Protection act combines scrutiny and speed

There is potential tension between the International Protection Act 2026 and EU asylum law, the Irish Centre for European Law's Annual Asylum and Immigration Conference has heard.

In a panel discussion (26 June) moderated by Hilkka Becker, chair of the International Protection Appeals Tribunal (IPAT), asylum and immigration law specialists discussed the key changes arising from the International Protection Act 2026. 

In her overview of the detention and restriction of movement provisions in the act, Sarah Cooney, BL began by distinguishing detention from restrictions on freedom of movement, noting that concepts such as “de facto detention” and “effective detention” may arise where a person’s liberty is significantly restricted without formal detention.

Referring to the border procedure in part 7, she observed that applicants processed under section 175 are not granted permission to enter the State and, under section 184(2), are required to reside in an Asylum Border Procedure Centre.

While such centres are not classified as detention facilities, she noted that applicants appear unable to leave them, raising questions about the concept of detention under EU law.

She referred to the EU Court of Justice decision in Commission v Hungary, in which detention was described as “any coercive measure” requiring an applicant to remain within a restricted and closed perimeter.

Detention

Cooney outlined the structure of the act, noting that part 5 (sections 100 to 125) governs restrictions on freedom of movement, alternatives to detention and detention of applicants for international protection.

Part 11 (sections 222 to 234) concerns detention pending return and remains a matter of Irish law, as Ireland has not opted into the Returns Directive or the Border Returns Procedure Regulation.

Cooney highlighted the decision in NS v Minister for Justice, emphasising the constitutional significance of Ireland’s decision not to opt into particular EU measures.

Cooney described the restrictions of freedom of movement under part 5 of the act as having “grades of severity” beginning with residence requirements under section 102 and reporting obligations under section 103, both of which she described as not being new in Irish law, but which now involve “a lot more procedure”.

Cooney also noted the variation and review mechanisms under section 107, and alternatives to detention under section 113, Cooney noted that detention remains a “measure of last resort”, with seven statutory grounds set out in section 112.

About detention powers for returnees, Cooney outlined the provisions in sections 223 and 230, including the increase in the maximum detention period from eight to 12 weeks and the new review mechanism under section 234 for persons detained for more than four weeks.

She suggested that these provisions, particularly those relating to returnees, are likely to generate significant litigation and judicial interpretation.

From the floor, Andrew Munro from the Department of Justice, clarified that applicants based in the designated Asylum Borders Procedure centre in Citywest are required to check in daily but are free to leave the centre.

Munro also clarified applicants’ legal entitlements under the 2026 act saying that the Civil Legal Aid Act has been amended and that in the Citywest centre legal counselling, and information, is provided free of charge to everybody.

“It is being provided under the aegis of the legal aid board. It is a separate thing from legal aid, but it's being provided under their aegis by paralegals,” he said.

Applicants can apply for legal aid, he continued, and “the vast majority”, an estimated 99% of people who have entered since 12 June, have applied for legal aid representation.

In his presentation, barrister David Leonard described the new Tribunal for Asylum and Returns Appeals (TARA) as “not just a replacement for IPAT”, but as a specialist tribunal operating within a framework increasingly shaped by EU law.

He said TARA occupies a “hybrid” position.

“On the domestic side, Tara is best understood as an article 37 body,” Leonard said while, for EU law purposes, it acts as the body required to provide an effective remedy under article 47 of the EU Charter of Fundamental Rights.

Section 193 of the act requires TARA to conduct a “full and ex nunc examination” of facts and law before determining substantive appeals.

In such appeals, TARA will not simply review the original decision but may substitute its own decision on whether an applicant qualifies for international protection.

Legal tension

Leonard identified a legal tension: “The 2026 act promises intensive scrutiny at appeal stage, but it also builds in speed, a default position of papers-only appeals, and no automatic suspensive effect in some cases.

“And the question is not whether speed is illegitimate, it is not, the real question is whether speed can be kept in its appropriate place, which must be subordinate to the legal standard, a full and ex-nunc examination of facts and law”.

Section 191 makes paper-based appeals the default position, with oral hearings required only where necessary to conduct a full examination of the case.

Credibility cases

Credibility cases, he suggested, would present particular challenges, given that asylum claims may involve trauma, vulnerability, interpretation difficulties or inconsistencies arising from a person’s circumstances.

Practitioners seeking oral hearings should identify why a case cannot be fairly determined on the papers, rather than simply stating that credibility is in issue.

“Another new pressure point is suspense of effect,” Leonard said.

“Everyone who appealed to IPAT had the right to remain pending appeal. That's no longer the case”.

“Section 188 gives a general right to remain pending appeal”, he continued, “but with major exceptions” and as a result, section 189 takes on great significance as it gives individuals without an automatic right to remain a mechanism to request TARA for permission to remain pending appeal.”

He concluded that: “If TARA treats speed as serving rather than displacing effective remedies, the model can work fairly, and that's the central point.”