Some 12 years after the introduction of the direct provision system for asylum seekers in Ireland, there is an urgent need for this system to be placed on a legislative basis. Asylum seekers are prohibited from working in Ireland and, since 2009, have no access whatsoever to the general social welfare system. Instead, asylum seekers are provided with accommodation on a bed and board basis, and given an allowance of €19.10 per week per adult and €9.60 per week per child. I have previously discussed issues relating to direct provision on this blog, including value for money, housing and human rights, children in the direct provision system, separated children in Ireland, women in the direct provision system.
Direct provision was introduced in April 2000 due to the perceived pull factor access to the mainstream welfare system was supposedly having on the numbers claiming asylum in Ireland. (My article on the direct provision system provides further background to the introduction of this system). The purported legal basis for the introduction of the system of direct provision was the system of supplementary welfare allowance, whereby the needs of asylum seekers were to be met in kind, through the provision of bed, board and a small allowance. It was not until 2003 that legislation was introduced to prevent asylum seekers from receiving rent allowance. The habitual residence condition was introduced shortly afterwards, which restricted access to welfare payments for those who were not habitually resident in Ireland.
From freedom of information documents that I have received from the Department of Social Protection, this department has expressed concerns, since 2006, that direct provision payments are “ultra vires” the powers of the DSP. In 2006, the now Department of Social Protection (DSP) proposed that direct provision payment should be given a legislative basis. Draft section 24 of the Social Welfare Bill 2007, sought to insert Section 202A(1) into the Social Welfare Consolidation Act 2005. Section 202A(1) provided that a weekly supplement be paid to those who have made an application for refugee status and who reside in accommodation provided by the RIA. However, the legislative proposal was flagged by the now Department of Justice and Equality, who objected to direct provision payment being put into primary legislation. No reasons are apparent within the correspondence as to why the Department of Justice objected to placing direct provision payment on a statutory footing. Further discussions on the moving responsibility for moving direct provision payments from the DSP to Department of Justice did not result in any changes to the direct provision system.
It was not until 2009, after a number of successful cases challenging the presumed exclusion of asylum seekers from receiving all forms of social welfare, taken by the Free Legal Advice Centres, that legislation was introduced to specifically state that those seeking asylum in Ireland could not ever be considered habitually resident. Therefore the presumed legal basis for introduction of direct provision (which was dubious at best), has since 2009, no longer existed. Asylum seekers in Ireland are legislatively prohibited from receiving any form of social assistance under Irish law and therefore, reliance on the supplementary welfare allowance system as the legal basis for direct provision can no longer be maintained.
Further issues arise as regards removal of asylum seekers from direct provision accommodation centres due to misbehaviour. FLAC’s 2010 report on the direct provision system highlighted problems of process and procedure in removing asylum seekers from direct provision accommodation. Late last week, the Irish Times, reported on the case of an asylum seeker who was removed from the direct provision system and homeless for a number of days. While the full information on this case is not available, and the issue is apparently resolved, it highlights the continued inadequacy of the Reception and Integration Agency’s approach to removals. Rendering an asylum seeker homeless, and without food for a number of days, also is a prima facie breach of Article 3 of the European Convention on Human Rights.
While there has not been much movement on the previous Immigration, Residence and Protection Bill under this current government, it is imperative that the dubious legal grounds for the very system of direct provision are remedied as a matter of urgency. Any new legislation will need to:
- Place direct provision accommodation and the direct provision payment on a legislative footing; and
- Put in place a clear framework regarding complaints at direct provision accommodation centres, including a grievance procedure; and
- Place on a legislative footing grounds for removal from accommodation centres, with a clear and independent appeals process.
 Section 13 of the Social Welfare (Miscellaneous Provisions) Act 2003 inserted section 174(3) and (4) into the Social Welfare (Consolidation) Act 1993 and prevented payment of rent allowance to those unlawfully in the State and also to those who had made an application for refugee status. This section has been replaced by section 198(3) of the 2005 Consolidation Act.
 Letter from J. Hynes, Secretary General (DSFA) to S. Aylward, Secretary General (DJELR), 05 May 2006 on ultra vires actions of DSFA in paying DPA and requesting DJELR to take responsibility for this payment.
Letter from D.Watts, Principal Officer (DSFA) to N. Dowling (DJELR), 02 May 2007, on transfer of responsibility for payment of DPA to the DJELR.
 Email from Tom Kennedy (HSE) to Tom Ryan (HSE), 31 March 2009 on CWO withdrawal from payment of DPA; Emails between M. Joyce, SWA Section, Department of Social Protection and Kieran O’ Dwyer, RIA (DJELR), 26 May 2010.