Last weekend we heard the tragic news that Czech national Josef Pavelka had been found dead in a laneway in Ennis town. At the time of writing, his cause of death is unconfirmed. Mr. Pavelka had been living in Ireland since 2007. He had come to Ireland to work in the construction industry, but as a result of the collapse of the building sector, and an injury sustained during the course of his job, he was unable to continue in employment. It is reported that Mr Pavelka also suffered from alcohol addiction. The culmination of all these challenges resulted in Mr Pavelka becoming homeless. While at first he was able to stay at an accommodation centre for homeless men in the Ennis area, he had to leave this centre because he was not in receipt of social welfare payments. It was at this point that Mr Pavelka was forced to live on the streets of Ennis, often accompanied by his friend Piotr Baram.

In April, Mr Pavelka appeared before Ennis District Court on public order intoxication charges. During the course of the hearing, it came to light that Mr Pavelka had been sleeping in the town’s public toilets. Judge Durcan, who heard the case, described the situation that Mr Pavelka was in as “a scandal”. Following newspaper reports of the judge’s comments, the story grew in profile as it was covered by Brian O’Connell of the Pat Kenny radio show on RTE Radio 1. Following the piece, there was an overwhelming public response, calling for alternative accommodation to be provided for Mr Pavelka and Mr Baram. It seemed that the situation of Mr Pavelka and Mr Baram captured the attention of the nation, not because they were homeless migrants, but that they had resorted to living in public toilets. This evoked a visceral reaction among the public. People were suddenly confronted with the reality of marginalised members of Irish society being forced to live in a place that most consider unclean and dangerous to health. As a result of the reaction, the men were eventually offered places in emergency temporary accommodation in a hostel in Galway. While Mr Pavelka remained in the Galway hostel for a period of time, he eventually returned to Ennis, where he sadly passed away last weekend.

While various references have been made to Mr Pavelka’s alcohol addiction and inability to maintain work, the fact is that Mr Pavelka would not have faced such a level of hardship had it not been for the Irish government’s Habitual Residency Condition (HRC). As a result of the interpretation of this provision, Mr Pavelka was denied access to social welfare payments because he was deemed to no longer have fulfilled the HRC. The case of Mr Pavelka is not an isolated incident and there are many others who find themselves in a similar situation as a result of this government policy.

The Habitual Residence Condition (HRC) was introduced with the Social Welfare Consolidation Act 2005. Section 141(9) of the Act states that: “A person shall not be entitled to jobseeker’s allowance under this section unless he or she is habitually resident in the State at the date of the making of the application for jobseeker’s allowance.” In theory at least, the HRC is meant to apply to Irish and non-Irish nationals equally. Section 246 of the Social Welfare Consolidation Act 2005 provides that: “…it shall be presumed, until the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless the person has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date.” However, s 246(4) of the Act states that when determining whether a person is habitually resident in the State, all the circumstances of the case should be taken into consideration including; the length and continuity of residence in the State or in any other particular country, the length and purpose of any absence from the State, the nature and pattern of the person’s employment, the person’s main centre of interest, and the future intentions of the person concerned as they appear from all the circumstances

The HRC is a complicated and non-transparent condition. Ultimately, it is the Deciding Officer (DO) or the Designated Person (DP) at the Department of Social Welfare who determines whether a person should be entitled to draw social welfare payments as a person considered to be habitually resident in the state. As the Department of Social Welfare guidelines on the issue set out: “The term “habitually resident” is not defined in Irish law, but it generally conveys a degree of permanence – meaning that a person has been here for some time, from a date in the past, and is intending to stay for a period into the foreseeable future. It implies a close association between the applicant and the country from which payment is claimed and relies heavily on fact.”

The complexity of the HRC means that in many cases, the criteria are being misinterpreted misapplied. The Immigration Blog, affiliated with prominent immigration law firm, Brophy’s solicitors, notes that there are a high percentage of negative decisions for non-Irish persons seeking social welfare assistance in the state. The Immigrant Council of Ireland also notes that migrant women have particular difficulty in satisfying the HRC because of the fact that their residency status is connected to that of their spouses. This is often despite the fact that they have lived in Ireland for many years and would seem in many respects to fulfil the required “connection” to the state which is emphasised in the legislation and the HRC guidelines. This places many migrant women who are victims of domestic violence at particular risk. Groups such as Pavee Point have also pointed out that the HRC disproportionately discriminates against Roma, who have moved as EU citizens to Ireland.

The overwhelming lack of clarity associated with the Irish immigration system has generally resulted in what the Irish Immigration Blog refers to as a system of “hidden remedies”, where access to certain payments or supports is granted on an entirely discretionary basis. While asylum seekers are described as being excluded from the HRC, and are therefore not usually permitted to access social welfare, there are a number of cases where the HRC is not applied. As described in this blog, their access to certain entitlements is however entirely dependent on the discretion of the relevant Community Welfare Officer. This treatment is part of an overall system of suppression and control of migrants and asylum seekers. By creating a “hidden” system where there are no clear rights entitlements, these groups are never truly able to protest or object to the denial of entitlements.

The HRC creates destitute migrants in Ireland. While it is true that Mr Pavelka suffered from alcohol addiction and other personal problems which made it difficult for him to secure work, it is also true that he was abandoned by the Irish state. Mr Pavelka was denied access to social welfare assistance because he was deemed to not be eligible under the existing social welfare entitlement rules. The application of the HRC system forced him to endure terrible living conditions which stripped him of his dignity, and denied him the opportunity to access any kind of shelter in Ennis town. The case of Mr Pavelka originally came to national attention because his situation was made a matter of record as he faced public order charges relating to intoxication in a public space. However, Mr Pavelka had nowhere else to go. There was no private space where his alcohol related problems could be hidden from the public gaze. So diminished was Mr Pavelka as a person in the eyes of the law, that his very existence became criminalised.

Now it is time for us to consider what our immigration and asylum system is doing to those who come to Ireland to seek an opportunity for a better life. The indignity that was suffered by Mr Pavelka was unfortunately not an isolated incident. There are many persons in a similar position who have been made destitute because they continue to be excluded from social welfare as a result of the HRC, or are subject to the degradation of the direct provision system. The fact is that this immigration and asylum system punishes the most vulnerable of those who come to Ireland. The layers of governance which drive our immigration and asylum system are so opaque and discretionary, that their administration is often beyond the comprehension of even the judiciary. As Judge Durcan remarked when told that Mr Pavelka was not entitled to social welfare support because of the HRC: “That is balderdash, that is all officialdom. I get so irritated when I hear that. . .” The persistent lack of clarity and unfairness in this system needs to be addressed immediately before we are faced with more unnecessary tragedy