Direct Provision: a home away from home?



LawSocietyIEIntroduction

The International Protection Act 2015 (the IPA 2015) introduced a new single procedure system to Ireland in line with the rest of Europe, with the intention of reducing the lengthy waiting times experienced by international protection applicants. Such applicants include both refugees and those seeking subsidiary protection, i.e. who do not quality as a refugee but face a real risk of suffering or serious harm if returned to their country. An asylum seeker is a person who makes a claim for protection from serious harm or persecution and seeks recognition as a refugee under the terms of the 1951 Convention relating to the Status of Refugees.

In Ireland, the system of support given to asylum seekers is known as Direct Provision and is administered through a variety of accommodation centres dispersed throughout the country.The Reception and Integration Agency (RIA) is a division of the Department of Justice and Equality tasked with meeting the material needs of asylum seekers by providing accommodation, food, a weekly allowance and certain additional services under the Direct Provision system.

Direct Provision has been in place since 2000 and owes its origins “to the public policy response to a major accommodation crisis that existed in the late 1990s / early 2000s”, as stated by Minister Frances Fitzgerald in response to a Parliamentary Question in September 2014. Direct Provision has no statutory basis and was developed through a series of ministerial circulars and administrative arrangements. However, as the High Court noted in a recent challenge on the legality of Direct Provision in C.A. and T.A. v the Minister for Justice and Equality IEHC 532, “he mere fact that ‘direct provision’ could have been placed on a legislative footing does not mean that this must happen.”

Overview of Direct Provision

Currently there are 32direct provision centres across 16 counties, only 7 of which are state owned. All are privately run but monitored by the RIA on an on-going basis. This is in contrast to many European countries, where not- for- profit organisations operate the accommodation centres.

The accommodation varies from hostels and convents to mobile homes and chalets with only 3 of the centres purpose built for the accommodation of asylum seekers. The majority of accommodations are units that are essentially bedrooms, with no separate private living space and a mixture of communal and private bathrooms as well as some self-contained units which are generally allocated to families. As of February 2017, there are over 4,500 residents in Direct Provision with over 90 nationalities present.

As the Irish Refugee Council have observed,the dominant feature of all the accommodation is that it was never intended to accommodate people for lengthy stays. Initially, when established, residents were not intended to stay for longer than six months. As of February 2015 however, RIA statistics provided to the Working Group to Government on the Protection and Direct Provision System,show that 43% of residents had lived in Direct Provision for more than 5 years, while the median duration of stay from the date of initial application for protection was 51 months.

In the recent case of A.O. -v- Refugee Appeals Tribunal & ors IECA 51, heard by the Court of Appeal, which concerned a wait of 10 years in the asylum system, it is of note that Mr Justice Gerard Hogan expressed hope that the International Protection Act 2015 would ensure that no further endemic delays would “blight the lives of those forced to wait indefinitely in our system of direct provision.”

Residents can make a complaint to the manager of the accommodation and to the RIA. Since3 April 2017,in light of the findings of Mac Eochaidh J. in C.A. and T.A.that residents are entitled to an independent complaints process,as well as a recommendation by the Working Group,the remit of the Ombudsman and the Ombudsman for Children have been extended to residents in Direct Provision. The Ombudsmen will offer an independent complaints mechanism relating to standards of accommodation, meals, cleaning and facilities. Residents will be able to make complaints once they have already raised an issue with the accommodation manager and RIA and are not satisfied with the outcome. Neither Ombudsman will have authority to examine decisions relating to any matters around asylum, citizenship and residency.

Rights and entitlements

A weekly allowance of €19.10 (unchanged since 2000) is provided for adults and €15.60 for children. Residents are not entitled to access social welfare payments and cannot access social housing or free third level education. Residents must all comply with a set of House Rules, some of which were found unlawful in C.A. and T.A. referenced above. Such rules found to be disproportionate and unlawful included the unannounced nature of room inspections, the requirement for residents to sign into their own home on a daily basis and the outright ban on residents having guests in private areas (bedrooms) of their homes.

