International Protection Act 2015

20.

Detention of applicant

20.      (1) An immigration officer or a member of the Garda Síochána may arrest an applicant without warrant if that officer or member suspects, with reasonable cause, that the applicant—

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

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

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

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

(e) has acted or intends to act in a manner that would undermine—

(i) the system for granting persons international protection in the State, or

(ii) any arrangement relating to the Common Travel Area,

or

(f) without reasonable excuse—

(i) has destroyed his or her identity or travel document, or

(ii) is or has been in possession of a forged, altered or substituted identity document,

and an applicant so arrested may be taken to and detained in a prescribed place (in this section referred to as a “place of detention”).

(2) A person detained under subsection (1) shall, as soon as practicable, be brought before a judge of the District Court assigned to the District Court district in which the person is being detained.

(3) Where a person is brought before a judge of the District Court under subsection (2), the judge may—

(a) subject to subsection (4), and if satisfied that one or more of the paragraphs of subsection (1) apply in relation to the person, commit the person concerned to a place of detention for a period not exceeding 21 days from the time of his or her detention, or

(b) without prejudice to subsection (4), release the person and make such release subject to conditions, including conditions requiring him or her to—

(i) reside or remain in a specified district or place in the State,

(ii) report at specified intervals to a specified Garda Síochána station, or

(iii) surrender any passport or other travel document that he or she holds.

(4) If, at any time during the detention of a person under this section, an immigration officer or a member of the Garda Síochána is of the opinion that none of the paragraphs of subsection (1) applies in relation to the person, the person shall, as soon as practicable, be brought before a judge of the District Court assigned to the District Court district in which the person is being detained and, if the judge is satisfied that none of the paragraphs of subsection (1) applies in relation to the person, the judge shall release the person.

(5) Where a person is released from a place of detention subject to one or more of the conditions referred to in subsection (3)(b), a judge of the District Court assigned to the District Court district in which the person’s dwelling place is situated may, on the application of the person, an immigration officer or a member of the Garda Síochána, if the judge considers it appropriate to do so, vary, revoke or add a condition to the release, and a reference in this section to a condition referred to in subsection (3)(b) shall be construed as including a reference to such a condition as varied or added to under this subsection.

(6) Subject to subsection (7), subsections (1) to (5) shall not apply to a person who has not attained the age of 18 years.

(7) (a) Subsections (1), (2), (3), (4) and (5) shall apply to a person who has indicated that he or she has not attained the age of 18 years if and for so long as—

(i) not fewer than two members of the Garda Síochána or two immigration officers, or

(ii) a member of the Garda Síochána and an immigration officer,

on reasonable grounds, believe that the person has attained that age.

(b) Subsections (1), (2), (3), (4) and (5) shall apply to a person who has indicated that he or she has not attained the age of 18 years—

(i) if and for so long as a member of the Garda Síochána or an immigration officer on reasonable grounds, believes that the person has attained that age, and

(ii) if—

(I) following the conduct of an examination under section 25 , the person who conducted the examination is of the opinion that the person has attained that age, or

(II) the person refuses to undergo such an examination.

(8) Where an unmarried person who has not attained the age of 18 years is in the custody of another person (whether his or her parent or a person acting in loco parentis or any other person) and that other person is detained under the provisions of this section, the immigration officer or the member of the Garda Síochána concerned shall, without delay, notify the Child and Family Agency of the detention and of the circumstances thereof.

(9) A member of the Garda Síochána may arrest without warrant and detain, in a place of detention, a person who, in the member’s opinion, has failed to comply with a condition imposed by the District Court under subsection (3)(b).

(10) A person detained under subsection (9) shall be brought as soon as practicable before a judge of the District Court assigned to the District Court district in which the person is being detained, and subsections (3), (4) and (5) shall apply to such person detained under subsection (9) as they apply to a person detained under subsection (1), subject to the modifications that references in those subsections to the judge’s being satisfied that one or more of the paragraphs of subsection (1) apply shall be construed as a reference to his or her being satisfied that the person has failed to comply with a condition referred to in subsection (3)(b), and any other necessary modifications.

(11) If a judge of the District Court is satisfied in relation to a person brought before him or her under subsection (10) that the person has complied with the condition referred to in subsection (3)(b), the judge shall order the release of the person.

