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

The EU and the 25th anniversary of the UN Migrant Workers Convention

IJELWe are delighted to welcome this guest blog by Alan Desmond. This blog first appeared on www.crimmigration.com.

As we approach the 25th anniversary of the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), Migrants Matter, a group of postgraduate students and young professionals concerned with the treatment of migrants in Europe, is calling on Dimitris Avramopoulos, the EU Commissioner for Migration, Home Affairs and Citizenship, to support ratification of the ICMW by EU Member States.

Adopted by the UN General Assembly on 18 December 1990, the ICMW is one of the ten core international human rights instruments. It is similar to some of the other core human rights treaties like the Convention on the Rights of the Child (CRC) in that it takes the rights set out in the two treaties of general application, the ICCPR and the ICESCR, and codifies and elaborates on them in relation to a particularly vulnerable category of persons, in this case migrant workers and members of their families. What distinguishes the ICMW from the other core instruments is that it is the only one of the ten which has not yet been signed or ratified by any of the 28 EU Member States. Continue reading “The EU and the 25th anniversary of the UN Migrant Workers Convention”

The EU and the 25th anniversary of the UN Migrant Workers Convention

Committee Stage Amendments to the Capacity Bill – Semantic Change or Real Reform?

committeeTomorrow, the Assisted Decision-Making (Capacity) Bill finally progresses to Committee stage in the Dail. This Bill seeks to abolish the outdated ward of court system which currently provides the only mechanism in Irish law for removing the legal capacity of an adult and appointing a substitute decision-maker to take legal actions on that adult’s behalf. The introduction of this Bill has been broadly welcomed by civil society, organisations of persons with disabilities, healthcare professionals, families and state bodies – especially as it has been recognised by government as a key reform which is needed in order to enable Ireland to ratify the UN Convention on the Rights of Persons with Disabilities. However, many organisations and inviduals, including a coalition of NGOs working in the fields of disability, mental health and ageing – have identified changes which need to be made to the Bill to ensure that it fully respects the rights of adults in Ireland to make their own decisions, with support, if they wish.

The Department of Justice has published the amendments it proposes to introduce to the Bill at Committee stage here – where you can also read the amendments proposed by all members of the Dail Select Committee on Justice, Defence and Equality. Some of the amendments proposed by the Department are most welcome – and respond to the concerns highlighted by NGOs based on the text of the Bill as first published. One such amendment is the proposal to remove co-decision making agreements from the court process and to make them a more flexible and accessible instrument, similar to the decision-making assistance agreement. Another example is the change in the name of the state body which will oversee implementation of the new law, from the ‘Office to Public Guardian’ to the ‘Decision Support Service.’ While this might seem like a minor change, it can be viewed as an important reaffirmation of the purpose of the legislation – not to provide for paternalistic interventions into people’s lives – but rather to support individuals’ autonomy and self-determination.

However, other amendments proposed by the Department of Justice demonstrate that the ‘paradigm shift’ called for by the UN Convention on the Rights of Persons with Disabilities has not yet been fully achieved. The Centre for Disability Law and Policy, along with other NGOs, has argued that in order for the Bill to have practical and meaningful effect in the lives of people with disabilities – the threshold for ability to enter into a decision-making assistance agreement should be lowered from what was set out in the original text of the Bill. This has not been included in the Department’s proposed amendments to the Bill at Committee stage.

Further, the UN Committee on the Rights of Persons with Disabilities has now clarified in General Comment 1 that ‘perceived or actual deficits in mental capacity’ can never be used as a justification for a denial or restriction of legal capacity, ‘even in respect of a single decision.’ The Capacity Bill, as originally drafted, relied on an ‘assessment of mental capacity’ to determine what kinds of support an individual could access under the Bill, or whether an individual would have her legal capacity restricted by the appointment of a decision-making representative (a form of substitute decision-making). The amendments set out by the Department have not changed this approach – but the Department has proposed to replace the term ‘mental capacity’ in the Bill with the term ‘decision-making capacity.’ In my view, this change is no more than window dressing, as ‘decision-making capacity’ is given the same meaning as ‘mental capacity’ and continues to be used as a basis for restricting legal capacity. A similar critique can be made the Department’s proposal to remove the term ‘informal decision-making’ from the Bill, while retaining legal protection for third parties who make substitute decisions on behalf of persons who they believe ‘lack capacity’ (the very power which was originally provided to ‘informal decision-makers’ in the original text of the Bill). These proposed amendments therefore, do not address the concerns raised by civil society that those most in need of decision-making support will be denied the opportunity to make binding assistance agreements, and that an unacceptably wide power is granted to substitute decision-makers, who have not been chosen by the person or appointed by the court, to make decisions on behalf of a person they believe to ‘lack capacity.’

