Challenging the Unlawful Exclusion of Asylum Seekers from Pandemic Unemployment Payment

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.

As a legal academic who has never qualified to practice as a lawyer, all I can do is outline why I believe the exclusion of asylum seekers, who should otherwise qualify for PUP, is unlawful. This post, as all blog posts, does not constitute legal advice and is solely my analysis.

Asylum seekers living in direct provision who have lost their jobs due to the Covid-19 pandemic are being unlawfully excluded from Pandemic Unemployment Payment (PUP) by the Department of Employment Affairs and Social Protection.  Entitlement to a social assistance payment, such as PUP, should be based on legislation. But, Social Protection decided not to include PUP within legislation on broad emergency measures passed in March 2020. Previous decisions of Irish Courts (e.g. C.A. case) seem to provide authority that the State may create administrative schemes that result in the granting of monetary payments to people, once this does not conflict with legislation. The extensive discussion on asylum seeker exclusion from PUP  by officials in Social Protection, obtained under the Freedom of Information Act, evidence that there is no lawful basis whatsoever for the exclusion of asylum seekers. The exclusion is based on a St. Patrick’s Day email and tracked changes to a draft circular establishing entitlement to PUP more broadly. From the Freedom of Information documentation released, it is not clear whether the Minister for Social Protection approved this administrative exclusion

The Irish Human Rights Commission wrote to the Minister for Social Protection on 28 May 2020 expressing concern that the exclusion was a violation of the rules of the scheme and of equality guarantees under Irish, EU and ECHR law. It will be easier to challenge the exclusion on legal grounds of illegality and unreasonableness on part of Social Protection officials.

Legal Infirmity One: Shifting Sands on Entitlement

The key basis for entitlement has remained to PUP has remained the same since the introduction of the €350 payment: A person over 18 and under 66, lost their employment due to Covid-19, and are entitled to €350 per week. The rationale for the exclusion of asylum seekers in direct provision by officials in Social Protection appears to be that bed and board is provided by the Department of Justice and therefore asylum seekers do not have to pay for their accommodation and meals.

Yet, no investigation on entitlement of the €350 to non-asylum applicants, their means and circumstances is conducted.  So, why are asylum seekers, who would otherwise qualify subject to scrutiny of needs, when no such needs assessment is permitted for examining qualification for PUP? Indeed, initially any form of social assistance payment would have excluded entitlement to PUP, but this subsequently changed so that persons with certain pre-existing entitlement to a range of social assistance payments are also paid PUP. This distinction in approach was noted as problematic by the Assistant Secretary General for Income Support Policy in Social Protection who noted on 21 March 2020 in an email to the Secretary General of Social Protection,

…now that we are paying PUP concurrently with other [social welfare] payments and to other non-EU/EEA workers, and so long as there is a loss of employment, those receiving DEA [daily expenses/direct provision allowance] should probably get PUP too. (my emphasis)

The only basis for the exclusion of asylum seekers from PUP is that the Secretary General of Social Protection was, according to another Social Protection official, ‘adamant’ that asylum seekers who lost their jobs due to Covid-19, should be excluded from PUP (email dated 01 April 2020). This is not a reasonable basis for excluding asylum seekers, who otherwise qualify, for the administrative PUP payment.

Legal Infirmity Two: Taking Into Account Irrelevant Issues

Discussions by Social Protection officials (here and here) had initially recognized that asylum seekers who lost jobs due to Covid-19 would meet the administrative criteria for PUP. Questions were raised as to whether Direct Provision/Daily Expenses Allowance should be taken from this payment.

On 18 March 2020, an official in Social Protection stated:

…the persons needs are met (accommodation, food, etc) and they receive the DEASP weekly daily expenses allowance payment (€38.80 per wk for adult and €29.80 per child). The DEA payment will continue and isn’t means tested. The person in this situation does not qualify for the pandemic unemployment payment as they are in receipt of a different DEASP payment.

This was further emphasised by a different Social Protection official in an email on 24 March 2020.

Linked with Legal Infirmity One- PUP contains no basis for engaging in any sort of needs assessment of those who qualify for PUP-but administratively only asylum seekers needs/means are considered. By law (Schedule 2 of 2018 Regulations) it is for the Department of Justice, not Social Protection, to determine whether an asylum seeker should be required to pay for direct provision accommodation and food. So if PUP was granted, then with a weekly income of €350 per week, an asylum seeker may be charged €119.00 per week by Justice, not Social Protection. Social Protection cannot simply impose its own off the cuff assessments for exclusion based on ignoring legal provisions that are in place.

Challenging Unlawful Exclusion

If Social Protection want to exclude asylum seekers from PUP, then such a mean spirited approach can only be achieved by legislative change, to general social welfare law or the 2018 Regulations (through amendments to Sch. 1 and 2). As an administrative scheme, there is no appeal mechanism to the Social Welfare Appeals Office (SWAO).

As always, courts should be the very last resort-it’s prohibitively expensive and in my view the Ombudsman’s Office will be able to offer an independent investigation.  The Ombudsman Office and their complaint procedures on maladministration are, in my view, the best means for a person refused PUP to seek justice. The emails, word documents and administrative circulars available on the creation of PUP, evidence that the decision to exclude asylum seekers was taken on the following improper basis:

  • Attempting to take into account the means/needs of asylum seekers, but not other groups entitled to Pandemic Payment; and
  • Refused to consider the 2018 Reception Regulations which determine powers, and limits thereof, on Social Protection, relating to asylum seekers.

Finally, I would urge all those concerned to write to your TD and the Minister for Employment Affairs and Social Protection asking that the right thing be done, that asylum seekers who lost their jobs due to Covid-19 be paid Pandemic Unemployment Payment.

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.