The Direct Provision Report: A Missed Opportunity

DP ReportYou can find my preliminary analysis, including a full summary of the core recommendations from the McMahon Report on the Protection Process and Direct Provision System here. 

You can access the McMahon Report here.

From an initial reading and examination of this report, in my view, this is a report of two halves. One half of the report (Chapter 3 in particular) on the protection process and recommendations on the five-year grant of a form of residency status are clear and coherent. Clear recommendations are made as regards status determination and a substantial analysis of the rights of the child (along with other areas). That is not to say that the narrative of the McMahon Report in Chapter 3 is not without its issues (but I will leave this for another day). Throughout Chapter 4 and Chapter 5, highly qualified language and significant caveats infects the totality of recommendations on direct provision accommodation and ancillary supports.

Human Rights Obligations and Direct Provision Accommodation and Supports

From my initial reading of the report, there appears to be two unequivocal recommendations that may impact on those currently in direct provision, who are not resident in the centres for five years: an increase in direct provision allowance and the provision of a locker for each individual adult in direct provision accommodation centres. All other recommendations are subject to significant caveats as regards contractual obligations and implementation restricted in so far as reasonably practicable. For over 15 years, report after report has emphasised the significant violations of human rights that occur on a daily basis for those subject to direct provision accommodation and supports. The McMahon Report, while recommending an increase in direct provision allowance, does not recommend the payment of child benefit to those seeking protection in Ireland.

In my preliminary analysis (available here, pp. 19-26), I argue that the Working Group should have taken into account Ireland’s international obligations, in particular the UN Convention on the Rights of the Child. By not doing so, the McMahon Report entrenches the notion that asylum and protection seekers are less than human, deserving of only the most highly qualified rights in highly institutionalised settings.

Embedding Institutional Living in Direct Provision (see further, pp. 26-31, here)

The recommendations on living conditions and ancillary supports leave much to be desired. The solution to greater protection of protection seekers lies in neither in law nor in strategic litigation. While these are important in achieving broader aims and seeking to use law to promote human rights; only a fundamental re-evaluation of society’s approach to protection seekers in Ireland will result in the recognition of, what Arendt terms, “the right to have rights.” To date law and administration, and now the McMahon Report, will be used to justify exclusion, separation and distancing of protection seekers from Irish society and placing people in the direct provision system. Until there is more fundamental societal introspection, on “the rights of others”, institutionalised and impoverished living for protection seekers will continue. The significant controls over living conditions, eating arrangements’, near total supervision of the parental role, are relatively unchallenged by the McMahon Report. While there are some soft recommendations “in so far as practicable, and subject to any contractual obligations” as regards family living quarters, allocation of rooms to single applicants, possibility for individual or communal cooking, no other societal group has such enforced supervision of intimate aspects of daily lives. Public support for political action in limiting social rights of protection seekers have seen the most restrictive and punitive forms of control utilised within social welfare provision in the modern era.

The Direct Provision Report: A Missed Opportunity

The Direct Provision Report: Recommendations on Improving the Quality of Life for Protection Seekers

DP ReportYou can find my preliminary analysis of the McMahon Report on the Protection Process and Direct Provision System here.

You can access the McMahon Report here.

The Working Group have made a number of recommendations as regards improving the quality of life of those in the protection process. These recommendations include, improved financial supports, education and training, health care, further assistance to vulnerable protection seekers and supports to enable person’s transition out of direct provision accommodation.[1]

  1. Unqualified recommendations

Increase rate of direct provision allowance: The working group has recommended an increase in direct provision allowance (DPA) for adults and children. It is recommended that the adult rate to increase to €38.74 and child rate to €29.80 (qualifying child allowance under Supplementary Welfare Allowance).[2] There is an additional recommendation for the Department of Social Protection to reinstate Community Welfare Service officials in direct provision centres[3] and strive for consistency in administration of Emergency Needs Payments.[4]


  1. Qualified Recommendations

The Right to Work: Once the single procedure is “operating efficiently”,[5] provision for access to the labour market for a protection applicant, if the first instance protection decision is not provided within 9 months, and the applicant has been cooperating with status determination bodies.[6] The right to work should continue until the end of the protection determination process.[7] Where an applicant does succeed in entering employment, she should make a contribution to her accommodation and food within direct provision, if the right to work is provided and exercised.[8]

Access to Education: For school-going children, access to a homework club (on school grounds or in the direct provision centre) is necessary.[9] There are 60 students aged 15-18 who are currently in direct provision and will sit their leaving cert in 3-4 years time.[10] 100 young people obtained their leaving certificate in the last 5 years and live in DP centres.[11] 21 students sat the Leaving Certificate in 2014. 22 students were scheduled to sit their leaving cert in 2015.[12] For adults (new arrivals, the McMahon Report recommends access to English language education within one month.[13] For those 6 months + in the direct provision system, information on other potential courses open to them should be made available.[14] Universities and colleges should consider applying EU/EEA rates to those in the protection process or leave to remain stage for five years or more.[15] In courses above NFQ Level 4, those in the system for two years or more should be eligible to apply but subject to same conditions as others (i.e. if there is a requirement to be unemployed, and on the “live register”, this would apply to protection seekers).[16] The McMahon Report recognised that this does not impact in any way on those currently in the system.[17] No rationale is provided for the reason as to why it will not apply to current applicants.


