Much has been written on the wholly inappropriate care arrangements for separated children in Ireland (see here, here, here, here and here). This research has found gross inadequacies in the separated child protection system; however the Irish government, in light of the Ryan Report, has committed itself to ensuring that separated children are treated on par with other children in the care system. This post seeks to examine the responses of the Irish state to those children who live with parent(s) or guardian(s) within the direct provision system, with a particular focus on rights of the child. As of May 2010, there were 2,034 children living in direct provision accommodation. From the May 2010 statistics provided by the Reception and Integration Agency, it is likely that many of these children have spent a considerable period of time within the direct provision system. With their parents prohibited from working, there is an enforced reliance on the direct provision system which I have previously argued signifies a move towards a more controlling and less rights based social security system. Children within direct provision will be accommodated with their parents in a single room. Where the child is part of a one-parent family, the accommodation may be shared with another one-parent family. Breakfasts, school lunches and dinners are provided to the children, the child may never have witnessed their parents preparing food. School friends may be denied access to the direct provision centre, so opportunities for play and social interaction is severely lessened. The location of the direct provision accommodation, usually away and apart from the host community, means that a child’s interaction with the local community is minimised. In terms of social welfare entitlement, the child’s parent will receive €9.60 per week in addition to the €19.60 which each parent will receive. Supplementary welfare allowance, a residual and discretionary welfare payment, will be paid by the Health Services Executive to cover the cost of school uniforms, books and in some instances school trips. In general, parents will not be able to claim child benefit for their children, and the recent Social Welfare and Pensions (No.2) Act 2010 now states that asylum seekers cannot be considered to be habitually resident, and therefore legislatively prohibited from receiving child benefit. So what then are the international laws and standards which apply to such children?
International Law & Standards
Article 2(1) of the CRC provides that States must implement their obligations set out in article 2 to “respect and ensure the rights set out in the present Convention to each child within their jurisdiction without discrimination of any kind”. The Convention is in no way limited to just citizens or residents, but encompasses all children, regardless of legal status, within a signatory state. Article 22 of the Convention states that children seeking refugee status, or who already has required such status, are entitled to the rights set out in the CRC. The socio-economic rights of children are outlined in a variety of articles and mainly reinforce recognised rights under the International Bill of Human Rights. All children have the right to health, the right to benefit from social security, the right to an adequate standard of living, the right to education and the right to rest and leisure. The Committee has stated that the duty of non-discrimination “prohibits differences in treatment on grounds that are not arbitrarily and objectively justifiable, including nationality.” However, has increasingly found that differences in socio-economic rights enjoyment between citizen children and non-citizen children cannot be justified.
In all dealings with asylum seeking children, the best interests of the child is to be the primary consideration and emphasises that special care needs to be taken of already disadvantaged groups within society and this includes refugee and asylum seeking children. The Committee has criticised the establishment of discrimination within the fields of health, social welfare and education between citizen children and non-national children. In relation to the right of a child to an adequate standard of living, the Committee has expressed concern where vulnerable children were living in situations where the household income remains significantly lower than the national mean. Asylum seeking children, be they in the care of their parents, or unaccompanied, should also have full access to a range of services. In addition, asylum seeking families should not be discriminated against in provision of basic welfare entitlements that could affect the children in that family.
However, the CRC is not the only convention relevant to socio-economic rights. While the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) have adopted a similar approach to the Children’s Committee on issues relating to female asylum seekers, the positions of the other human rights treaty bodies is more complex. The Committee on the Elimination of Racial Discrimination (CERD) has noted with concern the policies of dispersal and direct provision within Ireland and found that States parties were under an obligation to “take all necessary steps with a view to avoiding negative consequences for individual asylum seekers and to adopt measures promoting their full participation in society.” The Committee had previously criticised the United Kingdom for withdrawing certain social services to asylum seekers and expressed the view that “…it is a matter of great concern that most of the affected persons would be persons belonging to ethnic minorities.” However at the same time praised the UK for providing an insular and discrete social welfare system for those seeking asylum. In reference to reception standards for asylum seekers in Europe, United Nations High Commission for Refugees has stated that Article 11 of the Economic, Social and Cultural Rights Convention obliges States parties to ensure asylees enjoy an adequate standard of living throughout the status determination procedure. However, UNHCR specifically remarked that States could provide this ‘in kind’, in the form of hostel bed and board or by giving access to the social welfare system. Some reference was however made for the need to take into account children who arrive with their parents, and to their medical and social needs.
Ireland and International Obligations
With a large group of particularly vulnerable children within the direct provision system, it is somewhat worrying that other human rights treaty bodies have failed to adequately address the human rights issues which arise from this. While a certain period in a centre which can cater for the needs of newly arriving asylum seekers is an eminently sensible approach, the fact of the matter is that many children within direct provision have spent considerable periods of time living in this communal setting. At the same time, both UNHCR and CERD have in some ways legitimised ‘in kind’ support systems, while the Committee on the Rights of the Child places much more emphasis on treating children as individual human beings with individual rights, which are to be respected regardless of their status (or that of their parents) in the host country. While the proposed constitutional amendment on the rights of the child is very welcome, the approach of the Irish superior courts to issues of constitutional socio-economic rights is less than impressive. Therefore, the extent to which this amendment as currently worded would assist children living in direct provision needs to be questioned.
The Free Legal Advice Centre’s One Size Doesn’t Fit All report has noted the detrimental impact the current system is having on children living in direct provision. If Ireland is really serious about the rights of the child, then it is of utmost importance that the recommendations made in this report regarding children should be considered as a matter of urgency. Time limiting residency within direct provision accommodation, inclusion within the mainstream social security children, ensuring parents can properly protect the best interests of their child and ensuring the reception system is human rights compliant would go some way to ensuring that all children within Ireland are cherished equally.