Based on the amendments proposed by the Department of Justice, the capacity/incapacity paradigm is now firmly embedded in the Bill – in decision-making assistance agreements, co decision-making agreements, decision-making representative orders, powers of attorney and advance healthcare directives. Again, while a number of submissions were made by NGOs to the Department to advocate that advance healthcare directives be recognised as legally binding in situations of involuntary detention (see here and here) – this proposal has not been reflected in the amendments introducing advance healthcare directives to the Bill at Committee stage. Finally, the relationship between this Bill and other areas of law where ‘mental capacity’ or ‘decision-making capacity’ is used as a criteria to restrict or deny legal capacity (for example in mental health law, sexual offences and eligibility for jury service) has not been clarified in the amendments proposed at this stage.

Along with many others, I will be watching the debate tomorrow with interest, and hope to see some of the concerns outlined here addressed by the members of the Committee. This debate is all the more significant since the Bill is one of the key pieces of legislation which government has deemed necessary in order to facilitate Ireland’s ratification of the UN Convention. In my view, if the Bill is not amended to ensure compliance with the UN Committee’s interpretation of Article 12 of the Convention, then it will remain a barrier to Ireland’s ratification of this important human rights treaty.

Committee Stage Amendments to the Capacity Bill – Semantic Change or Real Reform?

Are There Limits to Absolute Privilege?

We are delighted to welcome back Dr. Jennifer Kavanagh of Waterford Institute of Technology with this guest post on the role of the Defamation Act 2009 in discussions about media reporting of Dail privilege.

Introduction

The issue of parliamentary speech and protecting both the speech rights of members of the Oireachtas and the media are important aspects of civil and political rights. The ability of members of the Oireachtas to raise matters of public importance without the ‘chilling effect’ of defamation law is a common feature of western democracies based on a common law tradition.

However, the ability for parliamentary speech which is covered by absolute privilege to permeate the media without restriction and for the media to act in their role as the ‘educators or public opinion’ was questioned. This issue has been highlighted by the recent restriction placed on the reporting of the statements of Catherine Murphy to the Dáil by RTÉ. Even though Mr Justice Donald Binchy has clarified and released a redacted version of the High Court judgment, the impact on political speech of Oireachtas members remains.

 The Role of Oireachtas Members and the Need for Absolute Privilege

The members of the Oireachtas are there to theoretically hold the Government to account. One fundamental part of their role is to air issues of public importance. For this reason it is essential that their speech is not subject to the review of the courts. The protection is known as absolute privilege and means that the statement of members of the Oireachtas in the chambers of either the Dail or the Seanad cannot be considered by a court.

This principle is enshrined in the Constitution. Members of both Houses of the Oireachtas are protected by the Constitution from Court actions in relation to what they say in the House. This type of protection is widely found in democratic states and is considered an important foundation stone for an effective parliament. The Irish version draws heavily from provisions in Westminster. The original version of the protection was incorporated in the Bill of Rights which placed utterances by members of parliament outside of the scope of the courts. Under Article 9 ‘…freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’ Under the provisions of Article 15.13 a TD “shall not, in respect of any utterance in [the Dáil], be amenable to any court”. However a member can be asked to account for what they have said to the House itself.

The provisions of Article 15.13 are reflected in the Defamation Act 2009 which includes what is known as ‘absolute privilege’ in section 17 which states that any statement made in either House is protected. The principle which underpins parliamentary privilege is that members of either house of parliament should be able to raise issues in the public interest without fear of court action.

The rules for debate in the Oireachtas are set by means of Standing Orders and is provided for under Article 15.10 and set out a procedure for the amendment of the Dáil record to reflect a complainant’s side of the story when an abuse of privilege has been found. This procedure under the provisions of Standing Order 59 have proved useful for those that are aware of the process in the past.

