S.I. No. 360/1997 - Dublin Convention (Implementation) Order, 1997

S.I. No. 360 of 1997.

DUBLIN CONVENTION (IMPLEMENTATION) ORDER, 1997

I, John O'Donoghue. T.D. Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by section 22 of the Refugee Act, 1996 (No. 17 of 1996), hereby order as follows:

1. (1) This Order may be cited as the Dublin Convention (Implementation) Order. 1997.

(2) This Order shall come into operation on the 1st day of September, 1997.

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

"the Act" means the Refugee Act, 1996 (No. 17 of 1996);

"appeals officer" means a person appointed by the Minister under section 22(4)(b) of the Act:,.

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

"application" means an application for asylum (within the meaning of section 22(10) of the Act):

"appointed officer" means an officer appointed by the Minister under section 22(4)(a) of the Act:

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

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

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

(2) In this Order—

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

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

3. (1) Where an application is made in the State or at the frontiers of the State it shall be forwarded to the appointed officer who shall determine whether the application—

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

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

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

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

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

(3) Subject to paragraph (4), where the appointed officer proposes to determine whether the application should be transferred to a convention country for examination, he or she shall, before making the determination, cause notice in writing of the proposal to be given to the applicant concerned (where possible in a language that the person understands) and the notice shall specify—

( a ) that the applicant may be interviewed in relation to the proposal, and

( b ) that the applicant may make representations in writing to the appointed officer in relation to any matter relevant to the proposal aforesaid.

(4) Paragraph (3) shall not apply in relation to an application if, within 5 working days from the date the receipt of the application by the appointed officer, he or she determines that the application should be examined in the State.

(5) An applicant who has been notified of a proposal under paragraph (3) may, not more than 5 working days from the date of sending of the notice, make representations in writing to the appointed officer and the appointed officer shall, before deciding the matter, take into consideration any representations duly made by or on behalf of the applicant under this paragraph in relation to the proposal.

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

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

(2) ( a ) The appointed officer may, for the purpose of making a determination under Article 3, interview or cause to be interviewed the applicant concerned.

( b ) An interview under subparagraph (a) shall, where necessary and possible, be conducted with the assistance of an interpreter and a record of the interview shall be kept by the appointed officer and a copy thereof shall be furnished to the applicant on request therefor.

(3) Without prejudice to Article 3(5), the applicant concerned or any other person concerned may. not more than 5 working days from the date of the holding of an interview under this Article, make representations in writing to the appointed officer in relation to any matter relevant to the making of a determination by him or her under the said Article 3 and the appointed officer shall take into consideration any representations duly made.

(4) ( a ) Where, following the making of an inquiry or a request under paragraph (1). a convention country communicates information to the appointed officer such information may only be used for the purpose of—

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

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

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

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

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

(ii) examining the application concerned, or

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

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

( d ) The appointed officer shall keep a record of any information communicated to him or her under subparagraph (a) in relation to an applicant until the expiration of 12 months from the date of such communication or until the Final determination of the application concerned, whichever is the later and, as soon as may be thereafter, the appointed officer shall cause such record to be destroyed.

(5) ( a ) Where information recorded pursuant to paragraph (4)(d ) is incomplete, inaccurate or misleading or should not have been disclosed by a convention country, the appointed officer shall, on request to him or her in that behalf, in writing, by the applicant to whom the information relates, amend the information so recorded—

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

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

(iii) by deleting the information so recorded.

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

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

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

(ii) as soon as may be, but not later than 2 weeks after the receipt by the appointed officer of the request, the appointed officer shall decide whether to accede to or refuse to accede to the request and shall cause notice in writing of his or her decision to be given to the applicant concerned.

( d ) Where information recorded pursuant to paragraph (2)(d ) is amended pursuant to paragraph (3), the appointed officer shall cause notice in writing of the amendment to be given to the convention country concerned as soon as may be after the date on which the amendment was effected.

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

( a ) leaves the State,

( b ) withdraws his or her application.

( c ) enters a convention country, and

( d ) lodges an application in that country,

then. if the State receives a request from the convention country to re-admit the applicant to the State, the appointed officer shall reply to the request within 8 days of such receipt and. if he or she accedes to the request, shall readmit the applicant to the State as soon as may be. but not later than one month from the date of the receipt of the request: and his or her application shall be deemed not to have been withdrawn and shall be dealt with accordingly.

(2) The appointed officer may refuse to accede to a request referred to in paragraph (1) if—

( a ) the applicant concerned has. at the time of the receipt of the request, been outside the State for a period of not less than 3 months, or

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

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

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

( b ) request the country to admit the applicant to its territory.

(2) A notice under subparagraph (1)(a) shall include a statement that the applicant concerned may appeal to the appeals officer under Article 7 against the determination aforesaid not more than 5 working days from the date of the determination.

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

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

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

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

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

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

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

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

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

(2) An appeal under this Article shall be initiated by the applicant concerned giving, not more than 5 working days from the date on which the determination concerned was made, a notice in writing to the appointed officer stating the intention of the applicant to appeal against the determination and the notice shall be accompanied by a statement of the facts and contentions on which the applicant intends to rely.

(3) The appointed officer shall furnish the appeals officer with a copy of the notice received by him or her under paragraph (2) and with copies of any documents, reports, or representations in writing submitted to him or her under Articles 3 or 4 in relation to the application concerned and an indication of the nature and source of any other information relating to the application which has come to the notice of the appointed officer in the course of the making of a determination by him or her under Article 2.

(4) The appeals officer may direct the appointed officer to make such inquiries and to furnish him or her with such further information as he or she considers necessary or expedient for the purpose of deciding an appeal under this Article.

