Irish Supreme Court rules ‘outsourcing’ international protection applications to a panel of independent contractors is lawful
The Irish Supreme Court has upheld as lawful the use of independent contractors in the determination of applications for international protection.
Three challenges were brought against the Chief International Protection Officer and the Minister for Justice for outsourcing the consideration of asylum applications to a panel of, mostly, self-employed barristers. The first was by an Albanian mother whose children were refused asylum. The second was by an Albanian man who was also refused asylum and subsidiary protection. The last was made by a Brazilian man who was also refused protection.
The Albanian woman argued that the practice, which has been in place since 2015, was in breach of the Refugee Act 1996 as the statutory function of the Refugee Applications Commissioner (RAC) was not being performed by a member of staff. In this case, a panel member interviewed the family and produced a draft set of findings which recommended that their applications be refused. These findings were reproduced by an Executive Officer as an ‘Investigator’, and signed off by a Higher Executive Officer “for and on behalf” of the Commissioner.
The two other cases made similar arguments regarding the new procedure under the International Protection Act 2015. While each appellant accepted that panel members could be enlisted for some purposes, they argued that the current practice exceeded lawful authority.
Dismissing the appeals, Mr Justice Donal O’Donnell in the Supreme Court found that the role of the panel member as interviewer was clearly defined and carefully structured. Their role was confined to finding the answers to a series of questions. The Court was of the view that the interviewer could not act independently outside the control and direction of the Office of the Refugee Applications Commissioner. More importantly, they were not the final decision maker on any investigation – this was the Executive Officer, and therefore the Commissioner for the purposes of the 1996 Act.
The Court held that the same reasoning applied to the 2015 Act, which in fact was more accommodating to the panel member system in that is requires an “examination” rather than an “investigation”.