On February 28 2014, UCD Human Rights Network hosted a seminar, Direct Provision: A Challenge to Law, A Challenge to Rights. Senator Jillian van Turnhout discussed, amongst other things, political engagement with the direct provision system. Kirsty Linkin, Law Centre (NI) discussed the impact of the Northern Ireland case, ALJ v Secretary of State for the Home Department (summary of this case here). You can access Kirsty’s slides here: Law Centre (NI) Direct Provision & the ALJ Case in Northern Ireland . Sue Conlan, from the Irish Refugee Council, examined the system of direct provision, with specific reference to framing an alternative to direct provision.
I spoke on the use of law to challenge direct provision. My speaking notes for this are below. My slides can be accessed here: Using Law to Challenge Direct Provision.
Firstly, in addition to Prof Colin Scott’s and Senator Jillian van Turnhout’s welcome, can I welcome you to UCD School of Law. I am delighted to see so many of you at this UCD Human Rights Network seminar.
In the next 15 minutes, I will very briefly outline the system of direct provision and highlight the key problematic issues with direct provision, including legality, impact on individuals, children and families.
I will then turn to consider why I believe that law must be used to challenge direct provision, and offer some comments on how Irish, European and International law can assist in undermining the direct provision system.
I will then offer some concluding thoughts.
Direct provision will be 14 years of age on 01 April 2014. Direct Provision has survived a massive economic boom and an enormous economic bust. It has survived moments of significant and deep reflection by the Irish political establishment and Irish society as a whole on how, in decades passed, on the rights of children and societal treatment of women and men in industrial schools, Magdalenes laundries, mental hospitals, borstals and so on. Yet, direct provision remains in place. Society’s capacity to look the other way, to not question or to show scant disregard for the rights of others remains.
For those not familiar with the system, this is an outline of the key attributes of direct provision
Asylum seekers are dispersed to privately run accommodation centres, on a bed and board basis, operated by the Reception and Integration Agency. There is no entitlement to any other welfare payment, bar the direct provision allowance payment of €19.10 per week per adult or €9.60 per week per child.
There is no right to work, on pain of criminal conviction; although asylum seekers are provided with medical cards and education up to leaving certificate (for those below a certain age). Direct provision is not compulsory, and a large minority of asylum seekers do not utilise direct provision.
Lets take a look at some statistics now. By December 2000, some 8 months into operation, there were 3,077 asylum seekers in direct provision. This, as we can see from the next slide, was from a total number of asylum applicants reaching in or about 10,000. The numbers rose of just over 4,100 in 2001, before falling, and continuing to fall until from 2005-2009, the numbers in direct provision increased, while, at the same time, the numbers seeking asylum fell dramatically. In 2009, over 6000 people were resident in direct provision. At the end of December 2013, almost 4,500 people were in direct provision.
With this, lets now consider some problematic aspects of direct provision
Firstly, concerns as regards legality
Something I have raised continuously, direct provision lacks any legal basis. Administrative circulars undermined legislation passed by the Oireachtas until 2009, when, due to a success at the Social Welfare Appeals Office by the Free Legal Advice Centres (FLAC), legislation was passed that legislatively barred asylum seekers from accessing any form of welfare payment. The effect of 2009 legislations means that the administrative arrangements in place for direct provision mean that the Dept of Social Protection should not make the payment, and raises serious questions relating to the Reception and Integration Agency accommodating asylum seekers.
Secondly, Impact on persons in direct provision
We have protest upon protest, minimally attended by the public at large; we have report, after report, swept aside by the political establishment as not reflecting reality. We have well respected people, not known for hyperbole or raising unwarranted issues, raising significant concerns about direct provision, their contributions are ignored or minimised; we have adverse comments on the system of direct provision from the Council of Europe, the UN and most recently the High Court of Northern Ireland. Still, the political system is unmoved.
Time Spent in Direct Provision Increases
There are over 1,200 people, who have spent six or more years in direct provision.
So then, what role for public interest law and why law and why now?
Limited public or political support, but some solace for other issues. We need to combat the majoritarian impulse to denigrate and place at naught the socio-economic rights of asylum seekers. Democracy must value everybody equally, even if the majority does not. There is increased scrutiny from other legal systems, in particular in Northern Ireland, something Kirsty will discuss shortly; there may be an increased role of ECHR and EU law; and there is a recognition for civil society to suggest alternatives.
Public interest law challenges in Ireland have succeeded, with a 2009 decision finding that asylum seekers, if they had been in Ireland long enough and if Ireland has become their centre of interest, could claim child benefit. This is still relevant to those who claimed asylum before May 2009. However, the impact of this was significantly limited by legislation passed by the Oireachtas in 2009, barring asylum seekers from accessing any social assistance payment.
Only today, are we hearing of successes on issues relating to dispersal, with Colin Lenihan from KOD Lyons, who is here, successfully lobbying the Reception and Integration Agency to ensure that a person should not be moved out of their current direct provision accommodation, to allow that person continue methadone treatment.
I do think that it will be exceptionally difficult to get a success that will be rendered hollow by an Oireachtas vote.
Turning to European Union and ECHR Law,
Yes, there has been some successes, but of limited scope or relevance to date to Ireland-the cases mainly deal with preventing absolute poverty. However, I think of particular relevance for Ireland will be the significant time individuals are staying in direct provision, the impact that this is having on physical and mental health, the impact this is having on private and family life, and the enormous delays created by a haphazard system of asylum status determination in Ireland.
And while we await for legal determinations on this issue, lets not forget about using international law to highlight the system of direct provision in Ireland.
Yes, domestic courts seek to ignore international law, and while recognising the difficulties of implementation faced by the victims of the Magdalene system, look at how Justice for the Magdalenes used international treaties to embarrass the political system into acting. This year and next, we will have an opportunity to highlight the system of direct provision and potentially shame the government into acting, before the UN Human Rights Committee and the UN Committee on Economic, Social and Cultural Rights.
The political route to reform is nearly closed, we need to recognise this, but continue to agitate on this front. We need to turn our attention to legal challenges, thinking strategically as regards the type of cases that are brought, the systematic effect of such cases, and the dangers with losing a case . There are limitations in public interest litigation and these will be much clearer to practitioners. Overall, however, the ultimate solution is political, and law is politics, lets not be afraid to get our hands mucky in the murky differentiation between both arenas.
Liam Thornton 