Healthcare supports: The McMahon Report welcomed the HSE initiative to waive prescription charges, and calls for it to be implemented as soon as possible.[18] A number of health promotion initiatives and information leaflets on health services should be made available to protection seekers.[19]


Support for Vulnerable Protection Seekers, including LGBT Protection Seekers: Organisations providing services to protection applicants “should consider training staff in LGBT issues”.[20] The McMahon Report also recommends that representatives of Department of Social Protection should exercise discretion in administering Emergency Needs Payments to “support LGBT people in the system to access appropriate supports and services”.[21] The McMahon Report also recommends that information leaflets to highlight LGBT issues “displayed prominently”, along with RIA Safety Statement highlighting LGBT issues. [22]


Supports for Separated Children: All separated children over 16 should have an aftercare plan.[23] Currently, the HSE provide aftercare support to 82 separated children who have reached 18 years.[24] “As far as practicable and subject to their wishes”, separated children moving into direct provision should be accommodated in a direct provision centre near to residential placement or previous foster carers.[25] Training and other supports should be provided to foster carers to assist a young person’s transition to direct provision.[26] The McMahon Report also recommends that the Department of Children and Youth Affairs “should convene” a “stakeholder group” to consider “optimum supports” for separated children, including integration into Irish society.[27]

Linkages with Local Communities: The Government to “give consideration” to including protection applicants in integration strategy and to make funding available for local integration strategies. Consideration to be given to set up “Friends of the Centre” groups[28] and building community linkages. This also includes a suggestion to open up direct provision centres for an “Open Day”.[29]

  Continue reading “The Direct Provision Report: Recommendations on Improving the Quality of Life for Protection Seekers”

The Direct Provision Report: Recommendations on Improving the Quality of Life for Protection Seekers

The Direct Provision Report: Summary of Recommendations on Accommodation Standards

DP ReportYou can find my preliminary analysis of the McMahon Report on the Protection Process and Direct Provision System here.

You can access the McMahon Report here.

The Working Group has made a number of unqualified recommendations, qualified recommendations and requests for further reviews of different aspects of direct provision accommodation.

  1. The Unqualified Recommendations

These recommendations relate to a number of core areas, including:

  1. Multi-Disciplinary Assessment:[1] Multi-disciplinary assessment of needs of protection applicants within 30 days, and for this to be taken into account in the protection determination process, with follow up on an “on-going and regular basis”. Communication between different statutory agencies and others (RIA, legal advisors, health care providers etc.). Steps should be taken to encourage protection applicants avail of this assessment.
  2. Accommodation Provision:[2] All single residents sharing rooms and all family units should be provided with an individual locker for storage of personal items. This should be acted on without delay. All requests for tenders should specify adequate indoor and outdoor recreational space for children and young people, and consultations with resident children and young people “should be built into the specifications.”[3] All requests for tenders for centres for single people should specify the requirement for communal kitchens.[4] There should be consultation with residents on 28-day menu cycles.[5]
  3. Standards and Oversight: Extending the remit of Ombudsman and OCO to cover complaints relating to services provided to persons in direct provision and transfer decisions. Residents can contact either (or both) offices after internal mechanisms are exhausted (including an independent appeal).[6] RIA must appoint an officer to ensure complaints are dealt with. Complaint mechanisms must be open to all residents, including children and young people.[7] RIA must build confidence and trust in these complaints systems and that residents will not be adversely affected by making a complaint and “ensure centre management buy into the importance of ensuring an open culture that is conducive to residents making complaints.”[8] Contracts with providers should ensure managers have experience of working with refugees and protection applicants.[9] Centre Managers should have knowledge of basic mental health issues and health services, social welfare system, medical issues, a compassionate and empathetic style.[10]
  4. Transfers:[11] RIA should continue to provide detailed reasons for involuntary transfer. Recording of statistics in relation to voluntary and involuntary transfers.
  5. Child Protection: Access to cultural diversity training for social workers, with the identification of a named social worker by the Child and Family Agency and the Health Service Executive to contact in each direct provision centre.[12] RIA is to continue to have consideration of child safety when assigning residents to direct provision centres.[13
  6. Community Outreach: By the end of 2015, all direct provision centres should enter into partnership agreements with local leisure and sports clubs.[14]


  1. The Qualified Recommendations

These recommendations all relate to accommodation provision. All recommendations as regards greater respect for private and family life are significantly qualified. RIA informed the Working Group that it was not clear that all centres would be “structurally in a position to effect the proposed changes…”[15] It could take “upwards of” two years, from issue of tender to get new accommodation on stream that would meet the recommendations of the McMahon Report.[16] In any event, given the “market for self-contained units”,[17] some of the recommendations below may not be possible to implement.

Two core phrases come up time and again in the McMahon Report’s recommendations on direct provision accommodation: “in so far as practicable” and “subject to any contractual obligations”. All direct provision accommodation facilities are to be in line with a proposed “Standard Setting Committee” that will “reflect government policy across all areas of service in Direct Provision”.[18] The highly qualified recommendations include: Continue reading “The Direct Provision Report: Summary of Recommendations on Accommodation Standards”

The Direct Provision Report: Summary of Recommendations on Accommodation Standards

The Direct Provision Report: The "Five Year" Rule

DP ReportYou can find my preliminary analysis of the McMahon Report on the Protection Process and Direct Provision System here.

You can access the McMahon Report here.

The focus on speedy determination of asylum claims is nothing new. In the 2002 Programme for Government, the Fianna Fail and Progressive Democrat coalition stated (optimistically):

“We will ensure that new asylum applications are dealt with within six months and that other applications, which are currently outstanding, can be dealt with quickly.”

Similar promises (without time commitments) were made in the Fianna Fail and Green Party Programme for Government 2007-2012, and the Fine Gael and Labour Programme for Government 2011-2016. The McMahon Report provides substantial recommendations as regards numbers of decision makers needed to ensure meeting a 12 month period for disposal of protection and leave to remain claims once the single procedure is operating “efficiently”. In order to ensure the efficient operation of the single procedure, the Working Group has proposed that all individuals in the protection, leave to remain or deportation processes, for 5 years or more, should, in general, be granted either protection status or leave to remain within 6 months of this reports publication. The McMahon Report “discounted the possibility of an amnesty”. Instead, the McMahon Report recommends:[1]

“All persons awaiting decisions at the protection process and leave to remain stages who have been in the system for five years or more from the date of initial application should be granted leave to remain or protection status as soon as possible and within a maximum of six months from the implementation start date subject to the three conditions set out below for persons awaiting a leave to remain decision. It is recommended that an implementation start and end date be set by the authorities as soon as possible.”