(12) Where a person is detained under subsection (3) or (10), a judge of the District Court assigned to the District Court district in which the person is being detained may, if satisfied that one or more of the paragraphs of subsection (1) applies in relation to the person, commit the person for further periods (each period being a period not exceeding 21 days) pending the determination of the person’s application for international protection.

(13) (a) If, at any time during the detention of a person under this section, the person indicates a desire to leave the State, he or she shall, as soon as practicable, be brought before a judge of the District Court assigned to the District Court district in which the person is being detained.

(b) The judge referred to in paragraph (a) shall, if satisfied that—

(i) the person does not wish to proceed with his or her application for international protection and wishes to leave the State, and

(ii) the person has obtained, or has been given the opportunity of obtaining or being provided with, professional legal advice on the consequences of his or her decision not to proceed with his or her application for international protection,

order the Minister to arrange for the removal of the person from the State, and may include in the order such ancillary or consequential provisions as he or she may determine.

(c) On the making of the order referred to in paragraph (b), the person shall be deemed to have withdrawn his or her application for international protection or, as the case may be, appeal under section 41 .

(14) A person detained under this section is entitled to—

(a) consult a legal representative,

F2 [ (aa) seek legal assistance and legal representation,

(ab) be informed of

(i) his or her entitlement referred to in paragraph (aa) , and

(ii) his or her right to make a complaint under Article 40.4.2 of the Constitution and the procedures for doing so,

(ac) be given a copy of the warrant under which he or she is being detained, ]

(b) have notification of his or her detention, the place of his or her detention and every change in that place sent to the High Commissioner and to another person reasonably nominated by the detained person for that purpose, and

(c) the assistance of an interpreter for the purpose of consultation with a legal representative under paragraph (a) and for the purpose of any appearance before a court under this section.

(15) An immigration officer or, as the case may be, a member of the Garda Síochána detaining a person under subsection (1) or (9) shall, without delay, inform the person or cause him or her to be informed, in a language that he or she may reasonably be supposed to understand—

(a) that he or she is being detained under this section,

(b) that he or she shall, as soon as practicable, be brought before a court which shall determine whether or not he or she should be committed to a place of detention or released pending a determination of his or her application for international protection,

(c) of his or her entitlements under subsection (14), and

(d) that he or she is entitled to leave the State at any time during the period of his or her detention and, if he or she indicates a desire to do so, he or she shall, in accordance with subsection (13), be brought before a court as soon as practicable, and the court may make such orders as may be necessary for his or her removal from the State.

(16) The immigration officer or, as the case may be, the member of the Garda Síochána concerned shall also explain to a person detained under subsection (1) or (9), in a language that the person may reasonably be supposed to understand, that, if he or she does not wish to exercise a right specified in subsection (14) immediately, he or she shall not be precluded thereby from doing so later.

(17) The immigration officer or, as the case may be, the member of the Garda Síochána concerned, shall notify the Minister and, if the person detained has appealed under section 41 , the Tribunal, of the detention or release of a person under this section.

(18) The chief international protection officer or, as the case may be, the Tribunal, shall ensure that the examination of an application for international protection or the consideration of an appeal under section 41 of a person detained under subsection (1) or (9) shall be dealt with as soon as may be and, if necessary, before any such application or appeal of a person not so detained.

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

(20) In this section—

“arrangement relating to the Common Travel Area” means an arrangement between the Government and the government of the United Kingdom of Great Britain and Northern Ireland relating to the lawful movement of persons between Common Travel Area territories;

“Common Travel Area territory” means the State, the United Kingdom, the Channel Islands or the Isle of Man;

“substituted identity document” means an identity document that does not relate to the person who is or has been in possession of the document and which the person in possession of the document has used or intends or intended to use for the purposes of establishing identity;

“United Kingdom” means the United Kingdom of Great Britain and Northern Ireland.

Annotations:

Amendments:

F2

Inserted (30.06.2018) by European Communities (Reception Conditions) Regulations 2018 (S.I. No. 230 of 2018), reg. 29(b), in effect as per reg. 1(2).

Editorial Notes:

E15

Power pursuant to subs. (1) exercised (31.12.2016) by International Protection Act 2015 (Places of Detention) Regulations 2016 (S.I. No. 666 of 2016), in effect as per reg. 1(2).