European Communities (Eligibility For Protection) Regulations, 2006

• Jurisdiction: Ireland

S.I. No. 518 of 2006
European Communities (Eligibility for Protection) Regulations 2006
I, Michael McDowell, Minister for Justice, Equality and Law Reform, 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 effect to Council Directive 2004/83/EC1 of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, hereby make the following regulations:
	Citation and commencement	1. (1) These Regulations may be cited as the European Communities (Eligibility for Protection) Regulations 2006.
(2) These Regulations shall come into operation on 10 October 2006.
	Interpretation	2. (1) In these Regulations—
“1996 Act” means the Refugee Act 1996 ;
“1999 Act” means the Immigration Act 1999 ;
“actors of persecution or serious harm” include—
(a) a state,
(b) parties or organisations controlling a state or a substantial part of the territory of that state, or
(c) non-state actors, if it can be demonstrated that the actors mentioned in paragraphs (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm;
“application for protection” means an application—
(a) under section 8 of the 1996 Act from a person for a declaration as a refugee, or
(b) from a person, who is not a national of a Member State and who does not qualify as a refugee, to be recognised as a person eligible for subsidiary protection under these Regulations;
“application for subsidiary protection” shall be construed in accordance with Regulation 4;
“Council Directive” means Council Directive 2004/83/EC1 of 29 April 2004;
“country of origin” means the country or countries of nationality or, for stateless persons, of former habitual residence;
“declaration” shall be construed in accordance with section 17 of the 1996 Act;
“Member State” means a Member State of the European Union;
“Minister” means the Minister for Justice, Equality and Law Reform;
“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 as defined in these regulations,
(d) to whom regulation 13 of these regulations does not apply, and
(e) is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country;
“protection” (except in the definition of “protection against persecution or serious harm” means protection as a refugee or as a person eligible for subsidiary protection in the State;
“protection against persecution or serious harm” shall be regarded as being generally provided where reasonable steps are taken by a state or parties or organisations, including international organisations, controlling a state or a substantial part of the territory of that state to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, where the applicant has access to such protection;
“protection applicant” means a person who has made an application for protection in the State and whose application has not been—
(a) determined,
(b) withdrawn or deemed to be withdrawn, or
(c) transferred to another country;
“protection decision” has the meaning given to it by Regulation 3, and “protection decision-maker” shall be construed accordingly;
“refugee” has the meaning given to it by section 2 of the 1996 Act;
“serious harm” consists of—
(a) death penalty or execution,
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin, or
(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
(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. 3. (1) Subject to paragraph (2), these Regulations apply to the following decisions (in these Regulations referred to as “protection decisions”) made on or after the coming into operation of these Regulations:
(a) a recommendation under section 13(1) of the 1996 Act;
(b) an affirmation under paragraph (a) or a recommendation under paragraph (b) of section 16(2) of that Act;
(c) the notification of an intention to make a deportation order under section 3(3) of the 1999 Act in respect of a person to whom subsection (2)(f) of that section relates;
(d) a determination by the Minister under Regulation 4(4) or 4(5).
(2) Nothing in these Regulations shall be taken to extend or reduce the functions of the Refugee Applications Commissioner or the Refugee Appeals Tribunal (within the meaning of the 1996 Act) in determining whether a person is a refugee.
	Application for subsidiary protection	4.(1) (a) A notification of a proposal under section 3(3) of the Act of 1999 shall include a statement that, where a person to whom section 3(2)(f) of that Act applies considers that he or she is a person eligible for subsidiary protection, he or she may, in addition to making representations under section 3(3)(b) of that Act make an application for subsidiary protection to the Minister within the 15 day period referred to in the notification.
(b) An application for subsidiary protection shall be in the form in Schedule 1 or a form to the like effect.
(2) The Minister shall not be obliged to consider an application for subsidiary protection from a person other than a person to whom section 3(2)(f) of the 1999 Act applies or which is in a form other than that mentioned in paragraph (1)(b).
(3) In determining whether a person is eligible for subsidiary protection, the Minister—
(a) shall take into consideration, in addition to matters mentioned in Regulation 5, any particulars furnished by the applicant under paragraph (1)(b); and
(b) may take into consideration—
(i) the information or documentation taken into consideration in relation to the determination of the applicant's application for a declaration, and
(ii) such other information relevant to the application as is within the Minister's knowledge.
(4) Where the Minister determines that an applicant is a person eligible for subsidiary protection, the Minister shall grant him or her permission to remain in the State.
(5) Where the Minister determines that an applicant is not a person eligible for subsidiary protection, the Minister shall proceed to consider, having regard to the matters referred to in section 3(6) of the 1999 Act, whether a deportation order should be made in respect of the applicant.
(6) Nothing in these regulations shall affect the discretionary power of the Minister under section 3 of the 1999 Act.
	Assessment of facts and circumstances	5. (1) The following matters shall be taken into account by a protection decision-maker for the purposes of making a protection decision:
(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application for protection, including laws and regulations of the country of origin and the manner in which they are applied;
(b) the relevant statements and documentation presented by the protection applicant including information on whether he or she has been or may be subject to persecution or serious harm;
(c) the individual position and personal circumstances of the protection applicant including factors such as background, gender and age, so as to assess whether on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;
(d) whether the protection applicant's activities since leaving his or her country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for protection as a refugee or a person eligible for subsidiary protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country;
(e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he or she could assert citizenship.
(2) The fact that a protection applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, shall be regarded as a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated, but compelling reasons arising out of previous persecution or serious harm alone may nevertheless warrant a determination that the applicant is eligible for protection.
(3) Where aspects of the protection applicant's statements are not supported by documentary or other evidence, those aspects shall not need confirmation when the following conditions are met—
(a) the applicant has made a genuine effort to substantiate his or her application;
(b) all relevant elements at the applicant's disposal have been submitted and a satisfactory explanation regarding any lack of other relevant elements has been given;
(c) the applicant's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant's case;
(d) the...