(5) An applicant concerned may withdraw an appeal to the appeals officer by sending notice of withdrawal to the appeals officer.

(6) An appeal under this section shall be decided by the appeals officer in accordance with the criteria set out in Articles 4 to 8 of the Dublin Convention.

(7) Where the appeals officer sets aside the determination of the appointed officer, the appointed officer shall, as soon as may be. cause notice in writing of the decision of the appeals officer to be given to the applicant concerned and the application shall be examined in the State.

(8) Where the appeals officer affirms the determination of the appointed officer or where the applicant concerned withdraws his or her appeal, the appointed officer shall arrange for the removal of the applicant to the convention country in accordance with the provisions of Article 8.

8. (1) Subject to Article 6(3), whenever a convention country decides to accede to a request under Article 6(1)(b) to admit the applicant to its territory, the appointed officer shall cause notice in writing of the decision to be given to the applicant concerned and shall arrange for the removal of the applicant to that country, as soon as may be, but not later than one month after the decision.

(2) A notice under paragraph (1) shall require the applicant concerned to present himself or herself to such person and at such date, time and place as may be specified in the notice for the purpose of his or her removal to the convention country concerned.

(3) Where a convention country—

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

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

the relevant application shall be examined in the State.

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

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

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

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

the appointed officer shall consider the request and determine whether the State should accede to the request.

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

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

(4) Where the appointed officer determines that the State should accede to any such request he or she shall cause notice in writing of the determination to be given to the convention country concerned, as soon as may be. but not later than three months after the date of the receipt of the request, and shall arrange for the admission of the applicant to the State.

(5) Where the applicant is admitted to the State under this Article. his or her application shall be examined in the State.

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

(7) The appointed officer may, at his or her discretion, refuse to admit the applicant concerned to the State—

( a ) after the expiration of 1 month from the date of the sending of a notice under paragraph (4) relating to the applicant. or

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

whichever is the later.

10. Where—

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

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

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

11. (1) If, in the course of the investigation of an application by the Minister, the applicant concerned leaves the State and goes to and remains in a convention country without lawful authority, then, if the State receives a request from the convention country to readmit the applicant to the State, the appointed officer shall reply to the request within 8 days of such receipt and, if he or she accedes to the request shall, within one month of the receipt of the request, readmit the applicant to the State for the purpose of the completion of the investigation of the application.

(2) If, in the course of the investigation of an application by the Minister, the applicant concerned -

( a ) leaves the State,

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

( c ) enters a convention country, and

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

then, if the State receives a request from the convention country to readmit the applicant to the State the appointed officer shall reply to the request within 8 days of such receipt and, if he or she accedes to the request, shall readmit the applicant to the State for the purpose of the completion of the investigation of the application as soon as may be, but not later than one month, after the date of the receipt of the request.

(3) If, following the refusal of an application under section 17 of the Act, the applicant concerned leaves the State and enters a convention country without the permission of that country, then, if the State receives a request from the convention country to readmit the applicant to the State, the appointed officer shall reply to the request within 8 days of such receipt and, if he or she accedes to the request, re-admit the applicant as soon as may be. but not later than one month. after the date of the receipt of the request.

(4) The State may refuse to accede to a request referred to in paragraph (1). (2) or (3) if—

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

( b ) the applicant concerned has. at the time of the receipt of such a request, been outside the State for a period of not less than 3 months.

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

12. (1) Where, in the course of the investigation of an application made not more than 6 months previously by the Minister, it appears that—

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

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

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

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

then, unless the appointed officer has, before the carrying out of such investigation as aforesaid, determined that the application should be examined in the State pursuant to paragraph (d) of Article 3 notwithstanding the fact that the application could, in accordance with paragraph (a), (b) or (c) of that Article, be transferred to a convention country for examination, the application shall be deemed to be an application to which that Article applies and shall be referred to the appointed officer to be dealt with accordingly.

13. (1) The Minister, the appointed officer and the appeals officer shall, whenever so requested by a convention country, furnish to the country such information in relation to an application as he or she may have in his or her possession or control:

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

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

( b ) examining the application, or

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

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

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

( b ) the identity and travel papers issued to the applicant,

( c ) such other information as may be necessary for establishing the identity of the applicant concerned,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(iii) by deleting the information so recorded.

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

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

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

(ii) as soon as may be, but not later than 2 weeks after the receipt by the appointed officer of the request, the appointed officer shall decide whether to accede to or refuse to accede to the request and shall cause notice in writing of his or her decision to be given to the applicant concerned or the convention country concerned as the case may be.

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

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

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

15. (1) All notices, representations in writing or documents required or authorised by this Order to be sent or given to any person may be deemed to have been duly sent or given if sent by registered post and directed—

( a ) in the case of the appointed officer, to the Appointed Officer (Dublin Convention), Department of Justice. Equality and Law Reform, Dublin.

( b ) in the case of an applicant, to his or her usual or last known address.

( c ) in the case of any other person, to his or her usual or last known address or place of business.

(2) Any such notice, representation in writing or document if sent or given to the authorised representative of a person shall be deemed to have been sent or given to that person.

GIVEN under my Official Seal, this 29th day of August, 1997

John O'Donoghue T.D.,

Minister for Justice, Equality and

Law Reform

EXPLANATORY NOTE

This Order gives effect to the State's obligations as a party to the Dublin Convention. Among other things, it puts in place procedures for determining whether an application for asylum should in accordance with the terms of the Dublin Convention be dealt with in the State or in another Convention country.