  Continue reading “The Direct Provision Report: The "Five Year" Rule”

The Direct Provision Report: The "Five Year" Rule

The Direct Provision Report: The People Impacted

DP ReportYou can find my preliminary analysis of the McMahon Report on the Protection Process and Direct Provision System here.

You can access the McMahon Report here.

The McMahon Report is one of the first attempts by the State to systematically explore the total numbers of persons who are in the protection process and leave to remain process, including those who have unsuccessfully sought protection and leave to remain and who are now subject to a subsisting deportation order. Such figures had not been available as a matter of course, meant that there were significant unknowns as regards numbers within the protection process (and related migration areas such as leave to remain and those subject to deportation orders).

Some of the headline statistics emerging from the McMahon Report include:

  • As of February 2015, the McMahon Report identified 7,937 persons who are in the protection process (49%), the leave to remain process (42%) and persons whose claim for protection and leave to remain was not granted, and who are subject to a deportation order (9%).
  • There are 3,876 persons within the protection process. 1,189 persons have been in the protection determination system for 5 years or more.
  • There are 3,343 in the leave to remain process; 2,530 persons have been in the leave to remain process for 5 years or more.
  • There are 718 persons subject to a deportation order. 628 persons have an outstanding deportation order for 5 years or more.


Of this 7,937 persons in the system, 3,607 (46%) live in direct provision accommodation. 4, 330 (54%) of persons live outside direct provision. As the McMahon Report notes: Continue reading “The Direct Provision Report: The People Impacted”

The Direct Provision Report: The People Impacted

The Direct Provision Report: An Overview and Introduction

DP ReportYou can find my preliminary analysis of the McMahon Report on the Protection Process and Direct Provision System here.

You can access the McMahon Report here.

The Working Group Report on the Protection System and Direct Provision (McMahon Report) report was released on June 30 2015. The McMahon Report provides a significant number of recommendations on the protection process in Ireland and the system of direct provision.[1] That changes would be occurring to the protection process and the system of direct provision were hinted at in July 2014. The Statement of Government Priorities 2014-2016 outlined the need to

“address the current system of direct provision…to make it more respectful of the applicant and less costly to the tax-payer”.[2]

There was also a commitment to establish a single procedure for asylum applicants. The publication of the Heads of the International Protection Bill in March 2015 (before the Working Group reported) has indicated Government willingness to move the single procedure forward. However, the Working Group seems overly ambitious in estimating that the single procedure will be in place and operational by 01 January 2016.[3]

After consultation with Non Governmental Organisations (NGOs) in September 2014,[4] the terms of reference and membership of the Working Group was announced on 13 October 2014.[5] The terms of reference of the Working Group were:


“Having regard to the rights accorded to refugees under the 1951 Geneva Convention Relating to the Status of Refugees and bearing in mind the Government’s commitment to legislate to reduce the waiting period for protection applicants through the introduction of a single application procedure,

to recommend to the Government what improvements should be made to the State’s existing Direct Provision and protection process and to the various supports provided for protection applicants; and specifically to indicate what actions could be taken in the short and longer term which are directed towards:

(i) improving existing arrangements in the processing of protection applications;

(ii) showing greater respect for the dignity of persons in the system and improving their quality of life by enhancing the support and services currently available;

ensuring at the same time that, in light of recognised budgetary realities, the overall cost of the protection system to the taxpayer is reduced or remains within or close to current levels and that the existing border controls and immigration procedures are not compromised.”


The Working Group commenced work on its report on 10 November 2014.[6] The McMahon Report emerged over eight plenary meetings, with the sub-groups identified below meeting on 38 separate occasions.[7] The limitations on the terms of reference were accepted by NGO representatives at the first meeting. The McMahon Report notes that:

“organisations advocating an end to direct provision, and who may be disappointed in this limitation, had accepted their appointment on the basis of the terms of reference”.[8]

The core issue identified by the Working Group was “length of time” in the protection process and length of time protection applicants were subject to the system of direct provision.[9] An Agreed Work Programme was set out, with members decided which sub-group they would be part of (and could be part of all sub-groups if they so wished):[10]

  • Theme 1: Improvements within direct provision;
  • Theme 2: Improvements to ancillary supports for those in direct provision
  • Theme 3: Improvements in the determination process for protection applicants.

Overall, the Report contains a mix of significant recommendations on the protection process and processing of asylum claims.[11] However, I argue, there are significant concerns with the recommendations that have emerged as regards direct provision accommodation and supports for asylum applicants.[12]

Pic Credit: Merrion Street

[1] For a glossary of core terms that will be used as regards immigration status in this analysis, see Thornton, L. Glossary of Terms: Irish Asylum Law (UCD, 2013).

[2] Department of An Taoiseach, Statement of Government Priorities 2014-2016 (July 2014), p. 9.

[3] Working Group report to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers (hereinafter the McMahon Report), paras 66, 6.17, 6.31, 6.39 and 6.46.

[4] 18 September 2014: Consultation with NGOs as regards terms of reference for the Working Group and other aspects of the protection process.

[5] Department of Justice and Equality, Terms of Reference and membership of the Working Group (October 2013).

[6] Working Group report to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers (hereinafter the McMahon Report), para. 6.

[7] McMahon Report, para. 20.

[8] McMahon Report, para. 8.

[9] McMahon Report, para. 3 and Appendix 6.

[10] McMahon Report, para. 4 and Appendix 1.

[11] See generally, Chapter 3 of the McMahon Report.

[12] See generally, Chapter 4 and Chapter 5 of the McMahon Report.

