Immigration law in Ireland-an introduction

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There are two types of migration to Ireland:

  1. Involuntary migration
  2. Voluntary migration

There are many legal instruments relevant to both types of migration but Ireland is a dualist State.

This means international agreements are only part of Irish law when the Oireachtas has legislated to give effect to any particular international agreement. Unincorporated international agreements have persuasive rather than binding effect, therefore.

Involuntary migration

The international law effective with regard to involuntary migration includes the Convention relating to the status of refugees 1951 which has been given effect in Ireland in the Refugee Act 1996 which was replaced by the International Protection Act 2015.

The Convention defines a refugee by reference to 5 key elements:

  1. Alienage
  2. A well-founded fear
  3. Persecution
  4. Convention nexus (race, religion, nationality, political opinion or membership of a particular social group)
  5. Unable or unwilling, by reason of such fear, to avail of national protection or return to former habitual residence

The Convention relating to the status of Refugees 1951 provides the grounds for exclusion from refugee status and the cessation of refugee status.

EU legal framework

The EU legal framework is also relevant regarding involuntary migration.

This framework covers visas, asylum, immigration and other policies related to the free movement of persons.

The framework also provides the Common European Asylum System (CEAS) which provided key instruments of secondary legislation which covers

  • Qualification
  • Procedures
  • Reception conditions
  • “Dublin” transfers

The EU legal framework includes the Qualification Directive 2004/83/EC which sets out who qualifies for international protection. This international protection has two parts

  1. Refugee protection and
  2. Subsidiary protection which concerns a person about whom substantial grounds are shown believing the person would be at risk of serious harm.

Serious harm has three elements:

  • Death penally or execution
  • Torture or inhuman or degrading treatment/punishment
  • Serious threat to life

The EU legal framework also contains the Procedures Directive 2005/85/EC. This directive provides basic procedural guarantees regarding rights and obligations of applicants during procedure, examination of applicants at first instance, appeals and procedures for withdrawing refugee status.

There is also the Reception Conditions Directive 2003/9/EC which provides minimum rights to information, documentation, material reception condition but Ireland has not opted in to this directive.

The EU legal framework also contains the Dublin III Regulation (604/2013) which concerns the hierarchy of which member state is responsible for examining an application for international protection.

Voluntary migration

International legal framework

This framework includes

  1. The Universal Declaration of Human Rights (UDHR)
  2. Convention against torture (CAT)
  3. Convention on the Rights of the Child (CRC)
  4. And several other Conventions

EU legal framework

The EU legal framework regarding voluntary migration includes

  • European Convention on Human Rights 1950 and
  • European Convention on Human Rights Act 2003
  • Several international and European legal instruments of relevance to voluntary and involuntary migrants.

Conclusion

From an Irish law perspective the key question to ask is which legal instrument has been given full effect in Irish law.

Domestic immigration legislation

  • Irish Nationality and Citizenship Acts 1956 – 2004
  • Immigration Act 1999
  • Illegal Immigrants (Trafficking) Act 2000
  • Immigration Act 2003
  • Immigration Act, 2004, and Statutory Instruments made thereunder, in particular S.I. No. 473/2014
  • Immigration Act 2004 (Visas) Order 2014, as amended by S.I. No. 513/2015 and S.I. No. 264/2017.
  • European Convention on Human Rights Act, 2003
  • Criminal Law (Human Trafficking) Act 2008
  • Employment Permits Acts 2003 to 2014, and Employment Permit Bill 2022An Overview of Irish Immigration Law
  • Civil Registration (Amendment) Act 2014
  • International Protection Act 2015
  • S.I. No. 548/2015 – European Communities (Free Movement of Persons) Regulations 2015
  • Criminal Justice (Smuggling in Persons) Act 2022
  • Secondary regulations made under the above Acts.