested by the High Commissioner, to him or her.

( b) Paragraphs ( a) and ( b) of subsection (8) shall not apply to such an application unless the applicant concerned and his or her solicitor (if known) have been notified in accordance with paragraph ( a).

(10) Where a report under subsection (1) (other than a report to which subsection (2) applies) includes a recommendation that the applicant should not be declared to be a refugee, then, subject to subsection (11), the Commissioner shall furnish the applicant concerned and his or her solicitor (if known) and the High Commissioner, whenever so requested by him or her, with copies of any reports, documents or representations in writing submitted to the Commissioner under section 11 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 that section.

(11) 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.”,

( i) in section 16, by—

(i)  the substitution of the following subsection for subsection (1):

“(1) The applicant may appeal in the prescribed manner against a recommendation of the Commissioner under section 13 (other than a recommendation pursuant to section 13(2)).”,

(ii)  the substitution of the following subsection for subsection (2):

“(2) The Tribunal may—

( a) affirm a recommendation of the Commissioner, or

( b) set aside a recommendation of the Commissioner and recommend that the applicant should be declared to be a refugee.”,

(iii) the substitution of the following for subsection (2A) (inserted by the Immigration Act 1999):

“(2A) Where an applicant fails, without reasonable cause, to attend an oral hearing under subsection (10), then unless the applicant, not later than 3 working days from the date fixed for the oral hearing, furnishes the Tribunal with an explanation for not attending the hearing which the Tribunal considers reasonable in the circumstances his or her appeal shall be deemed to be withdrawn.

(2B) Where—

( a) it appears to the Tribunal that an applicant is failing in his or her duty to co-operate with the Commissioner or to furnish information relevant to his or her appeal, or

( b) the Minister notifies the Tribunal that he or she is of opinion that the applicant is in breach of subsection (4)( a), (4A) or (5) of section 9,

the Tribunal shall send to the applicant a notice in writing inviting the applicant to indicate in writing (within 15 working days of the sending of the notice) whether he or she wishes to continue with his or her appeal and, if an applicant does not furnish an indication within the time specified in the notice, his or her appeal shall be deemed to be withdrawn.”,

(iv) the substitution of the following subsection for subsection (3):

“(3) An appeal under this section shall be brought by notice in writing within the period specified in section 13(4)( b) or 13(5)( a) or 13(8)( a), as appropriate, and the notice shall specify the grounds of appeal and, except in a case to which section 13(5) or 13(8) applies, shall indicate whether the applicant wishes the Tribunal to hold an oral hearing for the purpose of his or her appeal.”,

(v)  the deletion in subsection (5) of “or 12”,

(vi) the substitution of the following subsection for subsection 9:

“(9) ( a) An applicant may withdraw his or her appeal to the Tribunal by sending notice of withdrawal to the Tribunal and the Tribunal shall, as soon as may be, notify the Minister and the Commissioner of the withdrawal.

 ( b) Where an appeal is deemed to be withdrawn pursuant to subsection (2A) or (2B), the Tribunal shall, as soon as may be, notify the applicant, his or her solicitor (if known), the Minister and the Commissioner of the withdrawal.”,

(vii) the deletion in subsection (16)( b) of “the recommendation of the Commissioner under section 12 or, as may be appropriate,”,

(viii) the insertion of the following subsection after subsection (16):

“(16A) The Tribunal shall affirm a recommendation of the Commissioner unless it is satisfied, having considered the matters referred to in subsection (16), that the applicant is a refugee.”,

(ix) the deletion in subsection (17)( b) of “(other than a decision of the Tribunal under subsection (2)( d))”, and

(x) the insertion of the following subsection after subsection (17):

“(18) The Tribunal shall ensure that an appeal against a recommendation of the Commissioner to which section 13(5) or 13(8) applies shall be dealt with as soon as may be and, if necessary, before any other application for a declaration.”,

( j) in section 17 (as amended by the Immigration Act 1999), by the insertion of the following subsection after subsection (1):

“(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.”,

( k) in section 19, by—

(i) the substitution of the following subsection for subsection (2):

“(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

(ii) by the insertion of the following subsection after subsection (4):

(4A) ( a) The chairperson of the Tribunal may, at his or her discretion, decide not to publish (other than to the persons referred to in section 16(17)) a decision of the Tribunal which in his or her opinion is not of legal importance.

( b) Any decision published shall exclude any matters which would tend to identify a person as an applicant under the Act or otherwise breach the requirement that the identity of applicants be kept confidential.

( l) the substitution of the following section for section 22:

“Dublin Convention, agreements with safe third countries etc.

