|
|
|
Amendment of Act of 2015 - insertion of sections 51A to 51C
|
| |
121. The Act of 2015 is amended by the insertion of the following sections after section 51—
|
|
| |
“Return order
|
|
| |
51A. (1) Subject to section 50A, the Minister shall by order (in this Act referred to as a ‘return order’) require a person whose application for international protection has been determined under section 21(11) to be inadmissible to leave the State.
|
|
| |
(2) Where subsection (1) applies, the person specified in the return order may be returned:
|
|
| |
(a) where the circumstances referred to in section 21(2)(a) apply in relation to him or her, to the Member State that has granted refugee status or subsidiary protection to the person;
|
|
| |
(b) where the circumstances referred to in section 21(2)(b) apply in relation to him or her, to the first country of asylum for the person;
|
|
| |
(c) where the circumstances referred to in section 21(2)(c) apply in relation to him or her, to the safe third country that is a safe country for the person.
|
|
| |
(3) Where the Minister makes a return order, he or she shall notify the person specified in the order and his or her legal representative (if known) of the making of the order.
|
|
| |
(4) A notification under subsection (3) shall be in a language that the person concerned may reasonably be supposed to understand, where—
|
|
| |
(a) the person is not assisted or represented by a legal representative, and
|
|
| |
(b) legal assistance is not available to the person.
|
|
| |
(5) A return order shall be in the form prescribed or in a form to the like effect.
|
|
| |
Return of person subject of return order
|
|
| |
51B. (1) An immigration officer or a member of the Garda Síochána may, for the purpose of facilitating the return of a person the subject of a return order, by notice in writing require the person to comply with one or more of the following conditions:
|
|
| |
(a) that he or she present himself or herself to such immigration officer or member of the Garda Síochána at such date, time and place as may be specified in the notice;
|
|
| |
(b) where, and only for so long as, it is reasonably necessary to facilitate his or her return, that he or she surrender his or her passport and any other travel document that he or she holds;
|
|
| |
(c) that he or she co-operate in any way necessary to enable an immigration officer or a member of the Garda Síochána to obtain a passport or other travel document, travel ticket or other document required for the purpose of such return;
|
|
| |
(d) that he or she reside or remain in a particular place in the State pending his or her return.
|
|
| |
(2) A notice under subsection (1) shall be in a language that the person concerned may reasonably be supposed to understand.
|
|
| |
(3) A person the subject of a return order shall comply with a requirement under subsection (1).
|
|
| |
(4) Where an immigration officer or a member of the Garda Síochána considers that there is a significant risk of a person the subject of a return order absconding, the officer or member (‘arresting officer or member’) may, for the purpose of facilitating the return of the person, arrest the person without warrant and a person so arrested may be taken by an immigration officer or a member of the Garda Síochána to a prescribed place (in this section referred to as a ‘place of detention’) and detained—
|
|
| |
(a) in the place of detention under warrant of the arresting officer or member and in the custody of the officer of the Minister or member of the Garda Síochána for the time being in charge of the place, and
|
|
| |
(b) for a period not exceeding 7 days.
|
|
| |
(5) For the purpose of arresting a person under subsection (4), an immigration officer or member of the Garda Síochána may enter (if necessary by use of reasonable force) and search any premises (including a dwelling) where the person is or where the immigration officer or member, with reasonable cause, suspects the person to be and, where the premises is a dwelling, the immigration officer or member shall not, unless acting with the consent of an occupier of the dwelling or other person who appears to the immigration officer or member to be in charge of the dwelling, enter that dwelling unless—
|
|
| |
(a) the person ordinarily resides at the dwelling, or
|
|
| |
(b) he or she believes on reasonable grounds that the person is within the dwelling.
