Justice department refuses to publish migrant deal as UK casts doubt on whether it contains any legal obligations

It comes amid a developing row between Ireland and the UK after the Justice Minister Helen McEntee said there was a significant increase in the number of asylum seekers arriving in Ireland from across the Border.

The existence of an “operational arrangement” at the centre of the diplomatic row has been acknowledged by both sides, but Downing Street has cast doubt on whether it contains any legal obligations.

A No 10 spokesman said: “There’s an existing understanding and operational procedure that is long standing with the Irish Government.

“It’s obviously consistent with the Common Travel Area, but there is no legal obligation to accept the return of asylum seekers who enter and cross the Common Travel Area.

“My understanding is no asylum seekers have ever been returned to the UK under these existing arrangements. And as the prime minister set out yesterday, we’re not going to accept returns from the EU via Ireland at a time when the EU doesn’t accept returns back to France.”

The Department of Justice in Dublin said the written deal with the UK Home Office was agreed in November 2020 but is not publicly available.

It said the deal provides for reciprocal returns of asylum seekers who are deemed “inadmissible” and helps to protect against abuse of the Common Travel Area.

However, it refused to publish the deal: “We do not provide operational details of immigration procedures so as to avoid any impact on the effectiveness of such operations.”

The Cabinet approved emergency legislation from the Ms McEntee to allow the UK to be designated as a safe country to enable asylum seekers to be transferred back there.

It comes after a High Court ruling in March deemed that the legal basis for designating the UK as a safe country for the return of asylum seekers was unsound under EU law.

Earlier today, Taoiseach Simon Harris said the UK government has confirmed there is an “operating agreement” to allow asylum-seekers to be returned between both jurisdictions.

Mr Harris said a post-Brexit deal was struck in 2020 and allows asylum-seekers whose applications are “inadmissible” to be “returned” to the UK and vice versa.

Mr Harris said today that the deal was put in place when the UK left the EU and would allow refugees to be “returned in both directions”.

He said “operational agreements” are in place under the Common Travel Area.

While being questioned on the issue in the Dáil by Sinn Féin leader Mary Lou McDonald, the Taoiseach denied there was any confusion, saying there is a Common Travel Area between the UK and Ireland.

“As you know, better than most I would imagine, that is a really important Common Travel Area,” said Mr Harris.

“It’s something we value and as you also know, that when Britain made the decision to leave the European Union there was an agreement put in place, one that has been confirmed by the British government today in relation to an operating agreement for migrants, for refugees to be returned in both directions.

“I have no intention whatsoever of this country being dragged into politics in Britain. I’m very well aware of politics in Britain – they have their migration policy and they can do what they wish in relation that.

“We also have every right when countries enter agreements that those agreements are honoured. This is a country that honours our agreements and I’ve said very clearly that the British government has acknowledged there are operational arrangements in place. I welcome that fact.

“I’m very clear that those operational agreements are in place under the Common Travel Area. And I’m very clear that we’re going to legislate to have absolute clarity so that it can work. But I’m also really clear that it’s only one of a number of things we need to do.”

Ms McEntee today secured cabinet approval for legislative proposals that will allow for the resumption of returns of inadmissible international protection applicants to the UK.

The Minister for Justice will apply five legal tests over the safety of the UK as a return destination, a spokesman said, up on the four tests struck down by the High Court last month.

The High Court judgement had not been because the UK was not a safe country due to Rwanda flights, the spokesman insisted, but had been on the narrow legal ground that Ireland had not transposed an EU directive in the migration area.

The Justice Minister today referred especially to the numbers coming from Nigeria, which currently has the highest number of applicants, and said this legislation will be effective in seeing those numbers drop.

She said where she has introduced this arrangement already, there has been a 50pc drop in the numbers coming from those countries.

“That is why in the last week I have designated the country with the highest number of people, which is currently Nigeria, into that accelerated procedure. We know that many of them are coming from the UK,” she said.

Ms McEntee said the legislation will make sure that any loopholes which currently exist are closed, adding that the legislation is one of a number of measures she is bringing forward to tackle the issue.

“We have to be able to return people to the UK, but there is an arrangement in place. We've been working with the UK and I don't expect that that will change.”

Meanwhile, the Cabinet was told today that applications for asylum at ports and airports currently represents 9pc of the total -- with 91pc occuring at the International Protection Office in Dublin.