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—

( a) the Dublin Convention,

( b) Council Regulation (EC) No. 343/2003 1,

( c) the Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway done at Brussels on the 19th day of January 2001,

( d) any agreement of the kind referred to in subsection (5).

(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 to a safe third country, or

(iii) shall be accepted for examination in the State pursuant to a request made by a convention country in which the application for asylum was lodged or pursuant to an agreement to which subsection (1)( d) refers,

and the powers referred to in this subsection shall be exercised by whichever of the persons mentioned in subsection (4)( a) is specified in the order,

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

( c) provide, where the order specifies that the making of an appeal shall not suspend the transfer of the application or of the applicant to the convention country or the safe third country, that such transfer is without prejudice to the appeal decision,

( d) require that an application for asylum shall not be investigated by the Commissioner until it has been decided whether a convention country is responsible for examining the application or whether the application should be transferred to a safe third country,

( e) require that an application for asylum which is being investigated by the Commissioner shall be transferred to a convention country for examination,

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

( 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 investigation of an application for asylum by the Commissioner notwithstanding that a convention country has responsibility for examining the application,

( 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 or a safe third country from the State to that convention country or safe third country including, where necessary, the temporary detention or restraint of the person, and

( j) provide for the temporary detention (for a period not exceeding 48 hours) of a person who, having arrived in the State directly from a convention country or a safe third country, makes an application for asylum until a decision on the matters at paragraph ( a) has been made.

(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 persons referred to in subsection (2)( a) are the Minister, the Commissioner, and an immigration officer.

( b) The Tribunal shall consider and decide appeals under subsection (2)( b).

(5) ( a) The Minister may, after consultation with the Minister for Foreign Affairs, by order designate a country as a safe third country (referred to in this section as “a safe third county”).

( b) In deciding whether to make an order under paragraph ( a), the Minister shall have regard to the following matters:

(i) whether the country is party to and complies generally with its obligations under the Geneva Convention, the Convention against Torture (within the meaning of section 12) and the International Convenant on Civil and Political Rights (within the meaning aforesaid);

(ii) whether the country has a democratic political system and an independent judiciary;

(iii) whether the country is governed by the rule of law;

and that country and the State are parties to an agreement which contains provisions providing for—

(I) the prompt transfer to that country of an application for asylum made in the State by a person who has arrived from that country, and

(II) the prompt transfer to the State of an application for asylum made in that country by a person who has arrived in that country from the State.

( c) The Minister may, after consultation with the Minister for Foreign Affairs, by order amend or revoke an order under this subsection including an order under this paragraph.

(6) ( a) The Minister for Foreign Affairs may by order designate the countries which are parties to the Dublin Convention or to the Agreement referred to in subsection (1)( c) or the countries to which the Council Regulation referred to in subsection (1)( b) applies.

( 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 or to a safe third country, the application shall be deemed to be withdrawn.

(9) ( a) The Minister shall, pursuant to Article 14 of the Dublin Convention or the corresponding provision of the agreement referred to in subsection (1)( c), communicate information to convention countries or to any relevant country pursuant to that agreement in relation to matters referred to in that Article.

( b) The Commissioner shall, pursuant to Article 15 of the Dublin Convention or the corresponding provision of the agreement referred to in subsection (1)( c), communicate information to convention countries or to any relevant country pursuant to that agreement in relation to matters referred to in that Article:

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) The Minister and the Commissioner may communicate to a safe third country such information relating to an application for asylum or to the person making such application (including personal information) as may be necessary for giving effect to an agreement to which subsection (1)( d) refers:

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.

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

( m) in section 24, by the insertion of the following subsection after subsection (6):

“(7) ( a) The Minister may, after consultation with the Minister for Foreign Affairs, enter into agreements with the High Commissioner for the reception and resettlement in the State of refugees.”,

( n) by the insertion after section 28 of the following section:

“Transitional.

28A.—(1) Where an application has been made under section 8 before the commencement of section 7 of the Immigration Act 2003

( a) in case, before such commencement, the applicant has been interviewed under section 11, then, upon such commencement, this Act shall apply to the application as if the said section 7 had not been commenced,

( b) in any other case, then, upon such commencement, this Act, as amended by the said section 7 , shall apply to the application.

(2) The Commissioner shall give or cause to be given to each applicant to whose application subsection (1)( b) applies, before he or she is interviewed under section 11, a statement in writing giving a short explanation of the amendments made by the said section 7 .”,

( o) in the First Schedule (inserted by the Immigration Act 1999 ), by the insertion of the following paragraphs after paragraph 9:

“10. (1) Where the Commissioner is for any reason temporarily unable to act as the Commissioner or the office of the Commissioner is vacant, the Minister shall appoint a person to be the Commissioner for the duration of the inability or until an appointment is made in accordance with paragraph 1, as the case may be, and the person so appointed may perform all the functions conferred on the Commissioner by this Act.