Ireland is only one of two EU Member States (the other being Lithuania) which explicitly prohibits employment during the asylum procedure regardless of the amount of time spent in that procedure. International protection applicants do not have a right to work before a final determination of their application under Section 9 of the Refugee Act (as amended) and also due to Ireland’s decision not to opt into the Reception Conditions Directive 2003/9/EC and the Recast Reception Conditions Directive 2013/33/EU (the Recast Directive), both of which include a limited right to work within a certain time period. The Irish Human Rights and Equality Commission (IHREC) in their 2014 “Policy Statement on the System of Direct Provision in Ireland” recommended that Ireland should opt into the Recast Directive to ensure a minimum standard of provision for asylum seekers, including the right to seek work and access relevant social welfare payments after a period of 6-9 months.

Responding to a parliamentary question in March 2015, the Minister for Equality and Justice, Frances Fitzgerald indicated that the asylum and immigration system could be undermined if asylum seekers were given the same access to employment as immigrants who follow proper procedures.

The right to work for asylum seekers is currently being appealed to the Supreme Court by a Burmese applicant who has spent over eight years in the asylum system awaiting a final decision. The Court of Appeal in N.H.V. -v- Minister for Justice and Equality & ors IECA 86 found in agreement with the High Court N.H.V. & anor -v- Minister for Justice and Equality IEHC 246) that on account of the applicant’s status as an asylum seeker, he was unable to avail of the protection under Article 40.3.1. of the Irish Constitution to work or earn a livelihood in the State.

The Working Group established in October 2014 to report to Government on the existing protection process and to recommend improvements to Direct Provision made a number of recommendations in their Final Report to improve the conditions of those living in Direct Provision including access to employment after 9 months in the protection process. Notably, they remarked that the single procedure introduced with the IPA 2015 would have little benefit for a large number of existing residents in the system. To date, very few of the recommendations of the Working Group have been implemented.

International framework

A number of international treaty monitoring bodies have expressed concerns over the impact of Direct Provision on international protection applicants. The UN Committee on the Elimination of all Forms of Racial Discrimination in their Concluding Observations in 2011  found that Direct Provision has a negative impact on the welfare of applicants on account of the considerable delays in processing applications as well as poor living conditions which can result in health and psychological problems.

The UN Independent Expert on the Question of Human Rights and Extreme Poverty, Magdaleba Sepúlveda Carmona, in her 2011 report observed how the system of Direct Provision hinders family life and prevents asylum seekers from having autonomy over their own lives.

In their fourth report on Ireland in 2013, the European Commission Against Racism and Intolerance noted that residents of Direct Provision lack control over their lives, remarking that the centres pose a risk of “causing harm to the mental health of the residents” and observing that staff are not trained with the necessary intercultural skills.

There are heightened concerns around the impact on vulnerable people, particularly children and young adults. The Irish Refugee Council in their 2012 report on children in Direct Provision noted that children are growing up in “state-sanctioned poverty” with parents unable to care properly for them.

The Special Rapporteur on Child Protection, Geoffrey Shannon has noted in that regard that “significant child protection concerns exist” and that “ractice in Ireland is clearly questionable in terms of the dignity afforded to asylum seekers.”This involves situations where children are growing upin abnormal circumstances such as lone parents having to share a room with strangers and with little or no autonomy over how they can raise their children. Further, he has observed that Ireland may potentially be in breach of Article 8 of the European Convention on Human Rights as it would be unreasonable to claim that the interference to the right to family life is necessary and proportionate.

Conclusion

The Irish Refugee Council has consistently urged for a more humane approach, contending that the financial and human cost of Direct Provision is too high and fails to meet Ireland’s international obligations towards those seeking international protection. The experience for many asylum seekers is one filled with lengthy delays and little or no autonomy over their lives. While the country presently attempts to come to terms with the impact of Ireland’s long history of institutionalisation,a similar history appears to be emerging, albeit in a slightly different guise. As the Honourable Ms Justice Catherine McGuinness, retired Supreme Court judge, has previously predicted, asylum seekers may in the future receive a government apology for the damage done, particularly to the children of asylum seekers.

  • This article was written by Michelle Lynch from the Law Society of Ireland, and originally appeared in the June edition of the Law Society Gazette.