Today, 29 April 2014, an important case commenced challenging the system of direct provision in Ireland In C.A and T.A. (a minor) v Minister for Justice and Equality, Minister for Social Protection, the Attorney General and Ireland (Record No. 2013/751/JR). Today, the case was dominated by procedural arguments. The applicants are challenging the system of direct provision on a number of grounds, including:
1. Lack of Statutory Basis for Direct Provision & Nature of Direct Provision Allowance
The applicants are arguing that the lack of a statutory basis for the system of direct provision and payment of direct provision allowance of €19.10 per week per adult and €9.60 per week, per child, has no legal basis, continues to operate unlawfully, through ministerial circulars and administrative arrangements without any legal basis. This, it is argued, is a violation of Article 15.2.1. of the Constitution which provides the: “sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State”. On this blog, I have repeatedly made the argument that the direct provision system is without any legal basis and by operating the system of direct provision, the various government departments are acting outside their powers (see here, here, here, here, here, here ,
here and here). I have also examined this issue in an article in the Journal of Social Security Law, “Social Welfare Law and Asylum Seekers in Ireland: An Anatomy of Exclusion” (a pre-peer reviewed version of this article is available here).
2. System of Direct Provision is a Violation Rights under the Irish Constitution, the European Convention on Human Rights and the European Charter of Fundamental Rights
The applicants are arguing that the system of direct provision, the lack of any independent complaints process, the constant surveillance, control of what an applicant can eat violate the following legally protected rights:
- Right to family and private life;
- Rights of the child (see the ALJ case from Northern Ireland that accepted that direct provision in Ireland was not in the best interests of the child);
- Personal choice and autonomy, freedom of movement and residence (see similar criticisms in the ESRI’s report on reception for asylum seekers in Ireland and in a multitude of reports dating back to 2000).
The issue of the human rights impact of direct provision has been examined extensively on this blog. See also here for a discussion on the socio-economic rights of asylum seekers in Europe and international law.
3. The Refusal to Consider the Adult Subsidiary Protection Applicant‘s Right to Work
The adult applicant in this case had requested permission to work, however this was refused by the Minister for Justice in 2013. The applicant contends that as a subsidiary protection applicant, the Minister cannot rely on Section 9(4) of the Refugee Act 1996 (which prohibits asylum seekers from seeking or entering employment). The Minister must consider her application to be allowed work in its own right.
4. Blanket Exclusion of Asylum Seekers and those seeking Subsidiary Protection from Accessing Social
The applicant is further challenging the absolute exclusion of those seeking asylum/subsidiary protection from accessing social welfare rights under the Social Welfare Act 2005 (as amended) (see here and here).
This case is of significant interest to asylum seekers, so many of whom have spent several years in the asylum process. I will provide regular updates on this case on Human Rights in Ireland as the case progresses (in so far as I can). For now, this case represents yet another challenge to the system of direct provision, a system whose purpose is to dehumanise, deter, and violate the very essence of human dignity.
A summary of the arguments in Day Two of the case can be found here.
Liam Thornton 