(2) A person appointed under this paragraph shall hold office upon such terms and conditions as may be determined by the Minister after consultation with the Minister for Finance.

11. The Commissioner may, if he or she considers it appropriate to do so in the interest of the fair and efficient discharge of the business of his or her office, determine the order in which different classes of such business shall be discharged having regard to the following matters:

( a) the grounds of the applications under section 8,

( b) the country of origin of the applicants,

( c) any family relationship between applicants,

( d) the ages of the applicants and, in particular, of persons under the age of 18 years in respect of whom applications are made,

( e) the dates on which applications were made.”,

( p) in the Second Schedule (inserted by the Immigration Act 1999 ), by—

(i) the substitution of the following for paragraph 8:

“8. (1) If a member of the Tribunal dies, resigns, becomes disqualified or is removed from office, the Minister may appoint another person to be a member of the Tribunal to fill the casual vacancy so occasioned and the person appointed shall be appointed in the same manner of the Tribunal member who occasioned the vacancy.

(2) Where the chairperson is for any reason temporarily unable to act as the chairperson, or the office of the chairperson is vacant, the Minister shall appoint a person to be the chairperson for the duration of the inability or until an appointment is made under paragraph 2, as appropriate, and the person so appointed may perform all the functions conferred on the chairperson by this Act.

(3) A person appointed under this paragraph shall hold office upon such terms and conditions as may be determined by the Minister after consultation with the Minister for Finance.”,

and

(ii) the substitution of the following for paragraph 13:

“13. The chairperson shall assign to each division the business to be transacted by it.

14. The chairperson shall endeavour to ensure that the business of the Tribunal is managed efficiently and that the business assigned to each division is disposed of as expeditiously as may be consistent with fairness and natural justice.

15. The chairperson may, if he or she considers it appropriate to do so in the interest of the fair and efficient discharge of the business of the Tribunal, assign classes of business to each division having regard to the following matters:

( a) the grounds of the appeals set out in the notices of appeal,

( b) the country of origin of applicants,

( c) any family relationship between applicants,

( d) the ages of the applicants and, in particular, of persons under the age of 18 years in respect of whom applications are made,

( e) the provision of this Act pursuant to which the appeals are made.

16. The chairperson may delegate to a member of his or her staff his or her function of assigning to each division the business to be transacted by it.

17. The chairperson may from time to time issue guidelines or guidance notes generally on the practical application and operation of the provisions, or any particular provisions, of this Act and on developments in the law relating to refugees.

18. The chairperson may from time to time convene a meeting with a member or members of the Tribunal for the purpose of discussing matters relating to the discharge of the business of the Tribunal, including, in particular, such matters as the avoidance of undue divergences in the exercise by the members of their functions under section 16.

19. The chairperson 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.

20. The chairperson may, if he or she considers it appropriate to do so, make a report in writing to the Minister in relation to any function performed by him or her under this Act or any matter relating to the operation of this Act.”.

1 Heading added according to the provisions of Protocol No. 11 (ETS No. 155).

Exchange of information.

8

8.—(1) Notwithstanding any provision of any other enactment but subject to section 11(4) of the Refugee Act 1996 (“the Act of 1996”), whenever so requested, an information holder shall give to another information holder such information, including personal information, in his or her possession, control or procurement regarding non-nationals, including applicants within the meaning of the Act of 1996, for the purposes of that Act or for the purposes of the administration of the law relating to the entry into and the removal from the State of non-nationals.

(2) The Minister for Social and Family Affairs may, for the purposes of the Social Welfare Acts F5 [ or the Civil Registration Act 2004 ] , request an information holder to furnish him or her with such information including, personal information, in his or her possession, control or procurement regarding non-nationals, including applicants within the meaning of the Act of 1996 and the information holder shall comply with any such request.

(3) Following the receipt of a request under subsection (1) or (2), the Minister, the Minister for Foreign Affairs, or a member of the Garda Síochána may withhold any information in his or her possession or control in the interest of national security or public policy (“ ordre public”) or where the furnishing of the information would be likely to prejudice the prevention, detection or investigation of offences or the apprehension or prosecution of offenders.

(4) In this section “an information holder” means a Minister of the Government, a local authority (for the purposes of the Local Government Act 2001 ), F6 [ the Child and Family Agency, ] the Garda Síochána or any other body established—

( a) by or under any enactment (other than the Companies Acts 1963 to 2001), or

( b) under the Companies Acts 1963 to 2001 in pursuance of powers conferred by or under any other enactment,

and financed wholly or partly by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government and a subsidiary of any such body.

