EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

By Dr Ciara Smyth, Irish Centre for Human Rights and School of Law, University of Galway, Ireland

Audio version available here

On 18 June 2024, the Irish Dáil (the lower house of parliament) adopted a motion approving the exercise by the State of its discretion under Protocol 21 to the Lisbon Treaty to opt in to all legislative measures of the EU Pact on Migration and Asylum, bar two: the Screening Regulation and the Return Border Procedures Regulation. Being Schengen-related measures, Ireland could not opt in to these two regulations without opting into Schengen itself – which Ireland cannot do for reasons outlined below. Nonetheless, the Minister for Justice indicated her intention to the Dáil to ‘align’ domestic law with these regulations, saying that ‘essentially we will replicate what we cannot join’. On 31 July, the Commission adopted a number of decisions confirming the participation of Ireland in seven of the nine Pact measures.

A brief history of Ireland’s à la carte engagement with the CEAS

According to Protocol 21 of the Lisbon Treaty, Ireland does not automatically participate in the adoption of measures concerning the Area of Freedom Security and Justice (AFSJ), such as asylum and migration measures. Rather, Ireland is entitled to opt in to the negotiation and application of such measures within three months of a proposal or initiative being presented to the Council or to opt in any time after the measures are adopted. Until recently, Ireland’s approach to the Common European Asylum System (CEAS) largely mirrored that of the UK, with both countries opting into the Phase One measures (bar the Reception Conditions Directive in the case of Ireland) and a minority of Phase Two measures (the Dublin III Regulation and – as of 2018 and in the case of Ireland alone – the recast Reception Conditions Directive). Accordingly, Ireland retains its sovereignty about which CEAS measures – and which iteration of CEAS measures – it opts into. This type of variable geometry has been described by de Witte as ‘the most obnoxious of all’ because it facilitates opting into the control-oriented parts of EU asylum law while opting out of the parts that grant asylum seekers subjective rights. The consequences of this for the sound administration of asylum policy in Ireland will be explored in the final section, along with the likely consequences of Ireland’s historical à la carte approach for its recent volte-face. For now, it is worth distinguishing between the policy reasons for Ireland’s alignment with the UK in negotiating Protocol 21 to the Lisbon Treaty (and, before that, Protocol 19 to the Amsterdam Treaty) and its alignment with the UK in opting in and out of CEAS measures.

To the extent that Ireland features at all in the literature on differentiated integration, it is typically presented as being tethered to the UK, with little agency of its own. Britain’s historical reticence to cede sovereignty in matters of immigration and asylum, which reached its apogee in Brexit, hardly needs rehearsing. Ireland has never shared the UK’s antipathy to the EU, notwithstanding the occasional, dramatic setback on the road to integration. However, since 1922 (with some interruptions), Ireland and the United Kingdom have shared a mini-Schengen – the Common Travel Area (CTA)  –  according to which people can travel freely between the two States. As a by-product of the CTA, Ireland developed an immigration law and policy that aligned, at least to some extent, with that of the UK – a state of affairs that only began to change when Ireland became a country of net immigration in the mid- 1990s. Since the UK refused to participate in Schengen, Ireland had to follow suit in order to preserve the CTA. Otherwise, if Ireland joined Schengen and the UK did not, Ireland’s borders with the UK, including the politically sensitive land border with Northern Ireland, would become external EU borders to be policed by Ireland, impeding free movement between the two jurisdictions. Post-Brexit, it is Ireland’s stated intention to remain outside the Schengen area. This also reflects the fact that the logic of Schengen does not seamlessly apply beyond continental Europe.

By contrast, Ireland was not ‘forced’ by the CTA to mirror the UK’s approach to opting in and out of CEAS measures, although it may have suited Ireland to give that impression. At first glance, it might appear that twin approaches were necessary to foreclose irregular secondary movements of asylum seekers between the two jurisdictions. Put differently, if Ireland opted into a certain CEAS measure and the UK did not, asylum seekers might have been motivated to move to whichever jurisdiction offered the best standards – and been facilitated in doing so by the CTA. However, the fact that both Ireland and the UK opted into the Dublin Regulation (in both iterations, as well as the earlier intergovernmental Dublin Convention) and therefore that EU law supplied a mechanism for dealing with irregular secondary movements, meant that the two States could pursue diverse opt in/opt out strategies when it came to the CEAS. The fact that Ireland aped the British approach was therefore a matter of choice – part habit from the CTA history, part forum-shopping. Indeed, Ireland had a tendency to point to UK asylum policy as a justification for introducing regressive measures into Irish asylum policy, such as the infamous direct provision system and pre-deportation detention.

Dining with a new partner

With the decision to opt in to most of the EU Pact, Ireland has effectively swopped the à la carte dining experience with Britain for the Brussels set menu. The question is, why? There are several reasons.