While the figure is in excess of the 80pc cited by Minister McEntee last week for assumed border crossings, a spokesman said the number "ebbs and flows".

He said the 91pc at the IPO office could also reflect both visa over-stays and people whose situation had genuinely changed in their home country such that it would be unsafe to return in their opinion. If was their legal right to apply for asylum in such a situation.

A major diplomatic spat has developed between Ireland and the UK after Ms McEntee said there was a significant increase in the number of asylum-seekers arriving in Ireland from across the Border.

After it was suggested the increase could be driven by migrants fearing the UK’s Rwanda plan, Mr Sunak said that showed the plan’s effect.

The policy aims to send asylum-seekers to the east African nation to deter others from crossing the English Channel.

Ministers here believe the UK position is “posturing” ahead of local elections there but also concede they have handed the Conservative Party a pre-election gift by suggesting its threat to send migrants to Rwanda is leading to an influx of people leaving the UK for Ireland.

It comes as a document suggests the UK has lost contact with thousands of people there who are eligible to be sent to Rwanda under Mr Sunak’s controversial new scheme to effectively outsource asylum-seekers to the African country while they await a decision on their status.

In a statement issued earlier today, a spokesperson for Mr Sunak said there are “operational agreements” between the UK and Ireland but “not a legal obligation to accept the return of asylum seekers and under those operational arrangements no asylum-seekers have been returned to the UK”.

“It’s up to the UK government who we do and do not accept into the country,” said the spokesperson.

Meanwhile, the Department of Justice has said its own expanding role in immigration registration duties would “free up” 100 gardaí for frontline enforcement work, including deportations. However, it said gardaí will not be assigned to physically police the Border.

In a statement, the department later clarified that the work required to make the 100 gardaí available for the frontline duties would take up to 12 months.

While it emphasised that the protection of an open border on the island of Ireland is a “key priority to the communities on both sides”, it added that “it is not the case that these gardaí will be assigned to physically police the border with Northern Ireland”.

Ms McDonald accused the Government of displaying “incredible incompetence” over migration issues.

“At a time when we need calm and an assured response, we get panic. At a time when we need competence and clear communication, we get contradiction,” she told the Taoiseach.

“This has been a feature confirming the widespread view that your Government is not on top of issues relating to migration, that nobody competent is in charge.

“Scrambling around to turn hotels, B&Bs, office blocks into Direct Provision centres or having tents line the length of Mount Street in Dublin are not the hallmarks of a well-managed system.

“Ireland is a welcoming, compassionate country and there is no room for racism here.

“We know there are those who would seek to exploit this serious issue to sow division and hatred.

“That is why clarity is so important. The truth is that your Government from the beginning has made a complete mess of the handling of this situation. We need an immigration system that is fair, efficient and enforced.

“Your Government says that you have an agreement with Britain, the British government saying that you do not. Which is it? If you do have such an agreement, has the Irish state made use of this agreement?

“You’ve actually managed to spread this confusion now to between two governments, about an agreement which exists or does not exist. Which is it?”

Mr Harris responded by saying: “I’m very clear that those operational agreements are in place under the Common Travel Area. And I’m very clear that we’re going to legislate to have absolute clarity so that it can work. But I’m also really clear that it’s only one of a number of things we need to do.”

Labour leader Ivana Bacik said the Government’s immigration plan has “failed”.

“The clearest evidence of that failure is just around the corner. Hundreds of people sleeping in tents and makeshift shelters in desperately unsanitary conditions on Mount Street,” she said.

“I was there again this morning, meeting with some of those people, also speaking with local residents and traders who are sympathetic to the desperate plight of those in tents but also deeply frustrated at the deteriorating situation, with more and more tents each day.

“No access to sanitation, no sign of any action from government. It is inhumane and unsustainable.”

Ms Bacik also said that Ireland cannot force the UK or any other country to take back African asylum-seekers after the State here has turned them away.

“We’ve heard about an operational agreement but we need clarity on what that is and what obligation is on Britain,” she said.

She also said that Britain’s Rwanda Bill undermines the Good Friday Agreement.

There has been an increase in the number of asylum-seekers arriving in Ireland in recent years, with up to 16,000 new arrivals projected to arrive every year. This is up from 3,000-5,000 between 2015 and 2019.