The Direct Provision Report: An Overview and Introduction

Mohammed Younis Succeeds in the Supreme Court

Younis PicIn August 2012, the Irish High Court ruled that as Mohammad Younis was in an irregular migration situation, he could not benefit from protections under employment law (see also Dr Darius Whelan‘s excellent analysis of the High Court decision here). Today (25 June 2015), the Supreme Court set aside the decision of the High Court. The decision was set aside, not on any explicit repudiation of the High Court’s analysis of employment law, employment contracts and irregular migrant workers, but on the basis of strict adherence to the role of a court in judicial review proceedings. Rather than focus on the human rights arguments pleaded before it, the Supreme Court simply considered the jurisdiction of the High Court to make its August 2012 decision. The Rights Commissioner made two monetary awards to to Mr. Younis in March 2011.

For breaches by Mr Hussein (Mr Younis’ employer) of the Organisation of Working Time Act 1997, the Rights Commissioner awarded the sum of €5,000 to Mr. Younis. For breaches of minimum wage legislation over a number of years, Mr. Younis was awarded €86,134.42. As Mr Hussein did not appeal this decision, but did not pay Mr. Younis compensation. the Labour Court issued two determinations that these sums be paid in September 2011.

In setting aside the decision of the High Court, Murray J. in the Supreme Court noted: Continue reading “Mohammed Younis Succeeds in the Supreme Court”

Mohammed Younis Succeeds in the Supreme Court

#UNIRL Concluding Observations for Ireland on Economic, Social and Cultural Rights

UN imageOn June 22, the Committee on Economic, Social and Cultural Rights issued their concluding observations on Ireland’s compliance with obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR). You can access the concluding observations of the Committee here. Ireland’s next report under ICESCR will not be considered until 2020 at the earliest.

Positive Aspects (paras. 3-5)

The Committee commended Ireland in a number of respects, relating to accession to a variety of international instruments and recent developments in terms of marriage equality, establishing the Irish Human Rights and Equality Commission and various strategies on poverty prevention, social inclusion and mental health.

Principle Subjects of Concern (paras  6 -38)

The Committee has expressed concerns surrounding the following:

  • Non domestic applicability of ICESCR (para.  7);
  • The State should recognise Travellers as an ethnic minority (para. 32);
  • Recommends that the Legal Aid Scheme in Ireland be widened and additional resources be provided to the Legal Aid Board (para. 8);
  • The State should engage  more widely with civil society organisations when adopting changes in legislation, policy etc. (para. 10)
  • The State should conduct a review of the measures adopted during the period of austerity, plan for the phasing out of these measures; review its taxation and spending policies and consider instituting a human rights impact assessment of its policies (para. 12)
  • Alternatives to institutionalised care for persons with disabilities must be considered by Ireland (para. 13);
  • In terms of asylum seekers: the Government should expediate the International Protection Bill, and also improve the poor living conditions for persons in direct provision and overall Ireland has to take steps to improve reception conditions for asylum seekers (para. 13);
  • Ireland should amend Article 41.2 of the Constitution (para. 15).
  • The Committee is concerned at high unemployment, in particular amongst vulnerable groups. The State should introduce targeted measures to combat this, in particular for Travellers, Roma and persons with disabilities (para. 16).
  • The minimum wage is too low and does not ensure a sufficient standard of living for a worker and their families  and consider legislation to ensure just and favourable conditions of work in a number of areas (para. 17);
  • There should be “a prompt, thorough and independent investigation” into forced labour in the Magdelene Laundries (para. 18).
  • Initial social welfare decisions need to be made in a fair and transparent manner, and is concerned that the habitual residence condition disproportionately impacts on already marginalised groups (paras. 20-21).
  • The State needs to increase its efforts as regards poverty prevention, hunger and malnutrition, in particular amongst marginalised groups in society (paras. 24-25).
  • The State needs to give consideration to ensure adequate housing, including protecting those in mortgage arrears, those at risk of homelessness, increasing rent supplement, effective complaints mechanisms for local authority tenants, and providing Travellers and Roma with culturally appropriate accommodation (para. 26).
  • Healthcare services and mental health services need to be delivered in a rights compliant manner (paras 27-28). The Committee recommends that Ireland take  “all necessary steps, including a referendum on abortion, to revise its legislation on abortion” (para. 29).
  • The Committee is concerned at the permissibility of discrimination as regards school admissions for a number of groups and recommends that admissions criteria adopt a human rights framework (para. 30).

#UNIRL Concluding Observations for Ireland on Economic, Social and Cultural Rights

#UNIRL Update No. 6: Minister Sherlock & Irish Delegation Respond to ICESCR Committee

UN imageThis is a summary of the response of Minister Sherlock and the Irish Delegation to the Committee on Economic, Social and Cultural Rights. [Finalised. Where the Government did not respond directly to a question, this is to be provided for in a written answer post the meeting and within 48 hours. Concluding Observations to be issued within 10 days.]

General response: Minister Sherlock

Between 2007 and 2015, our expenditure on social protection increased in % terms by 33%. That is how Ireland responded to issues of austerity. In terms of the lessons learned, may discuss this later.

Minister Sherlock also discussed overseas aid. It will be challenging for Ireland to reach the 0.7% target.

Health, education and social welfare spending were “as best protected” as possible during the recession. The social welfare budget was increased by €4 billion during the recession. The number of teachers increased throughout the period of the recession. Ireland sought to ensure that dilapidated and pre-fabricated school buildings were replaced by bricks and mortar. Every child, no matter their background or religion, “as citizens would be taught in classrooms that would be conducive of learning”.

The Constitution is a living document. The State guarantees not to endow any religion. Article 44 of the Constitution is interpreted harmoniously as regards equality of treatment. The Irish Supreme Court has consistently said that all persons are guaranteed freedom of conscience and religion, to all persons, and to those of no religious persuasion.

