Qualification for Protection

Qualification Criteria

Acts of persecution must be sufficiently serious by their nature or repetition to constitute a severe violation of basic human rights, in particular the core  rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, or an accumulation of various measures, including violations of human rights, which is sufficiently severe as to affect an individual in a similar manner.

The following are examples of acts which may amount to acts of persecution.

• acts of physical or mental violence, including acts of sexual violence;
• legal, administrative, police or judicial measures, or a combination of these measures, which are in themselves discriminatory or are implemented in a discriminatory manner;
• prosecution or punishment that is disproportionate or discriminatory;
• denial of judicial redress resulting in a disproportionate or discriminatory punishment;
• prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts  against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes, a serious non-political crime or contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.
• acts of a gender-specific or child-specific nature.

For a person to be a “refugee”, there must be a connection between the reasons for persecution and the acts of persecution or the absence of protection.

Reasons for persecution

An international protection officer or the Tribunal, as the case may be, shall take the following into account when assessing the reasons for persecution:

• the concept of race shall in particular include considerations of colour, descent or membership of a particular ethnic group;
• the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief;
• the concept of nationality shall not be confined to citizenship or lack thereof but shall in particular include membership of a group determined by its cultural, ethnic or linguistic identity, common geographical or political origins or its relationship with the population of another state;
• a group shall be considered to form a particular social group where in particular—
  • members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, or
  • that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society,
  • and, depending on the circumstances in the country of origin, a particular social group may include a group based on a common characteristic of sexual orientation;
• the concept of political opinion shall in particular include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant concerned.

In the assessment of whether an applicant has a well-founded fear of being persecuted, it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution.

Sexual orientation shall not include acts considered to be criminal in the State. Gender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group.

Cessation of refugee status

A person shall cease to be a refugee if he or she—

• has voluntarily re-availed himself or herself of the protection of the country of nationality,
• having lost his or her nationality, has voluntarily re-acquired it,
• has acquired a new nationality (other than as an Irish citizen), and enjoys the protection of the country of his or her new nationality,
• has voluntarily re-established himself or herself in the country which he or she left or outside which he or she remained owing to fear of persecution,
• can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of his or her country of nationality, or
• being a stateless person, is able, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, to return to his or her country of former habitual residence.

In determining whether the last two circumstances apply, apply, regard shall be had to whether the change of circumstances is of such a significant and non-temporary nature that the person’s fear of persecution can no longer be regarded as well-founded. They shall not apply to a refugee who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of his or her country of nationality or, being a stateless person, of the country of former habitual residence.

Exclusion from being a refugee.

A person is excluded under the 2015 Act from being a refugee where he or she—

• is receiving from organs or agencies of the United Nations (other than the High Commissioner) protection or assistance, or
• is recognised by the competent authorities of the country in which he or she has taken up residence as having the rights and obligations which are attached to the possession of the nationality of that country, or rights and obligations equivalent to those.

The first circumstance shall not apply to a person where the protection or assistance concerned has ceased for any reason, without the position of persons who had been receiving that protection or assistance being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations.

A person is excluded from being a refugee where there are serious reasons for considering that he or she—

• has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes,
• has committed a serious non-political crime outside the State prior to his or her arrival in the State, or
• has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.

A person is excluded from being a refugee where there are serious reasons for considering that he or she has incited or otherwise participated in the commission of such a crime or an act.

Cessation of eligibility for subsidiary protection

A person shall cease to be eligible for subsidiary protection when the circumstances which led to his or her eligibility for subsidiary protection have ceased to exist or have changed to such a degree that international protection is no longer required. Regard shall be had to whether the change of circumstances is of such a significant and non- temporary nature that the person no longer faces a real risk of serious harm.

This shall not apply to a person eligible for subsidiary protection who is able to invoke compelling reasons arising out of previous serious harm for refusing to avail himself or herself of the protection of his or her country of nationality or, being a stateless person, of the country of former habitual residence.

Exclusion from eligibility for subsidiary protection

A person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that he or she—

• has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes,
• has committed a serious crime,
• has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations, or
• constitutes a danger to the community or to the security of the State.

A person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that he or she has incited or otherwise participated in the commission of such a crime or an act.

A person is excluded from being eligible for subsidiary protection if he or she has, prior to his or her arrival in the State, committed a crime, not referred to above which, if committed in the State, would be punishable by imprisonment and if he or she left his or her country of origin solely in order to avoid sanctions resulting from that crime.