European Union (Subsidiary Protection) Regulations 2013.

• Statutory Instrument No.: 426/2013
• Published date: 15 November 2013

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 15th November, 2013.

I, ALAN SHATTER, Minister for Justice and Equality, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving further effect to Council Directive 2004/83/EC of 29 April 20041 hereby make the following regulations:

Citation and commencement

1. (1) These Regulations may be cited as the European Union (Subsidiary Protection) Regulations 2013.

(2) These Regulations shall come into operation on 14 November 2013.

Interpretation

2. (1) In these Regulations—

“Act of 1996” means the Refugee Act 1996 ;

“Act of 1999” means the Immigration Act 1999 ;

“application” means an application for a subsidiary protection declaration made in accordance with Regulation 3(1), or an application that is deemed, under paragraph (2) or (3) of Regulation 3, to be such an application, and “applicant” shall be construed accordingly;

“civil partner” means a civil partner within the meaning of section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ;

“Commissioner” shall be construed in accordance with section 6 of the Act of 1996;

“Council Directive” means Council Directive 2004/83/EC of 29 April 20041;

“country of origin” means the country or countries of nationality or, for stateless persons, of former habitual residence;

“date of commencement” means the date on which these Regulations come into operation;

“free legal assistance” means legal aid or legal advice, within the meaning of the Civil Legal Aid Act 1995 ;

“High Commissioner” means the United Nations High Commissioner for Refugees;

“information” means information in the form of a document (including a thing) or in any other form;

“interviewer” means a member of the staff of the Commissioner, or a person with whom the Minister has entered into a contract for services under Regulation 30(1), to whom the Commissioner has delegated the function of interviewing an applicant under Regulation 5;

“legal representative” means a solicitor or a barrister;

“Minister” means the Minister for Justice and Equality;

“person eligible for subsidiary protection” means a person—

(a) who is not a national of a Member State,

(b) who does not qualify as a refugee,

(c) in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, would face a real risk of suffering serious harm and who is unable or, owing to such risk, unwilling to avail himself or herself of the protection of that country, and

(d) who is not excluded from being eligible for subsidiary protection under Regulation 17;

“protection” (except in the definition of “protection in the State”) shall be construed in accordance with Regulation 16;

“protection in the State” means protection in the State either—

(a) as a refugee on the basis of a declaration given by the Minister under section 17 of the Act of 1996, or

(b) as a person eligible for subsidiary protection on the basis of a subsidiary protection declaration;

“qualified person” means a person who is a person eligible for subsidiary protection and in relation to whom a subsidiary protection declaration is in force;

“Regulations of 2006” means the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006 ) as amended by the European Communities (Eligibility for Protection) (Amendment) Regulations 2011 ( S.I. No. 405 of 2011 );

“refugee” has the meaning given to it by section 2 of the Act of 1996;

“serious harm” means—

(a) death penalty or execution,

(b) torture or inhuman or degrading treatment or punishment of a person in his or her country of origin, or

(c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in a situation of international or internal armed conflict;

“subsidiary protection declaration” means a subsidiary protection declaration given by the Minister under Regulation 20;

“torture” has the meaning it has in section 1 (as amended by section 186 of the Criminal Justice Act 2006 ) of the Criminal Justice (United Nations Convention Against Torture) Act 2000 ;

“Tribunal” means the Refugee Appeals Tribunal established by section 15 of the Act of 1996.

(2) A word or expression that is used in these Regulations and is also used in the Council Directive shall have in these Regulations the same meaning as it has in the Council Directive unless the contrary intention appears.

Application for subsidiary protection declaration

3. (1) An application for a subsidiary protection declaration—

(a) may be made only by a person—

(i) who is in the State, and

(ii) subject to paragraph (4), to whom a notice under section 17(5) (as amended by Regulation 34) of the Act of 1996 has been sent,

and

(b) shall be—

(i) made within the period specified in the notice referred to in subparagraph (a), and

(ii) addressed to the Commissioner and made in writing, in the form set out in Schedule 1 or a form to the like effect.