|
|
| |
(6) The matters to which an officer or member referred to in subsection (4) may have regard, in considering for the purposes of that subsection whether there is a significant risk of a person the subject of a return order absconding, include the following:
|
|
| |
(a) whether the person, in the purported discharge of his or her duty to establish his or her identity, has misrepresented or omitted facts, whether or not by the use of false documents;
|
|
| |
(b) whether the person has failed to comply with a requirement under subsection (1);
|
|
| |
(c) whether the person, having been informed of arrangements for his or her return, has failed to co-operate with those arrangements;
|
|
| |
(d) whether the person has explicitly expressed an intention not to comply with arrangements for his or her return;
|
|
| |
(e) whether the person has previously failed to comply with the law of the State, or of another state, relating to the entry or presence of foreign nationals in the State or, as the case may be, that state.
|
|
| |
(7) Subject to subsection (8), subsections (4) and (5) shall not apply to a person the subject of a return order who is under the age of 18 years.
|
|
| |
(8) If and for so long as an immigration officer or member of the Garda Síochána concerned has reasonable grounds for believing that the person the subject of a return order is not under the age of 18 years, the provisions of subsections (4) and (5) shall apply as if the person had attained the age of 18 years.
|
|
| |
(9) The Minister may, in order to facilitate the return of a person the subject of a return order, issue to the person a laissez-passer or such other travel document as the Minister considers appropriate.
|
|
| |
(10) An immigration officer or member of the Garda Síochána may, for the purpose of the return, detain a person the subject of a return order in accordance with subsection (11) and place him or her on a vehicle that is about to leave the State and the person shall be deemed to be in lawful custody while so detained and until the vehicle leaves the State.
|
|
| |
(11) A person who is detained under subsection (10) may, for the purposes of that subsection, be detained—
|
|
| |
(a) for a period not exceeding 7 days, in a place of detention,
|
|
| |
(b) for a period or periods each not exceeding 12 hours, in a vehicle, for the purpose of bringing the person to the port from which the vehicle referred to in subsection (10) is due to leave the State, or
|
|
| |
(c) for a period or periods each not exceeding 12 hours, within the port referred to in paragraph (b).
|
|
| |
(12) The master or person in charge of a vehicle that is about to leave the State shall, if so directed by an immigration officer or member of the Garda Síochána, receive a person the subject of a return order on board the vehicle and afford the person so received proper accommodation and maintenance during the journey concerned.
|
|
| |
(13) A reference in this section and section 51C to the return of a person is a reference to his or her return in accordance with section 51A(2).
|
|
| |
Period of validity of return order
|
|
| |
51C. (1) A person the subject of a return order may, while the order is in effect, be returned in accordance with section 51A(2).
|
|
| |
(2) A return order shall, other than where subsection (3) or (4) applies, remain in effect for a period of 6 months from the date on which notification (referred to in section 51A(3)) of the return order is sent.
|
|
| |
(3) Where a person the subject of the return order absconds in the period referred to in subsection (2), the order shall remain in effect for a period of 12 months from the date on which notification (referred to in section 51A(3) ) of the return order is sent.
|
|
| |
(4) Where a person the subject of the return order brings an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) of the return order and the High Court suspends the operation of the order pending the determination of the application, the order shall remain in effect for a period of 6 months from the date of the final determination (including where notice of appeal is given, the final determination of the appeal or any further appeal therefrom or the withdrawal of the appeal) of the application concerned.
|
|
| |
(5) Where—
|
|
| |
(a) a return order ceases in accordance with this section to have effect on a particular date (in this section referred to as the ‘relevant date’), and
|
|
| |
(b) by the relevant date the person the subject of the order has not been returned,
|
|
| |
he or she shall, notwithstanding that his or her application for international protection has been determined under section 21(11) to be inadmissible, be deemed to have made, on the date immediately following the relevant date, an application for international protection in accordance with section 15, and subject to this section, the provisions of this Act shall, with any necessary modifications, apply accordingly.
|
|
| |
(6) The Minister shall as soon as practicable on or after the date immediately following the relevant date—
|
|
| |
(a) send the person concerned, and his or her legal representative (if known), a notice in writing—
|
|
| |
(i) informing him or her of the effect of subsection (5), and
|
|
| |
(ii) inviting the person to complete, in respect of his or her application referred to in subsection (5), the form prescribed under section 15(5),
|
|
| |
and
|
|
| |
(b) give or cause to be given to the person a statement under section 18(1).”.
|
