International Protection Bill 2026: Committee Stage
Dail Éireann — 2026-02-18
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Alan Kelly (LAB), Tipperary North

I move amendment No. 13:
In page 25, between lines 16 and 17, to insert the following:
“(2) Where an officer of the Minister, pursuant to any enactment or rule of law, performs a function conferred on the Minister by virtue of subsection (1) , the officer is independent in the performance of that function.”.
The structure of decision-making in individual international protection application cases has changed over the years. Under the Refugee Act 1996, applications were made to and considered by an independent refugees commissioner, who made a binding recommendation to the Minister. Under the International Protection Act 2015, the procedure was brought in-house and recommendations were made to the Minister by international protection officers. These IPOs are officials of the International Protection Office, the immigration service of the Minister of State's Department. IPOs are not ordinary civil servants. It is quite technical. The Act provided in section 74, "An international protection officer shall be independent in the performance of his or her functions." To be clear, he or she shall be independent in the performance of his or her functions. The Supreme Court has held that the independent status of an IPO is a key feature, stating:
An applicant has a right to be interviewed, heard and have decisions concerning them made by an independent decision-maker who is familiar with the relevant law. As well as under statute, these rights arise under the Procedures Directives ... The procedure must be transparent.  Fairness and impartiality must be at the centre of the process.  The reasons for any decision must be clear.  EU law requires no less ... Failure to effectively implement the fundamental requirements laid down in the Directives and the case law will lead to a violation of EU law.
That is from ASA v. Minister for Justice and Equality, 2022. The reference to the procedures directive is to the asylum procedures directive, which requires under Article 10.3(a) that international protection applications be "examined and decisions ... taken individually, objectively and impartially". While the procedures directive is repealed by EU Regulation 2024/1348, the new regulation also requires in Article 34.2 that applications be examined "objectively, impartially and on an individual basis". There does not seem to be any real change to this at EU level. The Supreme Court in the ASA judgment seems to have been prepared to hold that the Irish regime would have been in breach of EU law, including charter rights, if IPOs did not have statutory independence.
The new Bill abolishes this independence. In fact, the Bill makes no reference at all to officials with regard to decisions on protection applications. The Bill vests the power to take such decisions on the determining authority, which is the Minister, under section 7. It seems pretty clear that the framers of the Bill expect the Carltona doctrine to apply. This is a rule of administrative law by virtue of which statutory functions conferred directly on the Minister can be performed by his or her civil servants. Such functions may be carried out by officials without any expressed statutory grant of power or administrative act of delegation. There will no longer be an examination or recommendation by an official acting independently, followed by a formal ministerial decision. All functions vested in the Minister will be exercised, in practice, by officials.
The Bill does no longer appear to require that a single identifiable individual will consider the information and, ultimately, decide the application. The question is whether such dispersed decision-making responsibility in a hierarchical organisation is compatible with the EU requirement that decisions be taken objectively and impartially. If the Bill enables an application to be dealt with as a departmental file per se that is to be sent up the line with additions, etc., and then decided on by superiors, it could well fall foul of both EU law and the Supreme Court’s decision in Geraghty v . the Minister for Local Government 1976.
An international protection application must be considered and decided, by whoever decides it, on a quasi-judicial basis. What is happening here prevents it from being treated as a departmental matter to be considered and scrutinised up the line in a departmental division, hence the requirement for the amendment, which I will press.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/dail/2026-02-18/debate/main
Retrieved: 2026-08-14T04:54:39+00:00
Sitting date: 2026-02-18