All this week on the blog, I am devoting special analysis to the Government’s commitment to opt-in to the EU’s Reception Directive (2013). This commitment has arisen due to the Supreme Court decision which has held that the absolute prohibition on the right to work for asylum seekers is unconstitutional. By February 2018, the State will have to provide asylum seekers with some kind of right to work (although this is not absolute, and in all likelihood will come with restrictions). In response to this Supreme Court judgment, a taskforce was established, who recommended to the Minister for Justice and Equality, that Ireland ‘opt-in’ to the EU’s Reception Directive. The EU Reception Directive recognises a number of rights that asylum seekers have, including, the right to a dignified standard of living; the right to be provided with some form of shelter; a right to education for children; a limited right to work, and, the protection of particularly vulnerable asylum seekers. Ireland, along with the United Kingdom, is not automatically bound by EU asylum law, and must exercise an ‘opt-in’, in order for measures of EU law to apply within Ireland. In terms of what measures Ireland has or has not opted into, this is the current picture:
[For an excellent overview of EU law and asylum, see Colin Yeo’s post on the Free Movement Blog here]
Motions have now been placed before the Dáil and Seanad to commence the formal opt-in process, with the matter been sent to the Joint Committee on Justice & Equality. Ireland must show how it complies with each provision of the EU Reception Directive before the European Commission will permit the ‘opt-in’. This will take at least four months from the date Ireland communicates its desire to ‘opt-in’ (but as indicated already by the Supreme Court, their declaration of unconstitutionality relating to the right to work will finalise on February 09th.
There are two core reasons why Ireland did not opt in to the EU Reception Directive initially. First, the issue of the common travel area. Advocat General Spunzar, noted (albeit before Brexit…)
If the United Kingdom decided that it would no longer rely on its special power not to participate in the freedom, security and justice area, Ireland would decide likewise, for the only reason for its position is that it is linked to the United Kingdom by that common travel area.
The Department of Justice & Equality maintained for many years, that the Common Travel Area had to be protected at all costs. In the 2017 case of D.N. before the High Court, an official at the Department of Justice swore an affidavit which stated (my emphasis):
…. given the common travel area and the large number of illegal immigrants residing in the United Kingdom. This was estimated by the London School of Economics in 2009 to be approximately 618,000 around 70% of whom live in London. That study relied on census data of 2001, and had a margin of error of 200,000. Having regard to the existence of the common travel area, there is the 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.
For several years, many civil society organisations and the Irish Human Rights and Equality Commission, called on Ireland to ‘opt-in’ to the EU’s Reception Directive. This was steadfastly rejected by the Department of Justice, who (in addition to the Common Travel Area arguments), stated that Ireland in essence complied with the EU’s Reception Directive, but would not opt-in as the State believed granting the right to work would result in more asylum seekers coming to Ireland. The McMahon Report only recommended (para. 3.178) that Ireland (my emphasis):
“…opt-in to all instruments of the Common European Asylum System, unless clear and objectively justifiable reasons can be advanced not to.”
The McMahon Report only recommended that the right to work be granted once the single decision making procedure, adopted by the International Protection Act 2015, was “operating efficiently” (para. 5.49). This recommendation was made in the context of 2015, when first instance decisions on asylum claims took on average nine months. However, this picture has changed dramatically, as asylum seekers may wait up to 20 months before their interview in the International Protection Office.
The hysterics of Justice, as accepted by those who drafted the McMahon Report, have, for now, been put to one-side. The State has gone beyond the Supreme Court right to work decision in deciding to commence opt-in to the Reception Directive. The decision to opt-in to the Reception Directive is a welcome one. However, there is a key question, what practical effect will Ireland’s opt-in to the EU Reception Directive have on the rights of asylum seekers in Ireland?
Over the next five days on this blog, I will reflect on this important question. Later today (Monday), I will discuss how Ireland must now legislate for the rights of asylum seekers. From Tuesday to Friday, focus then turns to precise elements of the EU Reception Directive, and how these will have to be implemented in Irish law. On Tuesday, I will explore the impact the right to work provisions in the Directive may have on Irish law. On Wednesday, I consider whether Ireland’s opt-in to the EU Reception Directive will impact on the continued use of direct provision accommodation centres. On Thursday, I will discuss the impact the EU Reception Directive may have on the current rates of direct provision allowance (€21.60 per adult and per child). On Friday, I will discuss the rights of vulnerable asylum seekers in Ireland, and the potential impact of the EU Reception Directive.
This symposium expands upon and updates a book chapter which I published in 2016: A View from Outside the EU Reception Acquis: Reception Rights for Asylum Seekers in Ireland in P. Minderhoud and K. Zwaan (eds), The recast Reception Conditions Directive: Central Themes, Problem Issues, and Implementation in Selected Member States (Oisterwijk; WLP, 2016).