In spite of the difficult decisions, Ireland has done its level best to ensure we’ve lived up to the spirit of ICESCR. We will endeavour to ensure all our citizens to flourish. Government policy is now conducted in a much more collaborative way. Ireland is more collaborative as regards governance and ensure we are “compliant with and adherent with” our international obligations. Ireland will continue to progressively realise economic, social and cultural rights. Minister thanks the Committee on Economic, Social and Cultural Rights.

Colin Wrafter (Director of Department of Foreign Affairs, Human Rights Unit)

Ireland has not yet ratified the optional protocol (but have signed this document). Ratification will only be done after screening of obligations and appropriate government consultation. This is to ensure that State can comply with obligations once ratified.

The Constitutional Convention was an “innovative” method of assessing constitutional issues. The Government held referendums on marriage equality and age of Presidential candidates. The Convention recommended the insertion of ICESCR rights, and these rights are cognisable by the Courts. The Government’s response to this recommendation will be given shortly.

Geraldine Luddy (Department of Health) (Abortion Matters)

Acknowledged that the law in Ireland on abortion is very limited. The 8th amendment was inserted in 1983. Abortion is prohibited unless a woman’s life is at risk, and that risk can be averted by termination of her pregnancy. Once the clinical decision is made, that a woman has a right to abortion, she is then entitled to that termination. In this particular case, the right to life of the woman takes precedence. In terms of rape, incest, fatal foetal abnormalities, a further referendum will be required.

Ireland has free services as regards post-abortion counselling. Migrant women, and in particular women “in our asylum centres”, the Crisis Pregnancy Programme have drafted guidelines to ensure that women are “aware of their rights in relation to the termination of their pregnancy”. Proper referral pathways are also been considered by medical practitioners.

Paula O’Hare (AG’s Office-Justiciability and Incorporation of ICESCR)

Recognises that the Committee contains a significant number of (former) Supreme Court judges. As regards why we would incorporate ECHR and not ICESCR?: Ireland is not distinguishing between civil and political rights, and economic, social and cultural rights. However, we cannot assess the resource implications of providing justiciable economic, social and cultural rights.

The context of ICESCR is mainly incorporated through legislation (i.e. social welfare acts, housing acts, health acts). These laws are completely justiciable before the Irish courts. People can challenge non payment of a benefit within structures and systems. Nothing about this is barred from the courts on the basis that the content of the right giving rise to litigation is an economic, social and cultural rights. Procedural fairness as regards welfare (etc.) and other decisions are also justiciable (fair process, taking into account rational considerations, duty to give reasons for decisions). The Irish courts deal with these issues.

Irish judges are appointed and have minimum standards of practice. Everything mentioned above, judges are trained and expert in these issues. Judges undertake to do further training as presidents of their courts request them to do. This is for judges to decide. There is no judicial resistance to hearing of economic, social and cultural rights. There is deference by the judiciary as regards the role of the Executive and Legislature in matters of economic, social and cultural rights.

There is no judicial resistance to hearing of economic, social and cultural rights. There is deference by the judiciary as regards the role of the Executive and Legislature in matters of economic, social and cultural rights. In the last Supreme Court decision on housing (ed. note, case of O’Donnell) the Supreme Court did not make reference to ICESCR. However, the Supreme Court did note constitutional concepts of human dignity.

The Law Reform Commission is examining (as part of their work programme in 2015) the extent to which Irish government departments comply with international human rights obligations.

Response of ICESCR Committee Chair: While the Covenant provides for progressive realisation, it also imposes on State parties various obligations that are of immediate effect. Please keep this in mind. Certain rights under ICESCR are of immediate effect, and the party must take immediate steps to realise these rights (under General Comment No 3 & 9). 

On Tuesday, 9 June, Paula O’Hare responded to the Chairperson’s question responding to General Comments No 3 and No. 9. There must be access to redress for discrimination, that is not subject to progressive realization. There is explicit statutory protection under the Employment Equality Act & Equal Status Act that complies with our obligations under ICESCR. If the Committee disagree with this, then reference can be made to Article 40.1 of the Constitution, an article that “all Irish people are proud of….this has governed the country well since its enactment…other articles of the Constitution must be governed by this duty..” All of this is without prejudice to the fact, the Constitutional Convention has recommended greater inclusion of ICESCR, and this is still a live question that the Government has yet to consider.

National Minimum Wage

Minimum wage is high by international standards. The Low Pay Commission will be in operation. No plans to reduce exemptions to minimum wage, close relatives/apprentices. Family relationships reflect family  and cultural practices.

Deaglán Ó Briain, Department of Justice (Racism, Disability, Legal Aid, Magdelene Laundries, Direct Provision, Gender)

National Action Plan on Racism up to 2008 is still being implemented. Racism is a problem that the Irish government and police force takes seriously.

Ireland is not necessarily in favour of an over-arching human rights plan. Would this plan “add value”?

In terms of particular vulnerable groups (travellers, Roma, persons with disabilities), the Government are introducing inclusion plans. This is been passed in an open way. The case of two Roma children, wrongly taken from their parents, the Irish government is planning to ensure that this cannot take place again.

In terms of the legal aid scheme, legal aid will only be granted to the Refugee Appeals Tribunal. However, legal advice can be provided to persons as regards the social welfare appeals office. The purpose of not granting legal aid before various tribunals (social welfare, employment etc.) is that they are more informal and not necessary to seek legal advice and aid.

Ireland has a robust equality infrastructure, and there are no plans to widen the grounds for prohibited discrimination under the Employment Equality Act or the Equal Status Act.

As regards the Magdelene Laundries, finance has been provided to persons in these laundries, regardless of whether any abuse took place. The payments have not come to a stop. A substantial amount of money has been expended on this redress scheme. The “group working with the largest number of survivors” are not interested in bureaucratic processes, or further inquiries. The Government have but forward “a generous, eh, a humane” scheme as regards Magdelene survivors [My note: Direct Quote of misspoken official!].

