Asylum seekers have a non-legislative right to shelter in Ireland. Rather than this right to shelter being provided under legislation, it emerges from practice set down within administrative circulars and from information issued by Reception and Integration Agency (RIA). If an asylum seeker chooses not to enter into the accommodation centres, then the asylum seeker is responsible for meeting her own shelter needs and will not be entitled to the social assistance payment, known as direct provision allowance. Ireland operates a system of dispersal to accommodation centres for asylum seekers. In Ireland, asylum seekers are dispersed to one of the 32 direct provision centres on a no-choice basis. RIA have noted that when making decisions on where to disperse an individual asylum seeker (and any other family members) the McMahon Report (at para. 3.301) states that,
vulnerabilities can be identified and taken into account in decisions on dispersal.
However, confusingly, the McMahon Report also states (at para. 4.134) that asylum applicants
… do not have any input as such into the [dispersal] decision-making process.
The usual accommodation arrangements are: families (consisting of two parents and child/children) will be provided with one room; single parents may have to share with another single parent; single applicants will usually share dormitory style rooms.
The highly-institutionalized nature of direct provision accommodation centres, coupled with the significant length of time asylum seekers will be in these centres, has caused concern for over 17 years (see here ). Whether it is being denied the right to have guests (found to be unconstitutional), denied the right to celebrate Christmas, in essence the right to live a life how each individual deems fit, encompasses the system of direct provision accommodation in Ireland.
As seen in the table below, asylum seekers will spend significant time in direct provision (and this will likely increase given the current delays in determining asylum seekers status) (figures obtained from RIA Annual and Monthly Reports):
Will Ireland opting into the EU Reception Directive change any of this. Article 18 of the Reception Directive permits EU Member States to provide accommodation centres (and other forms of shelter) which exclusively house asylum seekers. Once accommodation centres are provided, then other obligations to begin to arise. Under, Article 18(2) of the Reception Directive, Member States must ensure that the accommodation centre must “ensure protection for family life”, as well as permitting visitors, guests, legal advisors and others may meet an asylum seeker in their accommodation centre. In relation to the protection of family life, the words of MacEoicaidh J. in C.A. decision (at para 9.19) may in future prove instructive to lawyers challenging direct provision centres as not protecting family life once the Reception Directive becomes part of Irish law:
Though the Court has heard submissions in respect of the abnormal circumstances in which the minor applicant has been reared, it seems to me that much more should have been done to persuade the Court as to the negative psychological effects of such an environment. It places the Court in an impossible position to invite it to conclude that there is some serious deficiency in the environment in Eglinton when I have no evidence other than the mere assertion of Ms. A and the submission of lawyers that this is so. Though my instinct tells me that ‘direct provision’ is not an ideal environment for rearing children, I cannot assume the skill and knowledge of a psychologist to make conclusions about the suitability of ‘direct provision’ for children. Therefore, again, because of a failure of proof, the contention that the respondents are responsible for creating a negative atmosphere in which the second named applicant is being reared, in breach of relevant ECHR and Constitutional rights must fail.
Gender, age and vulnerability will also have to be considered by the Reception and Integration Agency. Therefore, the automatic dispersal of asylum seekers, without any consideration of their particular individual needs, may no longer be possible due to Article 18(3) and Article 18(5) of the Reception Directive 2013. It remains to be seen whether the Reception and Integration Agency will recognise this new reality, and adopt new procedures for dispersing asylum seekers to accommodation centres. [I will discuss the issue of vulnerable asylum applicants later this week].
All in all, there may have to be changes to the operation of direct provision accommodation centres, most immediately as regards the system of dispersal. However, it should be borne in mind that once the Reception Conditions Directive becomes part of Irish law, additional grounds for legal challenge to the system of direct provision accommodation in individual centres, and how it impacts on individual asylum applicants, may emerge.
Liam Thornton 