REFUGEE ACT 1996 (ASYLUM PROCEDURES) REGULATIONS 2011

fontdor

So I got a friend who has got leave to remain however he was deserved to get refugee when he came here. Now he wants to change to refugee status he has problems with his countries government and if he returns he will be killed. Anyways I heard there is some sort of act called refugee act 1996 section 17 (7) where he can re apply for refugee status. Now if he does will he lose his leave to remain?

ResearchWill

fontdor wrote: »

So I got a friend who has got leave to remain however he was deserved to get refugee when he came here. Now he wants to change to refugee status he has problems with his countries government and if he returns he will be killed. Anyways I heard there is some sort of act called refugee act 1996 section 17 (7) where he can re apply for refugee status. Now if he does will he lose his leave to remain?

But leave to remain gives him permission to remain and pretty much all the same rights as refugee status, so why would he want to open the whole process again. Section 17 (7) was amended by SI 51/2011


“(7) A person to whom the Minister has refused to give a declaration may not make a subsequent application for a declaration under this Act without the consent of the Minister.”.

and

(b) inserting the following after subsection (7):

“(7A) The consent of the Minister referred to in subsection (7)—

(a) may only be given following a preliminary examination as to whether new elements or findings relating to the examination of whether the person qualifies as a refugee have arisen or been presented by the person, and

(b) shall be given if, following the preliminary examination referred to in paragraph (a), new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee.

(7B) An application for the consent referred to in subsection (7) shall be accompanied by—

(a) a written statement of the reasons why the person concerned considers that the Minister should consent to a subsequent application for a declaration being made,

(b) where the previous application or appeal was withdrawn or deemed to be withdrawn, a written explanation of the circumstances giving rise to the withdrawal or deemed withdrawal of the application or appeal,

(c) all relevant information being relied upon by the person concerned to demonstrate that he or she is entitled to protection in the State, and

(d) a written statement drawing to the Ministers attention any new elements or findings relating to the investigation of whether he or she is entitled to protection in the State which have arisen since his or her previous application for a declaration was the subject of a notice under subsection (5).

(7C) The Minister shall, as soon as practicable after receipt by him or her of an application under subsection (7B), give or cause to be given to the person concerned a statement in writing specifying, in a language that the person may reasonably be supposed to understand—

(a) the procedures that are to be followed for the purposes of subsections (7) to (7H),

(b) the entitlement of the person to communicate with the High Commissioner,

(c) the entitlement of the person to make submissions in writing to the Minister,

(d) the duty of the person to co-operate with the Minister and to furnish information relevant to his or her application, and

(e) such other information as the Minister considers necessary to inform the person of the effect of subsections (7) to (7H), and of any other relevant provision of this Act or of the Regulations of 2006.

(7D) Pursuant to an application under subsection (7B), and subject to subsection (7E), the Minister shall consent to a subsequent application for a declaration being made where he or she is satisfied that—

(a) since his or her previous application for a declaration was the subject of a notice under subsection (5), new elements or findings have arisen or have been presented by the person concerned which makes it significantly more likely that the person will be declared to be a refugee, and

(b) the person was, through no fault of the person, incapable of presenting those elements or findings for the purposes of his or her previous application for a declaration (including, as the case may be, any appeal under section 16).

(7E) Pursuant to an application under subsection (7B) by or on behalf of a person who the Minister has, under Regulation 4(5) of the Regulations of 2006, determined not to be a person eligible for subsidiary protection, the Minister shall consent to a subsequent application for a declaration being made where he or she is satisfied that-

(a) since his or her previous application for a declaration was the subject of a notice under subsection (5), new elements or findings have arisen or have been presented by the person concerned which makes it significantly more likely that the person will qualify for protection in the State, and

(b) the person was, through no fault of the person, incapable of presenting those elements or findings for the purposes of his or her previous application for a declaration (including, as the case may be, any appeal under section 16) or, as the case may be, for the purposes of his or her application for subsidiary protection under Regulation 4 of the Regulations of 2006.

(7F) Where the Minister consents to the making of a subsequent application for a declaration, he or she shall, as soon as practicable, notify the person concerned of that fact.

(7G) Where the Minister refuses to consent to the making of a subsequent application for a declaration, he or she shall, as soon as practicable, notify the person concerned of that fact and of the reasons for it and of how a review of that decision may be sought.

(7H) In this section, ‘protection’ has the same meaning as it has in the Regulations of 2006.”.

Many people are not entitled to Refugee Status, as the grounds for same are very narrow, but be entitled to subsidiary protection or humanitarian leave.

fontdor

ResearchWill wrote: »

But leave to remain gives him permission to remain and pretty much all the same rights as refugee status, so why would he want to open the whole process again.

Well he says that his government has taken all of his identity from him before he fled his country. so he wants a refugee status. is it possible at all?

ResearchWill

fontdor wrote: »

Well he says that his government has taken all of his identity from him before he fled his country. so he wants a refugee status. is it possible at all?

I set out the regulations of course it's possible, but why would you want to get a particular protection decision when he has another version. There is the Refugee Legal Aid service they can advice him.

fontdor

ResearchWill wrote: »

I set out the regulations of course it's possible, but why would you want to get a particular protection decision when he has another version. There is the Refugee Legal Aid service they can advice him.

Just one last question. Say He does want to do a reapplication will his Leave To Remain be taken off him?

ResearchWill

fontdor wrote: »

Just one last question. Say He does want to do a reapplication will his Leave To Remain be taken off him?

Have no idea, but at a guess if he restarts the process he risks an adverse finding in all applications.

Dandelion6

ResearchWill wrote: »

But leave to remain gives him permission to remain and pretty much all the same rights as refugee status

Refugee status gives far more rights than "leave to remain" eg the right to family reunification, to a fast-track path to citizenship, to education grants. It's also a far more secure status.

And no, he will not automatically lose his current status by reapplying for asylum.

ResearchWill

Dandelion6 wrote: »

Refugee status gives far more rights than "leave to remain" eg the right to family reunification, to a fast-track path to citizenship, to education grants. It's also a far more secure status.

And no, he will not automatically lose his current status by reapplying for asylum.

I said basically the same not the same. And I did not say automatically lose his current status I in fact said I don't know, but the person risks an adverse finding.

In relation to status yes refugee status 3 years to citizenship instead of 5, both free fees and grants are available to both refugee status and leave to remain http://www.dcu.ie/finance/fees/criteria_free_fees.shtml and http://www.studentfinance.ie/mp9548/step-3-check-your-nationality-related-status/index.html

While family reunification may be a very valid reason to seek refugee status the OP did not state is was the reason. Also the OP said the person was granted leave to remain not subsidiary protection, I am wondering what change there could have been to allow a application for refugee status. But as I also said the RLS can give advice.

Dandelion6

I did not say automatically lose his current status

I didn't say you did. I was answering OP's question.

You're right about the education grants, I was thinking of leave to remain under the IBC scheme rather than Section 3.

And don't underestimate the importance of security of status. The government's ability to remove refugee status or to expel a refugee is very tightly constrained under both Irish and international law, whereas LTR is granted only on a short-term basis, must be constantly renewed and can be revoked at the Minister's discretion. In practice this is unlikely to happen without cause but it's not difficult to understand why someone would prefer to avoid the possibility, particularly if their fear of persecution is genuine.

Also the OP said the person was granted leave to remain not subsidiary protection, I am wondering what change there could have been to allow a application for refugee status.

Subsidiary protection is almost never granted in this country. When a good case is made for it the Minister sometimes offers to grant LTR in exchange for dropping the SP application. This is no doubt also because of the lower threshold of rights on offer under LTR status.