A working group has been set up under a “High Court judge” as regards direct provision. Direct provision was never intended to be a solution and we recognise issues. The report of the Working Group, “we understand”, will have recommendations on a right to work, right for asylum seekers to prepare their own food etc.

Tuesday, 09 June 2015

There is an increased gender pay gap between 2011 and 2012 on the provisional figures available to the Dept of Justice. Within the private sector, the gap has remained unchanged at 20%. The gap continued to decrease in a number of areas: defence, social work, administration. There is a 29% gender pay gap in the education sector, and the State is currently considering this issue.

The  Tainaiste has stated that she will consider introducing two weeks paid paternity leave in the forthcoming budget.

Mr O Briain provided the Committee with figures on domestic violence prosecution statistics, as well as orders under the Domestic Violence Act 1996. Ireland is committed to publishing new legislation on domestic violence by the end of the year. The State is also seeking to ratify the Istanbul Convention on Domestic Violence in the near future.

The State has achieved its targets for public sector employment of persons with disabilities. In the private sector, a different approach is needed, as regards support and facilitation of private sector employers to ensure they can employ persons with disabilities. Ireland will not ratify the UN Convention on Persons with Disabilities until the State is sure that it can comply with its obligations. This issue is not a resource issue. The real issue is legislative issues, currently being addressed as regards mental health legislation and disability rights legislation, getting rid of outmoded language from our electoral laws. The objective is to bring a road map to government with time-scales to completing ratification of UNCRPD.

In terms of asylum seekers right to work and cultural life. “I have no doubt” the right to work will be dealt with in the forthcoming report on the direct provision. Sporting and other organisations have been involved in ensuring access of minorities to cultural life.

In terms of Traveller ethnicity, this issue is being addressed and explored by the Minister for State for Equality. Travellers self identify as Irish, but a distinct culture and identity and hugely important that in terms of self-esteem for Travellers. Ireland needs to engage in process of examination to see what issues remain to possible recognition.

Antoinette Connolly (Department of Finance?)

Economy is recovering and revenue is increasing. The Irish economy is still not back to where we were. Our fiscal policies are still aimed at reducing our deficit. In Budget 2015, the Irish government began to increase expenditure. There has been some modest increase in budgets. There were also a number of “tax measures” to provide “tax reliefs” valued at €500 million. There could be up to €1.5 billion in “fiscal space” to provide increase in government expenditure and also tax adjustments. Ireland still needs to reduce our deficit, but in the period to 2020, there will be scope for fiscal adjustments and expenditure increases. As of now, it’s too early to determine what these expenditure adjustments will be.

Departmental Representative (apologies didn’t catch a name) (Housing)

In terms of social housing, Ireland “responded to social housing need in the crisis”. There is a recent social housing strategy presents a fundamental effort to deal with the housing list. There will be 35,000 new housing units to be delivered. Other reforms in areas of social housing, with €1.5 billion of housing targets. “State is responding to housing need in Ireland”.

The Private Residential Tenancies Act 2004 provides for secured tenure for four years-Part 4 tenancy rights (once initial 6 month period finished). The Private Residential Tenancies Board “have initiated”  an “extensive” advertising campaign informing landlord and tenants of their rights and obligations. While rents have been rising in Ireland, the core response of Government is to enhance supply. Issues of rent certainty is under consideration. The core focus of the government is to ensure that the rent benefits of landlords, tenants and all others in society.

Jim Wells (Social Protection)

In terms of the lessons for Ireland:

How have we dealt with austerity and the economic crisis?

The crisis was one of unemployment. The social welfare system acted as an “automatic stabiliser” in preventing poverty and growing economic inequality. Ireland had invested heavily in social protection prior to the crisis, with an emphasis on providing an adequate standard of living. The spending on social protection doubled between 2000 and 2007. This created a “robust, comprehensive” welfare system. Between 2007 and 2015, social protection system increased by 1/3, “that’s the bottom line, we spent more money”. The number of recipients increased and the system responded to this. A quarter of the Irish population was lifted out of poverty due to social protection, social transfers. Ireland was 2.5 times more effective in preventing poverty than Portugal, Italy and Greece. This data highlights the crucial role of social protection in preventing poverty. The Irish social protection system is one of the best in Europe and this is a key lesson from the recession.

Ireland had to make trimmings to a number of expenditures due to the “discretionary measures that Ireland were forced to take…” Social Impact Assessments are utilised throughout budgetary decision making processes. The 2014 Social Impact Assessment of Budget 2014: there was a 0.8% reduction in living standards. Only 1/4 of the loses were from welfare cuts. The remainder of the reduction was due to property tax, which had “regressive effects on lower income households”. However, in 2015, the negative impact of 2014, was almost wiped out with a 0.7% increase in living standards. This was in the year of water charges. “Water charges, by their nature are a regressive measure”. It is expected that Budget 2016 will have a similar increase in living standards. The Government spoke to the Community and Voluntary Sector about these issues.

At the end of the crisis, there has been slight increases between 2009 and 2015 of core social welfare payments. Measures were adopted “protected the most vulnerable”.

At the heart of our economic crisis, our unemployment rate went from 4% to 15%. Since then, major progress has been made, with unemployment is below 10% “with further falls expected”. In terms of long-term unemployment, there has been a larger fall in numbers in long-term unemployment. This was due to the government’s creating signifiant employment pathways to work. The Government has created a range of active labour activation measures. The rate of in-work poverty is 5%, and has fallen during the crisis. Significant social supports have been put in place (child care, social transfers, back to work payments) to enable persons realise their right to work.

Ireland has a long history of setting and meeting poverty targets in terms of adults and children, and their are positive signs that jobs are being created. Ireland has dynamic targets on poverty prevention.