Annotations:

Amendments:

F5

Inserted (18.08.2015) by Civil Registration (Amendment) Act 2014 (34/2014), s. 35, S.I. No. 357 of 2015.

F6

Substituted (1.01.2014) by Child and Family Agency 2013 (40/2013), s. 9 and, sch. 2 part 18 item 2, S.I. No. 502 of 2013.

Editorial Notes:

E7

Previous affecting provision: subs. (4) amended (1.01.2005) by Health Act 2004 (42/2004), s. 75 and sch. 6 part 25 item 2, S.I. No. 887 of 2004; substituted as per F-note above.

Approved port.

9

9.—(1) The Minister may prescribe ports to be approved ports for non-nationals arriving in the State from places or specified places outside the State for the purposes of the Aliens Order 1946 (S.R. & O., No. 395 of 1946) (“the Order”).

(2) A reference in the Order to an approved port shall be construed as a reference to an approved port prescribed under this section.

(3) Article 6(2) of, and the First Schedule to, the Order are hereby revoked.

Annotations:

Editorial Notes:

E8

Power pursuant to section exercised (19.09.2003) by Immigration Act 2003 (Approved Ports) Regulations 2003 (S.I. No. 445 of 2003), in effect as per reg. 1(2).

Amendment of Illegal Immigrants (Trafficking) Act 2000.

10

10.—Section 5(1) of the Illegal Immigrants (Trafficking) Act 2000 is hereby amended by the substitution of the following paragraph for paragraph ( d):

“( d) a refusal under Article 5 of the Aliens Order 1946 (S.R. and O. No. 395 of 1946),”.

Regulations.

11

11.—(1) The Minister may—

( a) by regulations provide, subject to the provisions of this Act, for any matter referred to in this Act as prescribed or to be prescribed, and

( b) in addition to any other power conferred on him or her to make regulations, make regulations generally for the purposes of, and for the purpose of giving full effect to, this Act.

(2) Regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) Every regulation made by the Minister under this Act shall be laid before both Houses of the Oireachtas as soon as may be after it is made, and, if a resolution annulling the regulation is passed by either such House within the next subsequent 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

Annotations:

Editorial Notes:

E9

Power pursuant to section exercised (3.02.2005) by Immigration Act 2003 (Removal Places of Detention) Regulations 2005 (S.I. No. 56 of 2005).

E10

Power pursuant to section exercised (19.09.2003) by Immigration Act 2003 (Approved Ports) Regulations 2003 (S.I. No. 445 of 2003), in effect as per reg. 1(2).

E11

Power pursuant to section exercised (19.09.2003) by Immigration Act 2003 (Removal Direction) Regulations 2003 (S.I. No. 446 of 2003), in effect as per reg. 1(2).

E12

Power pursuant to section exercised (19.09.2003) by Immigration Act 2003 (Carrier Liability) Regulations 2003 (S.I. No. 447 of 2003), in effect as per reg. 1(2).

E13

Previous affecting provision: power pursuant to section exercised (19.09.2003) by Immigration Act 2003 (Removal Places of Detention) Regulations 2003 (S.I. No. 444 of 2003); revoked (3.02.2005) by Immigration Act 2003 (Removal Places of Detention) Regulations 2005 (S.I. No. 56 of 2005), reg. 2.

Expenses.

12

12.—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.

13

13.—(1) This Act may be cited as the Immigration Act 2003.

(2) This Act shall come into operation on such day or days as, by order or orders made by the Minister, 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.

Annotations:

Editorial Notes:

E14

Power pursuant to subs. (2) exercised (19.09.2003) by Immigration Act 2003 (Commencement) Order 2003 (S.I. No. 414 of 2003).

2. The 19th day of September 2003 is fixed as the day on which the Immigration Act 2003 (No. 26 of 2003) (other than sections 7 and 8 of that Act) shall come into operation.

E15

Power pursuant to subs. (2) exercised (15.09.2003) by Immigration Act 2003 (Section 7) (Commencement) Order 2003 (S.I. No. 415 of 2003).

2. The 15th day of September 2003 is fixed as the day on which section 7 of the Immigration Act 2003 (No. 26 of 2003) shall come into operation.

E16

Power pursuant to subs. (2) exercised (11.08.2003) by Immigration Act 2003 (Section 8 Commencement) Order 2003 (S.I. No. 363 of 2003).

2. The 11th day of August 2003 is fixed as the day on which section 8 of the Immigration Act 2003 (No. 26 of 2003) shall come into operation.