N.B. With the coming into force of the Social Welfare (Covid-19) (Amendment) Act 2020 on 05 August 2020, asylum seekers are now entitled to Pandemic Unemployment Payment. This includes back-pay since 13 March 2020. Asylum seekers, living in direct provision, who lost employment at any stage due to Covid-19, should apply for PUP by 17 September 2020 here.
The Covid-19 pandemic resulted in significant changes to the state maintenance of salaries, through the Temporary Covid-19 Wage Subsidy Scheme, as well as increased rates of payment of Illness Benefit for workers with a suspected or confirmed Covid-19 diagnosis. Both were introduced by way of parliamentary debate and legislation. Yet, Pandemic Unemployment Payment (PUP), another key income guarantee for those who lost their jobs due to the pandemic, was introduced as an administrative measure, without legislative underpinning. Those who lost their jobs due to the Covid-19 Pandemic have been entitled to Pandemic Unemployment Payment (PUP) . The key qualifying conditions to receive this payment are:
(1) an employee lost her job due to the pandemic;
(2) her employer could no longer continue to pay her.
Initially, PUP was paid at the same rate as jobseekers allowance and benefit of €203 per week, but this was increased to €350 per week in March. Due to the work of the Migrant Rights Centre for Ireland, undocumented workers are entitled to the payment. While swift action may be necessary to guarantee rights in times of crisis, it nevertheless reflects governmental trends to restrict Oireachtas oversight within the social welfare system. When social rights lack a legislative basis, social rights can be endangered through intrusive bureaucratic crafting and change, although always with tacit or explicit ministerial/government approval. When introduced PUP was only to be paid to persons who did not have any other entitlement to a full rate social assistance payment, but as the scheme morphed, inclusions broadened. Except, as it turned out, for asylum seekers who had lost their jobs. Rather than being entitled to the €350 rate, only Daily Expenses/Direct Provision Allowance of €38.80 per week would be paid.
The ability to permit government changes at will should be avoided, and our parliamentary democracy should demand (but unfortunately does not) more control over social rights protections. Non-legislative schemes also enjoy near unfettered reshaping by senior civil servants, albeit with Ministerial approval.
The Process of Excluding Asylum Seekers from PUP
A recently granted Freedom of Information Act request sheds light on the exclusion of asylum seekers in direct provision who had been working, from receiving Pandemic Unemployment Payment (PUP). Some officials in the Department of Employment and Social Affairs (DEASP) initially took the approach persons living in direct provision accommodation centres and who had met all stated PUP conditions, “appeared” to qualify for the payment. Indeed, PUP payments had been granted to asylum seekers who had lost their jobs when PUP was initially introduced. These payments were then subsequently withdrawn . So why did DEASP eventually decide to interpret the administrative, non legislative Pandemic Unemployment Payment scheme as excluding asylum seekers?
On St. Patrick’s Day 2020, the Principle Officer for Supplementary Welfare Allowance schemes stated that PUP should not be paid to persons in direct provision “receiving [daily expenses allowance] DEA”. Over the following days, this issue arose again, with an official within DEASP stating that once asylum applicants had been working with permission, then they should be entitled to PUP. Emails between officials in DEASP, responding to the Irish Refugee Council, highlighted the differing positions being taken in the Department, one strand of argument being that people in direct provision, who lost their jobs due to Covid-19 crisis, clearly met the published qualifying criteria. It was not until 19 March that, DEASP officials communicated its interpretation of the PUP scheme to other social protection officers around the country-
(i) an asylum seeker living in a direct provision accommodation centre and who had lost their job due to Covid-19 would not be entitled to PUP;
(ii) an asylum seeker not living in a direct provision accomodation centre and who lost their job due to Covid-19 would be entitled to PUP.
Discussions within DEASP on an article on this issue that appeared on Joe.ie, a DEASP Assistant Secretary exploring why asylum seekers who otherwise qualified from PUP, were being excluded:
its not that we specifically want to exclude them, but their outgoings are covered by the state, whereas other PUP recipients have to meet their own costs. We are making PUP available to other cohorts who get a payment so the rationale for excluding them cited in the article doesn’t stack up. When I look at the PUP info on our site though, there’s nothing to exclude DP[Direct Provision]: if you’ve lost employment and are 18-66 you get it (including non EU/EEA workers)…
[N]ow that we are paying PUP concurrently with other payments and to other non
EU/EEA workers, and so long as there is a loss of employment, those receiving DEA should
probably get PUP too.
However, 23 March, is the first FOI record showing that the Secretary General of DEASP decided that asylum seekers who lost their jobs, where they reside in direct provision, would be excluded from PUP. The confirmation of this exclusion happened, not by legislation, but as a tracked Microsoft Word comment in a draft administrative circular. The Department of Justice were informed of DEASP’s approach to asylum seekers and PUP, with one Justice official noting the issue was ‘ambiguous’. In response, the a DEASP Assistant Secretary asked again for an explanation as to why asylum seekers were being excluded by DEASP policy. The response, from a DEASP Principle Officer, is worth providing in full,
[Daily Expenses/Direct Provision Allowance] DEA isn’t the issue – it’s the fact that the State is already meeting their accommodation and meals requirements while they reside in IPAS accommodation. If they are in IPAS accommodation, they are entitled to DEA. If they don’t live in IPAS accommodation they don’t get DEA and would be entitled to receive the PUP. These people still have to accommodate and feed themselves. Anyone who is waiting more than 9 months for a decision on their application for International Protection is entitled to work. There is no mechanism in place to provide for deductions by IPAS in respect of the accommodation/meals nor is there a mechanism currently which allows us to reduce the rate of DEA. Neither can reduce the rate paid to individual who residing in IPAS accommodation and who is working for an adult or child dependant.
Legislation may not change anything…but…
When criteria for social right entitlement is nothing more than emails and administrative circulars, extraneous issues as identified in the quote above take on a life of their own. Accommodation is already provided in direct provision centres, there is no acknowledgement of potential entitlement of others on PUP to rent supplement/housing assistance payment. While there is a power to reduce daily expenses/direct provision allowance under law for asylum seekers who are working, DEASP has not done so. Other operational changes to PUP emerged, so that if an asylum seeker had been working, previously, and moved out of direct provision accommodation during Covid-19 crisis, and had moved in with friends- she would not be entitled to PUP. All the chopping and changing, all the discovered rules. This is what happens when policy and practice is made up on the huff without any legislative underpinning.
On 23rd April DEASP decided not to get legal advice on the exclusion of asylum seekers in direct provision who would have otherwise qualified for PUP, the reasoning provided,
“legislation is being prepared regarding providing a discrete statutory basis for PUP”
So it’s likely, asylum seekers will continue to be excluded from PUP. Only now, we get to see which members of our Parliament vote for this exclusion when the legislation is enacted (I’m ignoring the debate as to whether laws can be passed at the moment). Attempts to argue for a temporary increase to daily expenses/direct provision allowance has fallen on deaf ears. When legislation on PUP does emerge, then the continued exclusion of asylum seekers who would have qualified for this payment but for administrative fiat of officials in DEASP, should be rectified.
For those who have been impacted by this administrative decision of DEASP, a complaint to the Ombudsman might be justified.
N.B. With the coming into force of the Social Welfare (Covid-19) (Amendment) Act 2020 on 05 August 2020, asylum seekers are now entitled to Pandemic Unemployment Payment. This includes back-pay since 13 March 2020. Asylum seekers who lost employment at any stage, should apply for PUP by 17 September 2020 here.
Liam Thornton 