(2) Where an application for subsidiary protection under the Regulations of 2006 was made, before the date of commencement, in accordance with Regulation 4 of those Regulations and, by that date—

(a) the application has not been withdrawn, and

(b) the Minister has not made a final decision in respect of that application,

the application shall, subject to paragraph (4), be deemed to be an application for a subsidiary protection declaration made in accordance with paragraph (1) and these Regulations, and not the Regulations of 2006, shall apply accordingly.

(3) Where the Minister has, before the date of commencement, sent a person a notification referred to in Regulation 4(1)(a) of the Regulations of 2006 and, by that date, the 15 day period specified in the notification has not expired, then, notwithstanding Regulation 32, an application for subsidiary protection under the Regulations of 2006 made by the person within that period and in accordance with Regulation 4 of the Regulations of 2006 shall, subject to paragraph (4), be deemed to be an application for a subsidiary protection declaration made in accordance with paragraph (1) and these Regulations, and not the Regulations of 2006, shall apply accordingly.

(4) Where the Minister gives a person consent under section 17(7) of the Act of 1996 to make a subsequent application for a declaration under that Act, and that person makes such an application—

(a) the person may not make an application for a subsidiary protection declaration unless a notice under section 17(5) of the Act of 1996 in respect of that subsequent application is sent to him or her,

(b) an application for a subsidiary protection declaration made by the person under paragraph (1), or deemed under paragraph (2) or (3) to have been made by him or her, shall be deemed to have been withdrawn, and

(c) an appeal to the Tribunal by the person under Regulation 8 shall be deemed to have been withdrawn.

(5) The Minister shall, as soon as practicable after the date of commencement, give each person to whom paragraph (2) or (3) applies a statement in writing explaining the effect of these Regulations, and the procedures under which his or her application for a subsidiary protection declaration will be dealt with.

(6) Where it appears to the Health Service Executive that an application for a subsidiary protection declaration should be made by or on behalf of a person under the age of 18 years who is not in the custody of any person, the Health Service Executive shall arrange for the appointment of an employee of the Health Service Executive or such other person as it may determine to make an application on behalf of the child and to act on behalf of the child in relation to his or her application.

(7) Where a person under the age of 18 years who is not in the custody of any person is deemed under paragraph (2) or (3) to be an applicant for a subsidiary protection declaration, the Health Service Executive shall arrange for the appointment of an employee of the Health Service Executive or such other person as it may determine to act on behalf of the child in relation to his or her application.

Leave to remain in State

4. (1) Subject to the provisions of this Regulation, an applicant shall be entitled to remain in the State, until the date on which—

(a) his or her application or his or her appeal to the Tribunal, is withdrawn or deemed to be withdrawn under Regulation 7 or 9, as the case may be, or

(b) the Minister, as the case may be—

(i) gives the applicant a subsidiary protection declaration under Regulation 20(1), or

(ii) sends to the applicant a notice under Regulation 20(5).

(2) Subject to paragraphs (4) and (5), the Commissioner shall give or cause to be given to an applicant a temporary residence certificate (in this Regulation referred to as “a certificate”), which certificate shall contain the following particulars:

(a) the name of the person,

(b) a photograph of the person,

(c) the date on which the person’s application was received by the Commissioner,

(d) the stated nationality of the person,

(e) the sex of the person,

(f) the date of issue,

(g) the date of expiry,

(h) a unique number,

(i) a statement that the certificate is the property of the Minister, and

(j) a statement that the certificate is not a document establishing the nationality or identity of the person.

(3) A certificate shall remain the property of the Minister and the person to whom it is given shall surrender it to the Commissioner when his or her entitlement to remain in the State under paragraph (1) has ceased.

(4) Where an application is one to which paragraph (2) or (3) of Regulation 3 applies—

(a) paragraph (2) shall not apply, and

(b) the Minister shall give...