The High Court 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 direct provision system is continuing to be heard before Mr Justice Colm Mac Eochaidh (see here and here for background). This purpose of this post is to give a broad flavour of some of the arguments, without going into any detail or assessing each of the arguments made by the applicants or the State. (However many of the arguments raised by the applicants and the State have been analysed on this blog on numerous occasions, but not in the context of this ongoing High Court challenge, see here). The applicants’ have now finished making their core arguments, which have focused on:
- Lack of statutory basis for direct provision and direct provision allowance;
- Violation of significant constitutional and ECHR rights of the applicant in direct provision (inhuman and degrading nature of system, denial of right to private and family life);
- Denial of right to work of subsidiary protection applicants;
- Blanket exclusion of asylum seekers/subsidiary protection applicants from receiving social welfare under social welfare law.
Yesterday, the State commenced its response to the applicants’ case by setting out some ‘big picture’ issues, and in the coming days with build upon its case against the applicants’ claims.
Rationale for Introduction & Operation of Direct Provision & Dispersal
The State began by noting the rationale for the introduction of direct provision. Dispersal was introduced as asylum seekers in the early/late 1990s, tended to congregate around urban centres. Newly arrived asylum seekers may face challenges in accessing housing in the rental sector, and there were/are concerns that permitting asylum seekers to access rent supplement (through the Supplementary Welfare Allowance scheme) would displace equally deserving Irish citizens and other long term lawful migrants in the State from accessing rental accomodation. This resulted in pressure on school places, demands on health services etc. Back then, as now, there were significant shortages in rental accomodation. The welfare system was acting as a ‘pull factor’ for drawing asylum seekers to the State. The State noted that there was a significant symmetary between legislative and government action on the whole issue of reception conditions for asylum seekers. The legislature prevents asylum seekers from accessing rent supplement and any other social welfare payment. The Executive then stepped in to ensure compliance with Ireland’s international obligations not to leave asylum seekers destitute. While direct provision may not be ideal, including not “an ideal environment to raise a child”, the State has to be mindful of other calls upon State resources. The system of direct provision offers services and benefits to meet basic needs, which is the only obligation that the State has. The Courts have accepted in the past (in education) that the State is not obliged to provide a preferred form of special needs education. In terms of the four years that the applicant and her child have been in direct provision, the reasons for this delay was due to challenges before the Irish and European courts on the systems for determining subsidiary protection claims (see result of M.M. decision).
Access to State Resources
The State noted that there is not an unlimited amount of money to spend on asylum seekers. Other population groups also can make claims on State/taxpayer finance. The State is not in a position to determine the number of asylum claims each year, therefore needs flexibility in order to ensure a roof can be provided over the heads of asylum seekers. The State has obligations to taxpayers and must utilise State resources effectively, including through contracting out accommodation for asylum seekers to private operators. The State noted that the applicants’ complaints about lack of choice/autonomy within direct provision were misconstrued. While Article 8 ECHR protects the right to private and family life, the State does not prevent any asylum applicant from living independently, through their own means. State has to mindful of the budgetary context, and this does not extend to allowing an asylum seeker a free choice as regards the choice of accommodation, food, whether to be able to cook this food for herself etc.
Right to Work
In affidavits before the Court, the Reception and Integration Agency noted that when a limited right to work was provided for in 1999, there was a spike in asylum applications after this. The State noted that many in the asylum system are economic migrants rather than “genuine” refugees/persons in need of subsidiary protection.
The case continues today (Friday, 16 May 2014), before a one week break and the case will recommence on Monday, 26 May 2014.
Update August 2014: Argument in the case is now concluded and it is hoped that a decision will be issued in September/October 2014.
Liam Thornton 