Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

4 courtsThe length of time that asylum seekers reside within direct provision accommodation, continues to cause significant concern, as it has done so for almost seventeen years.  The practical impact of the implementation of the limited recommendations contained within the  McMahon Report still remains to be fully seen. The Minister for Justice and Equality has stated that 80% of all recommendations made by the McMahon Report are implemented or are being implemented. However, this claim has not to date been backed up with comprehensive assessment from the Department of Justice.  The commencement of the International Protection Act 2015 on 31 December 2016, will hopefully ensure that persons in the protection system receive a fair, procedurally proper and clear decisions on whether they qualify for protection in a timely manner. However, as noted by David Costello, Chief International Protection Officer at a seminar last week, there are 4,000 cases to hand in the International Protection Office (IPO) due to the commencement of the International Protection Act[With thanks to Fiona Finn, CEO of NASC for making me aware of this]. Oldest cases will be decided first. Those already with a negative determination of refugee status by the now abolished Office of the Refugee Applications Commissioner under the old law, will return to the IPO for determination of their subsidiary protection claim. If subsidiary protection is rejected by the IPO decision maker, then both refugee and subsidiary protection appeals will be considered by the International Protection Appeals Tribunal. Whether this impacts slightly or majorly on timely and fair delivery of protection decisions remains to be seen. A case decided last week may have significant impacts on the right to a timely decision on a protection claim.

State Obligations and Culpable Delay in Asylum Cases

On Friday, 3rd February, the Free Legal Advice Centres (FLAC) had a significant victory in the High Court, where White J. stated that protection applicants have a right to a proper and timely consideration of their protection claims. [The case D.N (a child), suing by his mother and next friend, A.S., and A.S. v Chief Appeals Officer, Minister for Justice and Equality, Attorney General and the Minister for Social Protection (decision of 3 February 2017) is not yet on Many thanks to Michael Farrell and Yvonne Woods (FLAC) for providing me with a copy of the decision]. The D.N. decision relates to a number of different issues, in particular when the right to claim child benefit arises (see previous High Court decision from January 2017 which White J. followed). Therefore, my engagement with this decision is solely restricted to matters arising which relate to the system of direct provision, which is incidental, or an underlying feature I would argue, to this case.

On the delay in determining the protection claim within a reasonable time frame, White J. noted that D.N.’s parents claimed protection in January 2006. There was a refusal of refugee status for D.N.’s father in January 2007 and for D.N.’s mother, Mrs A.S., in March 2007. An application for subsidiary protection was made by the parents promptly. However, a judicial review of the refugee decision followed, so the subsidiary protection application was stalled. The judicial review was withdrawn by D.N.’s parents in February 2009. The parents ultimately made a renewed subsidiary protection application in January 2010.  A.S. was granted subsidiary protection on 01 May 2012.

White J. noted (at para. 27). that, where there is no question of a protection applicant contributing to the delay, [my emphasis in quote],

If an applicant for refugee status or subsidiary protection or other application to remain in Ireland is in direct provision for a very lengthy time, it is incumbent on [the Minister for Justice and Equality] to ensure that their applications are processed within a reasonable time.

The Minister for Justice was unable to provide any explanation for a two year delay in this case in determining the subsidiary protection application. White J referred  to commentary of Advocate General Bot in the M.M. decision, where AG Bot criticised the entirety of Ireland’s (then) status determination systems for a delay of two years and three months. AG Bot deemed this delay to be “manifestly unreasonable”.  White J. adopted this persuasive reasoning, including the importance of the right to good administration under EU law (paras 30-31 of D.N. (a child)), in finding that the applicants were entitled to:

  1. A declaration that their rights were violated under European Union law and the constitution, due to the delay in determining the subsidiary protection claim [White J. noted that the subsidiary protection application should have been determined within 12 months]; and,
  2. A.S. was entitled to compensation for this delay. The level of compensation is to be determined at a later stage.

In the course of his judgment, White J. stated (at para. 22), that

The direct provision system meets the basic needs of the applicants but it is far from ideal.

At para. 23 of the decision, White J. stated that,

….very lengthy periods in direct provision are undesirable.

White J.  noted the affidavit of Noel Dowling, Principal Officer in the Reception and Integration Agency, where the rationale for the operation of direct provision was described as preventing “pull factors”, outlined the perceived benefits of maintaining a system similar to the United Kingdom and (at para. 22 of the decision), and,

[h]aving regard to the existence of the common travel area, there is a serious concern that should protection applicants be allowed access to full social welfare housing, and labour rights, Ireland could very quickly find itself dealing with an asylum crisis of significant proportions…

Mrs. A.S. (at para 23 of decision) noted in her affidavit that she was a qualified nurse, her husband a qualified engineer, who

…found it deeply frustrating that we could not use our professional skills and expertise to provide for our son and establish an individual family home for him instead of the institutionalised regime in Mosney

The precise impact of this decision will take time to become clear. However, for now, it can be stated  that a two-year delay in deciding a subsidiary protection application (and one would also imagine a refugee application) for those who are subsequently recognised as in need of protection, will give rise to a right to compensation for violation of constitutional and EU rights to good and proper administration. It is important to note that this may not impact on the rights of those who are ultimately not recognised as being in need of protection. Nor will it apply where the reasons for delay can be placed upon an applicant. With the commencement of the single procedure since 31 December 2016, it would be arguable that the entirety of the protection claim should not (unless there are good reasons) go beyond one year. Yet of course, it remains to be seen whether this decision will be supplanted onto the new single procedure.