The first is political. Ireland relied greatly on EU support when it came to the Brexit negotiations, the Northern Ireland Protocol and the Windsor Framework. It was imperative from the Irish perspective, and arguably a sine qua non of the Belfast Agreement, to avoid a hard border between the Republic and Northern Ireland. The EU effectively folded Irish concerns into the EU negotiating position on the new western border of the customs union. As Anglo-Irish relations deteriorated during Brexit, Irish allegiance shifted from the UK to the EU. The deterioration in bi-lateral relations could also be seen on the asylum front. A controversy erupted last summer over purportedly large numbers of international protection applicants coming from the UK to Ireland in order to avoid the UK-Rwanda Deal. Following Brexit, Ireland had designated the UK as a safe third country but in March 2024 the Irish High Court found that Ireland was in violation of the Dublin III Regulation in so doing. Article 3(3) of Dublin III provides that ‘Any Member State shall retain the right to send an applicant to a safe third country, subject to the rules and safeguards laid down in [the recast Asylum Procedures Directive].’ However, having not opted into the recast directive, Ireland relied on the less developed safe third country criteria in the original Asylum Procedures Directive. In any event, it was unclear whether there was any bilateral transfer agreement between Ireland and the UK and the British Prime Minister appeared to foreclose any such deal, reportedly saying ‘We’re not going to accept returns from the European Union via Ireland when the EU doesn’t accept returns back to France, where illegal migrants are coming from’. In this political context, it is hardly surprising that Ireland sought to opt into the EU Pact.

Secondly, like other EU Member States, Ireland has recently experienced an exponential increase in international protection applicants, is hosting a significant number of Ukrainian beneficiaries of temporary protection, is in the middle of a protracted domestic homelessness crisis and is newly contending with the rise of popular anti-immigrant sentiment and the far right. Since the new pact purports to clamp down on irregular migration, while increasing the speed of case-processing and decreasing numbers, it is understandably attractive to Ireland. Of course, whether the new Pact can deliver on those goals is a separate question. In a general election year, the Irish government can point to the Pact as an example of the ‘tough measures’ that Ireland is taking, for example, relating to fast-track procedures and returns. At the same time, in due course, the Pact can be blamed when Ireland starts to build reception facilities (detention centres?) close to Dublin airport under the pretext of the new border procedure – something that has been touted for decades by successive governments but strenuously opposed by civil society. In this regard, Ireland’s engagement with the Pact is not so different from its previous à la carte approach to the CEAS – it is just another form of forum-shopping. If it were otherwise, namely, a genuine fulsome engagement with EU migration and asylum law, one could expect Ireland to also opt in to more progressive measures, such as the Family Reunification Directive, Long Term Residents Directive or  Blue Card Directive.

Thirdly, Ireland perceives certain strategic advantages to opting in to the Pact. For example, in view of its geographical location, Ireland was always an enthusiastic participant in the Dublin system. Its main transfer partner (both incoming and outgoing) used to be the UK. Post Brexit, Eurostat statistics show that Ireland pivoted to making requests to other EU Member States, with an impressive 1,339 outgoing requests in 2021, of which precisely none had been transferred by the end of 2023. Given the enhanced machinery of the Regulation on Asylum and Migration Management, and the expanded scope of Eurodac, the perception is that Ireland will be a net beneficiary of the ‘new Dublin’ system, even taking into account its 2.16% share in the solidarity pool (which equates to 648 transfers or just shy of €13 million).

Another example of a perceived advantage is Ireland’s share in the EU implementation budget. The Minister for Justice observed in parliament that ‘we could have access to a significant amount of money in the context of this budget’ and that this ‘could amount to tens of millions of euro by the time it is divided up’. This seems somewhat of an overstatement given that the budget comprises existing AMIF and ISF funding (approximately €70 million for Ireland for the period 2021-27), but perhaps the Minister was over-egging the possibility of a large windfall to pre-empt opposition in parliament. What does seem certain is that the Department of Justice appreciates Commission, EUAA and Technical Support Instrument assistance in implementing the Pact measures. This is in a context where Ireland has grappled unsuccessfully with asylum reform for over a decade.

A final example of a possible strategic advantage can be conjectured from the Irish decision to ‘align’ with the Screening and Return Border Procedures Regulations. The former requires Member States to subject persons falling within its scope to a pre-entry security check by consulting various EU databases. As Schengen measures, Ireland has opted in to some of these databases (e.g. SIS II, ECRIS-TCN) but not others (e.g. EES, ETIAS, VIS). However, now that the databases are largely interoperable, it is possible that Ireland will gain access to more data, allowing Ireland in turn to deny entry to more people, and to subject them to speedier returns.

Likely difficulties in implementing the new Pact

All EU Member States face considerable obstacles in implementing the new Pact – in all its opacity and complexity – within the two year time-frame. Of course, those Member States which are currently not in compliance with one or more of the Phase Two CEAS measures may have further to travel to reach corresponding Pact measures that set higher standards. Ireland certainly falls into this category as regards the recast Reception Conditions Directive. The Irish High Court has found Ireland to be in violation of the directive (twice) for its policy of failing to accommodate male international protection applicants and rendering them street homeless. The High Court has also made a reference for a preliminary ruling to the CJEU on whether force majeure is a defence to a Francovich damages claim for a breach of rights in the recast RCD that derive from the fundamental right to human dignity contained in Article 1 of the Charter. Finally, several cases are currently pending before the High Court on Ireland’s failure to implement the vulnerability assessment requirements in the recast Reception Conditions Directive. In this context, there is quite a distance to the requirements of the new recast Reception Conditions Directive, not to mention the transversal provisions on vulnerability in many of the Pact measures.

