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Minister for Justice Helen McEntee. ©

Cabinet approves emergency legislation to enable return of asylum seekers to UK

It comes amid a growing Ireland-UK row over migration, with British Prime Minister Rishi Sunak saying he is “not interested” in pursuing a deal with Dublin.

CABINET HAS APPROVED a proposal brought by Justice Minister Helen McEntee to draft legislation that would designate the UK as a safe country again in order to return asylum seekers who have crossed the border into the Republic from Northern Ireland.

It comes amid a growing diplomatic row with the UK over migration, with British Prime Minister Rishi Sunak yesterday saying he is “not interested” in pursuing a deal with Dublin.

The Department of Justice said there has been an arrangement on returns in place between Ireland and the UK since Brexit, which was agreed in November 2020.

This agreement however, is not legally binding.

A Department of Justice spokesperson told The Journal: “There is a written standard operating procedure which was agreed by the Home Office and the Department of Justice. This is not publicly available.

“We do not provide operational details of immigration procedures so as to any avoid any impact on the effectiveness of such operations.”

The Department has been working on updating the legislation to enhance Ireland’s returns agreement with the UK, after the High Court last month ruled that the designation of the UK as a “safe third country” is unlawful under EU law. 

The court held that McEntee had exceeded her powers by designating the UK a safe third country in December 2020, which came in response to the UK’s exit from the EU.

The legislative proposals agreed by Cabinet today will now amend the International Protection Act 2015, and enable Ireland to resume the returns to the UK.

McEntee said Ireland needs to have “a firm rules-based system where rules are in place, where rules are enforced, and where rules are seen to be enforced”.

She said the “reciprocal arrangement” that has been in place between Ireland and the UK since Brexit has not been operational due to the High Court ruling. 

“The legislative changes that I will bring to the Houses in the coming weeks will ensure that the arrangement can be operationalised,” she said.

“The is one of a number of measures which I am taking to make sure we have an immigration system which is firm but fair. Fair on those who need it and firm on those who don’t.”

‘Cannot have a loophole’

Speaking on her way in to Cabinet this morning, McEntee told reporters:

“This legislation has not been effective because of this High Court ruling and because of Covid where effectively there were no returns taking place. We cannot have a loophole however where it’s not possible for us as a country to return people under an arrangement that has already been agreed.”

Taoiseach Simon Harris has said Ireland has a “legitimate expectation” that a migration agreement with the UK will be honoured.

Harris said: “Of course, this country is going to change our law to give practical legal effect to what is already agreed between Ireland and Britain and has been since 2020.”

He added: “It’s very important everybody understands that: there’s already an agreement in place between Ireland and Britain. What we’re doing is giving legal clarity in relation to that agreement, which will allow us to designate the UK as a safe country again.

“It’s also very important for people in Britain to understand that this is a two-way agreement. This is to ensure that refugees can be sent in both directions if their application is inadmissible.”

However, UK Prime Minister Rishi Sunak’s spokesperson has said the UK has “no legal obligation” to accept the return of asylum seekers from Ireland.

There is an existing understanding and operational procedure with the Irish Government regarding the common travel area, he said.

It’s understood McEntee intends that returns to the UK will recommence once the law is enacted.

It follows her decision last week to extend fast processing to whatever country has the highest number of applicants, which is currently Nigeria.

The Department expects that this will have an immediate impact. A spokesperson said that since McEntee introduced accelerated processing in November 2022, the applications from the eight designated safe countries have dropped by 50%.

Two additional countries were added to the safe country list earlier this year, with a further eight currently under review.

It’s understood that under the fast track system, applicants receive their decisions more quickly, meaning that someone who has a right to protection gets it more quickly, but it also means those without a right can be returned more quickly.

This quicker processing will mean less time in State accommodation. It will also mean that those who are refused will have a negative immigration record, which will impact their ability to travel internationally.

McEntee said today that there cannot be a “loophole” in the legislation around returning people to the UK, echoing Taoiseach Simon Harris’ comments on the matter.

Last month, McEntee announced that her Department would take over the immigration registration function from the Gardaí. A spokesperson said this will free up an additional 100 Gardaí for frontline enforcement work, including around deportations.

Diplomatic row

The growing Ireland-UK row over migration overshadowed the British Irish Inter-Governmental Conference in London yesterday, after it emerged late on Sunday that a planned meeting between McEntee and her UK counterpart, Home Secretary James Cleverly, had been cancelled. 

The row was sparked after McEntee told an Oireachtas committee last week that over 80% of asylum seekers who come to the Republic enter via Northern Ireland.

When asked about the row and about efforts by the Irish government to reverse the trend yesterday, Sunak said: “We’re not interested in that.

“We’re not going to accept returns from the EU via Ireland when the EU doesn’t accept returns back to France where illegal migrants are coming from. Of course we’re not going to do that.”

The figure of 80% which was cited by McEntee has been questioned by human rights and refugee organisations.

When asked about the evidence for the claim yesterday, Tánaiste Micheál Martin said the figure is “not statistical”, but that it was “clear from the presentation of migrants” that there was a change in where they came from.

He added that the Department of Justice had a “perspective” that there had been an increase in the number of arrivals through Northern Ireland.

Speaking to reporters at the British-Irish Intergovernmental Conference, Martin said: “On the 80% and the evidence: Over a while, I think the Department of Justice officials would say – and it’s not statistical, it’s not a database or evidence base – but it is very clear from the presentations of migrants that there’s a change in the nature of where migrants have come from, and that’s the sense and the perspective that Justice have on this.”

In a statement to The Journal, a spokesperson for the Department said the 80% figure is based on the experience of staff and others working in the field.

“It has long been the case that a significant number of people apply for international protection for the first time in the International Protection Office (IPO). This has increased in 2024,” the spokesperson said.

They said that to date in 2024, there have been 6,739 applications for International Protection at the IPO. Of these 6,136 (91%) were made at the IPO for the first time and not at a port of entry.

“There are a number of circumstances in which someone might apply in the IPO without first applying at a port of entry. They may enter at an airport with valid documentation for example but choose not to apply at that time. Or they may apply having been in the State for a period previously, for example on foot of a different permission to remain.

“However, the Department’s firm assessment, based on the experience of staff and others working in the field, and based on the material gathered at interviews, is that over 80% of cases of those applying for the first time in the IPO have entered over the land border. This is the Department’s operational assessment of the situation.”

‘Very difficult to determine’

The Economic and Social Research Institute (ESRI) has also warned that data on IPO presentations alone is not conclusive evidence of the route being used or the reason for applying in Ireland.

It said there are many possible reasons why people might apply in-land rather than at the border.

While noting there is little research on what might drive those fluctuations, an ESRI spokeswoman said that between 2017 and 2021, the percentage of international protection applications made at the IPO fluctuated between 47.6% and 79.5%, with little discernible pattern.

The ESRI also told the PA news agency that “deflection effects” of asylum seekers to neighbouring countries are most common in nationalities that have travelled to both countries.

It said it is “very difficult to determine” where this is the case without primary data collection with international protection applicants.

With reporting from PA

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