The Limits of Absolute Privilege

However there is an issue with the protection reporting such speech in the construction of section 17. If the parallel restriction for speech in court and the reporting of such speech is considered and then contrasted to the protections for parliamentary speech it is clear that there is actually no absolute privilege for reporting the Dáil. This is even more striking when the previous legislation is consulted. Second Schedule, Section 24 of the Defamation Act 1961, provided expressly for the protection of speech when reported from the Dáil.

A fair and accurate report of any proceedings in public of a house of any legislature (including subordinate or federal legislatures) of any foreign sovereign State or any body which is part of such legislature or any body duly appointed by or under the legislature or executive of such State to hold a public inquiry on a matter of public importance.

Impact of Inconsistency

The position of parliamentary speech has now been re-established with the restatement of the order from the High Court judge. However the inconsistency between the drafting of both the provisions leaves the position of the media in doubt. The previous situation where media organisations could not report on the proceedings of the Dáil even though the same statements were freely available on the Oireachtas website and transmissions, showed how the position of the media as ‘organs of public opinion’ were unable to act in their constitutionally mandated role as ‘educators of public opinion’ were unable to tell citizens what transpired in their national parliament. Until the gap between both the 1961 and 2009 Defamation Acts are addressed the possibility of action against the media for statements made in the Dáil will continue.

Are There Limits to Absolute Privilege?

The State’s Positive Obligations under the ECHR in the context of Irish Prisons

MountjoyWe are pleased to welcome this guest post by Conor Talbot. Conor is a PhD Candidate at the European University Institute, Florence, and an Associate Researcher at the Department of Economics, Trinity College Dublin. He can be contacted at ctalbot@tcd.ie.

 

Continue reading “The State’s Positive Obligations under the ECHR in the context of Irish Prisons”

The State’s Positive Obligations under the ECHR in the context of Irish Prisons

Business Said Yes! To Marriage Equality – But Will the Circle be Widened?

 

irelandrainbow_blog_263We are delighted to welcome the latest in a series of cross-posts by Dr Shane Darcy from the Business and Human Rights in Ireland Blog.  The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland. The blog is run by Dr Shane Darcy who is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

Ireland has voted overwhelmingly to extend civil marriage to same-sex couples. In doing so, it became the first country in the world to pave the way for the introduction of marriage equality by way of a public referendum. It was an historic occasion without question, hugely important for the LGBT community and for the advancement of human rights and equality more generally, and something to be very proud of.

Many factors contributed to the YES vote succeeding – the commitment and enthusiasm of campaigners, a high voter turnout, the #hometovote phenomenon, social media, endorsements from all the political parties, as well as what might be an ever-growing support for human rights and equality more generally by people in Ireland. Another factor that is worth considering was the backing of the YES campaign by a number of businesses, both small and large.

Support for the YES side came from some of the world’s largest social media and technology companies, a great number of which have their European Headquarters in Ireland. This included Google, Microsoft, Facebook and e-Bay. Twitter also backed the YES campaign for marriage equality, with Stephen McIntyre, Managing Director Twitter Ireland explaining that:

Twitter is supporting a Yes vote because of our company’s commitment to inclusion and the strong business case for marriage equality. We encourage other companies to do likewise.

Ben & Jerry’s supported the YES side by rebranding one its ice-creams. The position adopted by many of these multinationals replicates the stance they have already taken regarding marriage equality in the United States, where dozens of companies have argued that recognition of same-sex marriage is a “business imperative”.

It wasn’t just the large multinational companies though. Many small and medium sized enterprises backed the YES vote in Error! Hyperlink reference not valid., by fundraising for the campaign, hosting events or displaying YES posters. The Irish Business and Employers Confederation (IBEC) public stated that support for marriage equality was “good for business, good for employees and good for Ireland”, although the Irish Small and Medium Enterprises Association (ISME) did not come out in favour of a YES vote. For smaller Irish businesses, backing the YES campaign was probably more a reflection of the outlook of owners and staff, rather than a conscientious business-orientated decision (although one small business did suffer for a recent stance against same-sex marriage).

GLEN, the Gay and Lesbian Equality Network, played a key role in getting business on board, with its Business for Yes campaign, and its broader Diversity Champions initiative. It has put forward the business case for diversity in the workplace based on organisational reputation, compliance and risk management, staff performance, retention and recruitment. David McWilliams argued that a YES vote would be good for the economy, given the “strong correlation between tolerance and wealth”. And following the referendum, the Irish Examiner ran a lead story regarding Government plans to tap into the “$200bn gay spend”. There is little doubt that there is a business and economic aspect to the issue.