Colm Desmond (Health Questions)

Disability services are governed by the value for money report. There is now a new model of support for persons with disabilities and has been a decrease in the number of persons with disabilities in congregated settings. This is subject to ensuring a person can be properly supported in the community. The reforms in the Congregated Settings Report are currently being implemented. Services for disabilities can be inspected by HIQA since 01 November 2013. The voluntary service providers in congregated settings must have their personal dignity and privacy met under agreements with these providers. HIQA inspects on rotation, and HIQA has reported many elements of good practice. The HSE must adopt action plans for a number of centres where concerns about health and human rights of residents were in question. The Aras Attracta centre was inspected by HIQA and passed muster. However, after the Prime Time report, a HSE 6 step programme was put in place to safeguard vulnerable persons at risk of abuse. The outcome of Aras Attracta, regrettable as it was, will ensure that disability standards will be implemented in full. Due to ongoing inquiries, State does not want to say anything further.

The Disability Value for Money Report was “widely welcomed by the disability sector”

The State’s mental health services are “progressively moving” towards a community care model. The Government are also seeking to look at other important mental health issues: eating disorders etc. The Government has provided “very substantial funding” for mental health. The government’s system of mental health gets “quite a bit of support” from mental health advocates.

On the question of free and informed consent of mental health treatments, will be moving away from a paternalistic view of mental health treatment. Therefore, a stronger voice for the individual is anticipated. There will be safeguards to involuntary patients as regards those who are detained voluntary. There will be changes as regards considering status of different patients. The Assisted Decision Making Capacity legislation is also progressing to provide changes.

Drugs and medicines are made available through the medical card scheme, or through the Drugs Payment Scheme. The question (posed yesterday) was where an individual needs an expensive drug, which the State is not in a position to cover the cost. The HSE is in a position to negotiate with pharmaceutical companies to make particular, if rare, treatments available. State needs to be mindful of best use of funding.

Female Genital Mutiliation is an issue that the State “does need to address”. A special clinic has been established in Dublin to deal with these issues. There is an estimate of about 3,700 persons who are victims of FGM. The State’s dealing with FGM is “as good as is possible in the circumstances”.

It is acknowledged that Travellers health outcomes are not the same as many within Irish society. The HSE has adopted strategies and plans to deal with Traveller health outcomes.

On health services reform generally, the Universal Health Insurance policy is governmental policy. The most immediate manifestation to this, is to extend free GP treatment and medical cards to all children under 5, followed by extension to all persons over 70. The Government has already increased the coverage of medical cards “very substantially” in a time of economic recession.


Tulsa (Child and Family Agency) have a statutory duty to ensure proper education. The number of children who were home educated was just over 1,000 children. A register of such children is maintained.

Government is aware of patronage and pluralism in primary education and the need to provide greater diversity. In relation to new schools, between 2011 and 2016; – 20 schools established are muti- denominational. In areas of stabilised population, a process of divesting, in terms of surveying parents. There have been 8 schools divested to date.

Traveller education is now mainstreamed.

#UNIRL Update No. 6: Minister Sherlock & Irish Delegation Respond to ICESCR Committee

#UNIRL Update No. 5: The Committee Questions Minister Sherlock

UN imageThis is my attempted structuring of the core questions asked of Minister Sherlock and the Irish delegation by the UN Committee on Economic, Social and Cultural Rights. The questions are coming quick and fast, and I do hope I’m fairly reflecting the complexity of the questions asked. [Ended, see responses of State delegation here]



Incorporation and Justiciability of Economic, Social and Cultural Rights

  1. Why doesn’t Ireland incorporate economic, social and cultural rights in the constitution?
  2. There is a recommendation from the Constitutional Convention, as regards protecting socio-economic and cultural rights? What is the current status on progressing this issue?
  3. Will Ireland allow its citizens to bring complaints before the UN Committee on Economic, Social and Cultural Rights?
  4. Given that Ireland has incorporated the European Convention on Human Rights in domestic law (ECHR Act 2003), why can’t the Irish government incorporate ICESCR in a similar manner?
  5. Article 45 of the Irish Constitution: Does the State value ALL human rights, including socio-economic rights?


  1. Is the government going to renew the national action plan on racism? What measures has the Government taken that IHREC is adequately resourced?
  2. What measures is the government taken to ensure that the principles of non-retrogression, minimum core obligations, non-discrimination etc. are considered and respected by State, in particular as regards asylum seekers, Roma, Travellers, women, persons living in poverty?
  3. Asylum seekers and direct provision are waiting in accommodation for 5-7 years. There is a negative impact on family life. “We are concerned that direct provision violates family life, the right to work, the right to social assistance”
  4. The National Women’s Strategy is about to end, what needs to be improved further as regards women’s rights?
  5. Does Ireland have any plans to prohibit discrimination on further grounds (i.e. socio-economic status)?
  6. Does Ireland protect non-citizens rights to their economic, social and cultural rights?
  7. Ireland seems unique as regards the lack of separation of church & state in a developed State?


  1. In terms of gender, how are the socio-economic rights  of women fully respected and protected in Ireland.
  2. What issues/problems emerge as regards the scheme for Magdalene Laundries redress and are socio-economic rights now being respected?
  3. How does the State ensure child care is offered?
  4. What issues with domestic violence arise and what supports are in place as regards victims of domestic violence?
  5. How can you reconcile the contradiction between Ireland’s preferred status to the unborn (in the Constitution), compared to the rights of women, when a woman’s health is under threat?
  6. How is Ireland’s abortion regime compatible with the right to sexual and reproductive health? In particular as regards victims of rape, and where a foetus is non-viable outside the womb?
  7. Why doesn’t the Government hold a referendum on an issue of abortion?
  8. What steps have been taken by Government to ensure that the 2014 Information Document, ensure that women can access their right to life-saving abortion?
  9. Thousands of women have to access abortion services and this has a disproportionate impact on poor women, female asylum seekers, and other women who do not have the resources or ability to travel abroad for reproductive services. What is the State’s response to this?
  10. In terms of domestic violence in Ireland’s obligation-there are gaps. Ireland has made a commitment to review this legislation and to introduce the Domestic Violence Bill 2015. Any update on this?
  11. There has been significant cuts as regards domestic violence support services. Why is this the case?