“Time” and Direct Provision in the Irish Courts

I have concerns about seeing the core issue with direct provision as being one of “time”. Mrs A.S’ affidavit noted that the facilities in Mosney and low level of direct provision allowance (€19.10 per week per adult; €15.60 per week per child) were merely symptoms of a highly disciplinarian regime for containment of asylum seekers in Ireland.  Reducing issues with direct provision to solely an issue of time is reductive. Yet, “time” is the issue identified within political and judicial discourses as the key problem with direct provision. The focus on time can see soothing political and judicial statements of regret and concern, yet limited legal avenues, until now, to reclaim the most basic of human rights to control over one’s life.  In the first case that challenged the system of direct provision directly before the High Court,  “time” was seen as the core question. The applicant in that case, Ms C.A., would eventually be granted subsidiary protection. In the costs decision for this case, Mr Justice Colm MacEoichaidh, noted (at para 26):

That a vulnerable group of people have been living in the challenging circumstances of direct provision for extremely lengthy periods of time, well beyond the six months for which the scheme was intended, is exclusively attributable to inefficiencies on the State side. The sorry saga of direct provision cannot be described as the State’s finest hour. A legal challenge of some sort was surely inevitable – as inevitable as the public campaign addressed to the Government. To award the respondent the costs of the issues which it won would have a chilling effect on litigation of this sort and might have the effect of denying vulnerable and marginalised people their constitutional right of access to the courts.

Time in direct provision, as an issue of judicial concern, also arose in the right to work for asylum seekers case of N.H.V. (Burma).  (You can read an excellent summary of this case by Maria Hennessy here). The majority of the Court of Appeal (Hogan J.’s dissent here), noted the “unfortunate situation” (para 25) of Mr. N.H.V, who had been waiting a lawful decision on whether he was entitled to protection from Ireland for over seven years at the time of the Court of Appeal decision. However, legal interpretation of the prohibition  of the right to work for refugee and subsidiary protection applicants found that there was no breach of constitutional or other fundamental rights. Rather, according to Finlay Geoghegan J. (at para. 31),

the real complaint in this case is the delay which has occurred in the processing of the appellant’s asylum application…[Mr N.H.V.] may have constitutionally protected right to fair procedures, although the ambit of that right remains to be determined.

The decision is now being appealed to the Supreme Court. However, whether the right to work issues will be considered by the Supreme Court is unclear, given that Mr N.H.V. was recognised as a refugee,  eight years after his initial application. In a December 2016 Supreme Court decision (involving whether the denial or reduction of the right to education on racial/ethnicity  grounds was persecution),  Clarke J.  and Charleton J.  both noted that  the Supreme Court was faced with a case of a ten year old child (E.D.) whose refugee claim had not been ultimately determined for a period of eight years.  The Supreme Court was not criticising the child’s parents for bringing a judicial review (they had succeeded in the High Court), nor the decision maker in the Refugee Appeals Tribunal, whose initial decision was restored by the Supreme Court. Charleton J., at para 13  of his decision, stated:

With the change in our laws by referendum through the 27th amendment to the Constitution in 2004 and the economic turmoil of banking irresponsibility which became manifest in 2008, numbers of applicants have been affected. Possibly, part of the delays which characterise the asylum application system is due to the piecemeal adjustment to procedures which had meant that those applying for refugee status could not, and were not required to, apply for subsidiary protection at the same time. Hence, there were several hearings and multiple possibilities for judicial review applications, the volume of which overwhelmed court resources. Judges were no doubt anxious to search for genuine applicants and a complex web of case law built up. Both phenomena fed into each other and contributed to the kind of delay that this case exemplifies. This process of the review of asylum decisions by the High Court is still one of judicial review. The form of orders has not been shown by the relevant precedents to be important in this area, while jurisdiction in terms of the analysis of fact amounting to unreasonableness and reasons for decisions as to conclusions have come to the fore.

That direct provision may have to be “endured” for 1 year, 2 years, 5 years, or 8 years reflects poorly on Irish law, politics and society. The D.N. (a child) decision is exceptionally welcome. The Courts have become used to dealing with a significant number of individuals whose lives have been paused or delayed  for several years by poor State administrative practices within refugee/subsidiary protection decision making. That such a delay decision has now been made should not have come as a major surprise to the institutions of the State. At one level, providing an avenue to punish the State, retrospectively, for poor administrative decision making processes, is not before time. But this, I’d argue, is not recognising fully the harms that can be caused in the system of direct provision. I feel uncomfortable with a judicial system whose decisions, to my mind, do not flesh out constitutional concepts of human dignity and ponder more forcefully the powers and limits of a State to condemn individuals to the highly restrictive and punitive direct provision system.