For a narrowly focused campaigning organisation like GLEN, it would obviously seek to garner support from all quarters in order to advance LGBT equality. Making a business case for marriage equality seems to have made sense in the Ireland of today, but it is highly unlikely that it would have been endorsed by large multinational companies or business representative organisations a few decades ago. It is doubtful also whether such companies would promote LGBT rights so openly in other countries where they operate, and where homophobia is rampant and often institutionalized.

The multinationals which backed YES did so as very large and very public companies, for whom their brand recognition and public image are especially important. They were also backing the right horse to some extent. In a recent New Yorker article, Richard Socarides described the evolution of corporate support for LGBT issues in the United States, and how only a couple of decades ago, there were “very few takers” for Bill Clinton’s gay rights initiatives, as compared with today. A majority of companies in Ireland chose not to take any position on the referendum.

This is not to say that business should not be recruited in the context of advancing particular human rights, but rather that the business approach to social issues is highly selective and subject to business realities. Amnesty Ireland, who firmly backed the YES campaign, have expressed their concern about overstating a business case for human rights:

the business case for respecting human rights is unclear. It is evident that … abusing human rights can be very profitable for companies. Linking human rights with successful business also risks undermining the moral argument that businesses are a part of wider society, and should respect the Universal Declaration of Human Rights.

Companies which backed the YES campaign for marriage equality in Ireland have less than exemplary records in relation to other human rights, including privacy, data protection and the rights of workers in their supply chains. Business representative organisations have almost as a matter of course opposed increases in the minimum wage or enhanced protections for the right to collective bargaining and to strike. On LGBT issues, some companies have advocated for “conscience clause” legislation, which could amount to legally permitting discrimination.

The relationship between business and human rights is a complex one, but few would question the view of the United Nations that companies have a responsibility to respect humans rights. When it comes to business promoting human rights and campaigners making the business case for certain rights issues, we need to be a little circumspect and aware of the limitations of these approaches. Glenn Greenwald has written of the exploitation of social issues, such as LGBT rights, for purposes of militarism and imperialism, and in the aftermath of the marriage equality referendum, it has been said that corporate Ireland will try to “milk a YES vote shamelessly”.

The YES victory was a truly momentous day for Ireland, but we shouldn’t hold our breath in terms of expecting business to voluntarily embrace the full range of human rights and equality issues. The positive progressive image that may have been generated for companies which supported the marriage equality campaign should not deflect from the importance of ensuring that business respect for human rights and equality is a legal requirement, and not a business choice.

Business Said Yes! To Marriage Equality – But Will the Circle be Widened?

Ashers Bakery Loses "Gay Cake" Discrimination Case

gay_cake_reuters-640x480In the spring of 2014 efforts to enact same-sex marriage legislation in the Northern Ireland Assembly suffered another setback. Undeterred, QueerSpace, a support group for the LGBT community in Northern Ireland, celebrated its 16th anniversary with an event pushing for reform of the law. Gareth Lee, a volunteer at QueerSpace, ordered a cake for the party bearing the slogan “Support Gay Marriage” from Ashers Bakery. When his order was subsequently rejected and his money returned on the basis that the message offended against the religious beliefs of the bakery owners, the McArthur family, these seemingly innocuous facts exploded into the “Gay Cake” case which has gripped public debate in Northern Ireland for the last year. Continue reading “Ashers Bakery Loses "Gay Cake" Discrimination Case”

Ashers Bakery Loses "Gay Cake" Discrimination Case

Engagements, Unions and the Law: the ‘Re-boot of’ Collective Bargaining in Ireland

We are pleased to welcome this guest post by Professor Michael Doherty, Maynooth University.

Whenever a suggestion is made to strengthen the collective bargaining rights of trade unions in the workplace, the cry that ‘the multinationals won’t wear it’ is never far behind. However, Ireland currently has the weakest legal protection for collective bargaining (the rights of workers to have trade unions or representative groups negotiate terms and conditions of employment on their behalf) in the Western world. Even in the USA, employers can be forced to negotiate with trade unions if certain conditions are fulfilled, under laws dating back to the 1930s.

Continue reading “Engagements, Unions and the Law: the ‘Re-boot of’ Collective Bargaining in Ireland”

Engagements, Unions and the Law: the ‘Re-boot of’ Collective Bargaining in Ireland