Social Welfare Law & Asylum Seekers in Ireland: An Anatomy of Exclusion

JSSLAs noted in July 2013 on this blog, there is currently a challenge to the direct provision system before the Irish courts. The applicants and the State were before Mr Justice Colm MacEochaidh yesterday, September 17 2013 (see report from the Irish Times here and the report of Christine Bohan from The Journal here). The case will be back before Mr Justice MacEochaidh in late October 2013, when it will (hopefully) proceed to a speedy hearing by December.   The outcome of the case may have a profound impact on the much criticised direct provision system (see hereherehere and here). Given the recent and significant criticisms of the system of direct provision by the Northern Ireland High Court, there is a necessity on the Government to fundamentally re-calibrate how Ireland deals with asylum seekers: both in terms of determining whether an individual is entitled to refugee statussubsidiary protection and/or leave to remain AND how our social security system deals with those awaiting a final determination of their protection claim in Ireland.

As regards the system of direct provision and Irish social welfare law, I have argued on several occasions (see herehereherehere and here) that there is no legal basis for the direct provision system and the Departments of Justice and Social Protection are acting outside their powers.

In recent days, An Taoiseach Enda Kenny at the  International Society for the Prevention of Child Abuse and Neglect’s European conference in Dublin stated in his speech:

Neglect is now the most common type of abuse of children.

Picture a child going to school in the rain without a winter coat;
In damp, dirty clothes having not had a breakfast.

Going home with no guarantee of dinner to a cold house not a home.
For that child ‘loving care’ is a luxury. They just want care, basic care. But for many, it doesn’t happen.

Despite these sentiments of An Taoiseach, children (and adults) in direct provision suffer state inflicted neglect and debasement through direct provision. This is justified on the grounds that they are ‘foreign’, they are not citizens,  they are undeserving of our support, conditions in their home countries would be worse.  The State seems destined to repeat history as regards turning a blind eye and providing significant resources to ensure the long term institutionalisation of those seeking protection in this state.

The current case before the High Court further argues that the direct provision system is unconstitutional and/or contrary to the European Convention on Human Rights. In a recent article published in the Journal of Social Security Law, prior to the commencement of this current court action, I set down precisely how the system of direct provision came into being in Ireland.  A pre-peer reviewed version of this article is available here. Relying extensively on documents obtained under the Freedom of Information Act, the article presents a worrying picture of how legal rights can be set at naught through administrative actions. With knowledge of the dubious legal basis for direct provision since 2007, government departments have repeatedly ignored the lack of a legal basis for direct provision. The abstract for this article is as follows:

This article seeks to examine how social welfare rights for asylum seekers in Ireland were placed outside the confines of the law and placed within a non-legislative system, where administrative fiat trumped all notions of asylum seekers as rights bearers. Over a ten year period, asylum seekers were fully excluded from mainstream social assistance structures in place. Welfare rights were (and to a great extent, still are) viewed as being interlinked with an individual’s status as a citizen or lawful resident. Without examining the historical development of the Irish welfare state, the initial reaction to the arrival of asylum seekers included recognition of their welfare rights, as being capable of enforcement and protection within the confines of social welfare law. However, over time, welfare entitlements for asylum seekers were lessened and differentiated from mainstream welfare provision. From an inclusive welfare system that considered need over immigration status, asylum seekers in Ireland have little in the way of definitive legal right or entitlement to the separated system of welfare support, known as direct provision.  The legal and administrative processes used to achieve this separation, and the arguments made to justify placing asylum seekers outside Irish welfare law, are explored in this article. Legal challenges to this separated and lesser system of welfare entitlement, despite some initial success, have generally failed. I argue that this system of separated asylum support has been (and will be allowed) continue, due to the status of asylum seekers as non-citizens, whose continued residence in Ireland is uncertain. Nevertheless, with the imminent introduction of a new Immigration, Residence and Protection Bill, it is now time to provide the direct provision system with a firm statutory footing.