Structural Issues

  1. In terms of Budgeting: Are there gender sensitive budgeting analysis and exploration on the impact of women, in particular marginalised women?
  2. What training has been provided to the judiciary as regards economic, social and cultural rights?
  3. Will Ireland collect disaggregate data to assess the socio-economic rights of Travellers and Roma in Ireland
  4. Does Ireland have effective mechanisms to ensure equal enjoyment of rights for Travellers and Roma?
  5. What State mechanisms are in place to ensure implementation of UN human rights treaty bodies recommendations and address concerns as regards meeting UN human rights treaty obligations.

Austerity, Equality and Human Rights

  1. Are Ireland’s austerity measures temporary?
  2. What lessons can Ireland (and all of us) learn from its approach to austerity?
  3. Is it the view of Ireland that Memorandum of Understanding were “imposed” on Ireland, and this was essentially coercion?
  4. As regards the burden of the sovereign debt crisis: in public statements from Cabinet ministers, corporate tax rate is “settled policy”. Would Ireland agree that failure to moving towards a common EU corporate tax rate, is impacting on the enjoyment of socio-economic rights.
  5. 2/3 of budget adjustments arose from cuts in spending. In retrospect, is it the view of Ireland that this was appropriate in light of Ireland’s obligations under ICESCR?
  6. Many countries are going through austerity. But there are certain areas that must be untouchable-education and health-these areas need to be protected. How has the State protected these areas from austerity?

Legal Aid and Access to Justice 

  1. Will the legal aid scheme be strengthened, as regards employment, social welfare appeals, housing and eviction?
  2. Why are certain areas excluded from legal aid i.e. if persons are evicted and how the legal aid system deals with this issue.

Social Security & Adequate Standard of Living (including Housing)

  1. Recent Eurostat data, the % of social benefits that are means tested in Ireland is quite high (EU av. 11.1%). What measures are taken to ensure that people are not under included within the right to social security?
  2. Ireland has “done considerably good things” in maintaining core social welfare rates. But standard of living of children, people with disabilities, migrant workers, single parent families etc. has fallen significantly. If poverty is to be eliminated by 2016 (Government target), please estimate the implementation of this?
  3. How does habitual residence condition cause difficulty for those within the welfare system? In particular victims of domestic violence?
  4. Lone female parents suffer significantly from poverty (35.5%), what update will the State give us on figures post 2009?
  5. Why is the first instance decision making process as regards social welfare entitlements so poor? Why is there such a high level of success on appeal to the Social Welfare Appeals Office?
  6. What measures have been taken to assist tenants from the increase in rents to ensure that these persons are not evicted?
  7. Why has the Government kept rent allowance/supplement at 2013 levels. 450 families (including 1000 children) have entered homeless services support in the last number of months.
  8. How is Government planning to increase the level of social housing. The statistics show that the Government are not ensuring adequate supply (raised in concluding observations in 2002)?
  9. As regards the Mortgage Arrears Crisis: Why has this been amended to the benefit of the bank? Will the Government provide a commitment to provide borrowers with an independent mechanism to appeal decisions?
  10. What actions are the State taken as regards the complaint to the European Committee on Social Rights (see here) in terms of the horrific housing conditions that some local authority tenants are being subjected to?

Mental & Physical Health

  1. Some concerns as regards congregated mental/physical health settings and to move to community settings for persons with intellectual disabilities, with other physical needs.
  2. The Committee is concerned at mental health of asylum seekers due to the system of direct provision. Please comment on this issue.
  3. As regards children under 18, what measures of persons with intellectual disabilities are not cared for in adult settings?
  4. To what extent does the Irish medical card system ensure access to innovative (but expensive) treatments for life-saving medical treatment?
  5. Ireland has a two-tier health service: How do the public health facilities deal with public/private patients, in particular as regards waiting times and differences for public and private patients?


  1. What is quantity of jobseekers who have been impacted by “activation measures”?
  2. What has the State done to protect employees on low or zero hour contracts?
  3. Is the minimum wage of €8.65 possible to ensure an adequate standard of living, and what percentage of the work force are subject to the minimum wage?
  4. What steps are being taken to allow asylum seekers in direct provision to access their right to work?
  5. What is the government doing to combat the gender pay gap and higher rate of female unemployment in Ireland?


  1. Why does Ireland permit discrimination on the basis of religion as regards access to educational establishments?
  2. Will the new School Admissions Bill  remove religious discrimination?
  3. Austerity measures have had a negative impact, meaning fewer teachers and support services. Could you please comment on this? Austerity measures impacted particularly on low income areas, in particular as regards Traveller children. Why is this the case?
  4. Issue of education seems to be a sensitive issue. The issue of religion and the education system. People with disabilities, Travellers, migrants, children of non-religious parents. What measures are you planning to introduce to ensure non-discrimination in access to education? Do you need a referendum on the issue of discrimination?
  5. As regards Travellers, there are a high level of early school leavers in comparison with the general population, why is this the case?
  6. Ireland is dominated by the Catholic Church, children placed in some Catholic institutions are abused.
  7. Why is the Republic reluctant to grant Traveller ethnic recognition for students?
  8. What measures have you taken as regards measures against racism, thinking particularly against minorities (Muslim students)?
  9. You appear to be considering a strategy as regards intercultural education. This is occurring following the demographic changes-what are the results from the intercultural education strategy? Will Ireland set up secular schools?

Cultural Rights

  1. To what extent does the State ensure participation of refugees and asylum seekers as regards cultural life and institutions of culture?
  2. Why has the State not recognised Travellers in Ireland as a distinct ethnic group? What are the remaining obstacles to recognition of Travellers as a minority ethnic group in Ireland?
#UNIRL Update No. 5: The Committee Questions Minister Sherlock