Pat Rabbitte (Dublin South West, Labour)
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Question 142: To ask the Minister for Justice, Equality and Law Reform his plans to implement Council Directive 2003/9/EC, laying down minimum standards for the reception of asylum seekers, which stipulates that asylum seekers should be permitted to work after a given period of time in a member state, particularly having regard to the ongoing delays in processing asylum applications. [19691/10]

Dermot Ahern (Louth, Fianna Fail)
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The legal basis for Council Directive 2003/9/EC of 27 January 2003, laying down minimum standards for the reception of asylum seekers (Reception Conditions Directive), is Article 63 of the Treaty establishing the European Community (TEC). Accordingly, the provisions of the Amsterdam Treaty Protocol on the position of Ireland and the United Kingdom in relation to matters relating to asylum (Title IV TEC) apply. Ireland did not participate in the adoption and application of the 2003 Directive and there are currently no plans to exercise an opt-in in relation to it.

The principal reason for Ireland's position is the provisions of Article 11 of the 2003 Directive which deals with access to the labour market for asylum seekers. Article 11 provides that if a decision at first instance has not been taken within one year of the presentation of an application for asylum, and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant.

This is contrary to the existing statutory position in Ireland which provides that an asylum seeker shall not seek or enter employment. This prohibition in Irish law is maintained in the Immigration, Residence and Protection Bill 2008 which is currently before the Oireachtas.

Extending the right to work to asylum seekers would almost certainly have a profoundly negative impact on application numbers, as was experienced in the aftermath of the July 1999 decision to do so. The immediate effect of that measure was a threefold increase in the average number of applications per month leading to a figure of 1,217 applications in December 1999 compared with an average of 364 per month for the period January to July 1999.

Processing of Asylum Applications

On the issue of timescales for the processing of asylum applications, the Deputy might note that in the Office of the Refugee Applications Commissioner (ORAC) the current average processing time for prioritised applications (applicants from South Africa and Croatia) is 3 - 4 weeks. The average processing time for non-prioritised applications in ORAC is 8 - 9 weeks. While in the Refugee Appeals Tribunal (RAT) the median processing time for accelerated appeals (appeals on papers only) is 9 weeks and is 43 weeks for substantive appeals.

Some cases can take significantly longer to complete due to, for example, delays arising from medical issues, non-availability of interpreters or because of judicial review proceedings. Further complexity arises in the processing of applications because of the fact that applicants are from over 90 different countries. All asylum applications and appeals are processed in accordance with the Refugee Act 1996 (as amended). High quality and fair decision-making in all cases continues to be a key priority at all stages of the asylum process.

Persons who are refused a declaration under Section 17 of the Refugee Act 1996 (as amended) that they are a refugee subsequently enter what is commonly referred to as the "leave to remain" process. This is separate to the asylum or refugee status determination process.

There is a sizeable backlog of cases awaiting processing in the Repatriation area of the Irish Naturalisation and Immigration Service (INIS), approximately 11,500 cases at the end of April 2010. Over half of these cases include an application for Subsidiary Protection as well as further consideration to be given under Section 3 of the Immigration Act 1999 (as amended).

The processing of cases at repatriation stage is complex and extremely resource intensive given that where an application for Subsidiary Protection is lodged in addition to representations for consideration under Section 3 of the Immigration Act 1999 (as amended), the Subsidiary Protection application must be considered first to assess whether the applicant has an identifiable need for international protection.

The investigation of a Subsidiary Protection application requires a fresh examination of the entire asylum file, the documentation and country of origin information submitted in support of the application as well as an examination of objective, reputable, up to date country of origin information before a conclusion can be arrived at as to whether the applicant is likely to be exposed to 'serious harm' if returned to his/her country of origin. Where such an application is refused consideration must then be given to the case in accordance with the provisions of Section 3 of the Immigration Act 1999 (as amended), at which point the Minister must make a decision as to whether or not to make a Deportation Order in respect of that person. All of this must be done in strict compliance with the Constitution, together with relevant international treaties, such as the European Convention on Human Rights.

It will be seen that these are not quick or easy decisions to make and given the life changing consequences for the persons involved, these are decisions which must be taken with the most scrupulous care and attention.