The case 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), challenging the constitutional, legislative and rights basis of the direct provision system continued before Mr Justice Colm Mac Eochaidh in Court 13 of the High Court today. A number of procedural and substantive issues were raised.
1. Power of the Executive to Introduce Administrative Direct Provision Scheme
One of the arguments of the applicants is that the Executive does not have the power to introduce the direct provision scheme on an administrative basis due to the Social Welfare (Consolidation) Act 2005 (as amended) prohibiting asylum seekers from receiving most payments under Irish social welfare law. Judge Mac Eochaidh requested the applicants and the respondents (the State) to consider whether the hearing should proceed on this point alone, leave all other arguments aside. After receiving instructions from the clients, lead counsel for the applicants, Mr Saul Woolfson BL stated that the preference would be for the entirety of the arguments to be considered. The case is now proceeding on this basis.
2. The Budget and Direct Provision
Mr Justice Mac Eochaidh asked counsel for the applicants where was direct provision expenditure approved in the State’s budgetary processes. The Department of Justice and Equality Estimates for 2014 (as in previous years 2013, 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2001, 2000) makes provision for ‘Asylum Seeker Accommodation’. In 2008 (p. 181), 2009 (p. 183), 2010 (p. 185), 2011 (p. 176), the Department of Social Protection as part of it’s public expenditure budget classified direct provision allowance as a “Supplementary Welfare Payment”. There is no mention of direct provision allowance in any of the budgetary documents for 2012, 2013 or 2014. A report by the Comptroller and Auditor General in 2011 noted that the figure for ‘basic supplementary allowance’ excluded ‘direct provision allowance’ (see Chapter 24, para 24.17). The 2012 Report makes no mention of direct provision allowance. The payment of direct provision allowance has disappeared from all public expenditure documents post 2011. The Justice Vote simply covers asylum seeker accommodation. The Social Protection Budget makes no mention of direct provision allowance. For 2009, 2010 and 2011 however, it was a separate voted item of expenditure for Social Protection/Social and Family Affairs. Administratively, there appears to be no change whatsoever in how direct provision allowance for asylum seekers in paid.
3. The Direct Provision Circulars, Departmental Communications & Powers of the Executive
Counsel for the applicants then opened to the court a large number of FOI documents from 1998 to 2010, in making the arguments that direct provision allowance was in reality a supplementary welfare allowance payment, and due to Section 15(2) of the Social Welfare and Pensions Act (No. 2) it is not within the powers of the Department of Social Protection to now provide this payment. (A number of these documents have previously been highlighted on this blog and elsewhere, see here, here, here, here andhere). Mr Justice Mac Eochaidh then questioned counsel for the applicants on this issue, seemed weary of describing what is done as ‘manipulation’ of social welfare law and also whether the State could simply legislate to give effect to direct provision allowance payments and accommodation. Counsel for the applicants accepted that the State could do this, once it complied with constitutional, ECHR and EUCFR provisions on human dignity, not subjecting people to inhuman and degrading treatment and not violating the right to private and family life. Mr Justice Mac Eochaidh noted that the Courts would never intervene to tell the Oireachtas was the precise level of payment would be, just because the Court felt that it was not as generous as it should be.
Mr Justice Mac Eochaidh also stated that in correspondence between officials, the words ‘supplementary welfare allowance’ or ‘BASI’ (Basic Supplementary Welfare Allowance) could possibly just be a means of short-hand to describe the administrative payment of direct provision allowance. Councel for the applicants, Woolfson, however emphasised that there were clear separation of powers issues that the High Court may consider, whereby the Oireachtas has withdrawn most social welfare payments for asylum seekers, but the Executive, then sets up a parallel system. Woolfson emphasised that the constitutional framework in place does not permit the Executive to do as it pleases, it is governed by the rule of law. Woolfson also noted that those in ‘step-down’ self catering direct provision centres continue to get full rate Supplementary Welfare Allowance minus a deduction for accommodation provided for by the Reception and Integration Agency.
The case continues tomorrow and is expected to last for about two more weeks.