It may also be the case that because of its historical à la carte approach to the CEAS, Ireland has further to travel to the Pact than any other EU Member State. An example will help illustrate the point. It relates to the endemic delays in case-processing which have dogged the Irish asylum procedure since the earliest days. These can be traced, initially, to the refusal to avail of a discretionary provision in the original Asylum Procedures Directive that all other EU Member States availed of (even the UK!); and subsequently, to the refusal to opt in to the recast Asylum Procedures Directive. When Ireland opted in to the original Asylum Procedures Directive it, uniquely, declined to avail of the option to extend the scope of the directive to applicants for subsidiary protection as well as applicants for refugee status via a single procedure. Instead, Ireland established a two-stage sequential procedure, significantly prolonging the status determination process. Eligibility for refugee status was determined by the first and second instance asylum bodies pursuant to existing asylum legislation; only at the conclusion of that process i.e. at the pre-deportation stage, could the applicant apply to the Minister for subsidiary protection pursuant to existing immigration legislation. Eligibility for subsidiary protection was decided by the Minister on the basis of the asylum file and without recourse to an interview.

It was not long before this form of differentiation – if it can be called that – came before the CJEU. In M.M. v Ireland in 2012, the High Court requested a preliminary ruling on whether the paper examination of the subsidiary protection application by the Minister was consistent with the right to be heard. The CJEU held that ‘the fact that the applicant has already been duly heard when his application for refugee status was examined does not mean that the procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection.’ Although the judgment was ambiguous on whether the right to be heard entails the right to an interview, it did cast doubt on the legality of deciding subsidiary protection applications on the basis of the asylum file alone and by a different body.

As a result, in November 2013 a new procedure was introduced whereby applications for subsidiary protection, pending and new, were examined and determined by the first instance body after the definitive conclusion of their asylum claim, on the basis of a personal interview with the possibility of appeal in the event of a negative recommendation. However, while this may have remedied the right to be heard issue, it exacerbated the delay issue since it retained the bifurcated procedure, and at the same time prolonged that procedure by adding a second interview and appeal to the subsidiary protection stage. In effect, applicants went through substantially the same procedure twice. A major government review of the asylum procedure at this time found that 55% of asylum applicants had been in the system for 5 years or more.

The real game-changer in this regard was the preliminary reference in H.N. v Ireland in 2014. At issue was the delays caused by the sequential procedure. Since Ireland had chosen not to apply the Asylum Procedures Directive to the subsidiary protection process, the time-limits in that directive could not be argued. Instead, the High Court queried whether the sequential procedure and consequent delays were implicitly prohibited by the Qualification Directive. The CJEU found that the sequential procedure was permissible but only if it ‘does not give rise to a situation in which the application for subsidiary protection is considered only after an unreasonable length of time.’

As a result of the H.N. judgment, the International Protection Act 2015 was adopted, repealing the previous refugee and associated immigration legislation, and establishing a single procedure. However, Ireland did not take the opportunity of the new act to opt into the recast Asylum Procedures Directive, which extends its mandatory personal scope to both applicants for refugee status and applicants for subsidiary protection status. As a result, the vague processing time limits for a first instance decisions set out in the original Asylum Procedures Directive (‘as soon as possible’), as opposed to the finite time-limits established in the recast directive (‘within six months of lodging of the application’) apply to Ireland. Indeed, the six-month limit may well have prevented Ireland from opting in. Since the International Protection Act 2015 was prospective, it did not resolve the problem of applicants who were already in the protection system before its entry into force. In other words, the asylum bodies had to roll out the new single procedure while dealing with a large legacy backlog.

Indeed, it has only been in the post-Covid lockdown period that the Irish government – through strenuous, multi-faceted efforts – has managed to get processing times down to anything approximating the six-month time limit in the recast Asylum Procedures Directive. Just as it was appearing to get ahead of the problem for the first time, progress was overtaken by events, specifically, a 415% increase in the number of international protection applicants in 2022. In 2023, numbers remained constant and at the time of writing (November 2024), the numbers have already exceeded the 2022 levels. In this context, it is very difficult to see how Ireland can possibly meet the extremely stringent deadlines in the Asylum Procedures Regulation (i.e. two months for admissibility decisions; three months for the accelerated procedure, three months for all decisions – first instance, appeal and return – in the border procedure; six months for the ordinary procedure). One is reminded of that Irish joke: a tourist asks a local person for directions and the local replies, ‘well I wouldn’t start from here!’. On the other hand, many of Ireland’s problems result from its à la carte approach to the CEAS. Perhaps opting for the set Brussels menu will finally lead to the systemic reforms that advocates have long been calling for, even if the Pact comes with significant moral and legal hazard.