The length of time that asylum seekers reside within direct provision accommodation, continues to cause significant concern, as it has done so for almost seventeen years. The practical impact of the implementation of the limited recommendations contained within the McMahon Report still remains to be fully seen. The Minister for Justice and Equality has stated that 80% of all recommendations made by the McMahon Report are implemented or are being implemented. However, this claim has not to date been backed up with comprehensive assessment from the Department of Justice. The commencement of the International Protection Act 2015 on 31 December 2016, will hopefully ensure that persons in the protection system receive a fair, procedurally proper and clear decisions on whether they qualify for protection in a timely manner. However, as noted by David Costello, Chief International Protection Officer at a seminar last week, there are 4,000 cases to hand in the International Protection Office (IPO) due to the commencement of the International Protection Act. [With thanks to Fiona Finn, CEO of NASC for making me aware of this]. Oldest cases will be decided first. Those already with a negative determination of refugee status by the now abolished Office of the Refugee Applications Commissioner under the old law, will return to the IPO for determination of their subsidiary protection claim. If subsidiary protection is rejected by the IPO decision maker, then both refugee and subsidiary protection appeals will be considered by the International Protection Appeals Tribunal. Whether this impacts slightly or majorly on timely and fair delivery of protection decisions remains to be seen. A case decided last week may have significant impacts on the right to a timely decision on a protection claim. Continue reading “Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times”
We are pleased to welcome this guest post from Charles O’Sullivan, doctoral candidate at Maynooth University.
In recent days, the Department of Social Protection (DSP) has announced that since January 1st of this year, 4,242 jobseekers have been subjected to penalties for refusal to engage with services, refusal to take up an offer of training or education, or failure to attend meetings. These benefit sanctions can involve a recipient receiving €44 less per week, and where the failure persists after the sanction has been imposed for 21 days, social welfare payments may be withdrawn in full for a period of 9 weeks. In some instances, a complete ejection from the welfare system is possible.
This figure represents a low in comparison to the roughly 6,500 sanctions applied throughout 2014, but far in excess of the 359 issued in 2011. It must also be born in mind that sanctions can now be applied for far lower infractions, such as failure to upload a CV to a government website, demonstrating the degree of coercion now in force.
This increased emphasis on sanctions overlaps with several years of prolonged austerity within Irish society, and what is now a government focused on the continued retrenchment of public services for ideological reasons. Consequently, welfare recipients are required to overcome ever more burdensome procedural hurdles in order to access increasingly limited funds. Callan et al have previously highlighted that those under 25 years of age, single parents, and low-income families with multiple children have suffered the most with each new series of welfare reforms, and have seen their entitlements cut far more than others. The gendered dimension of these cuts must also not be overlooked, as single parents, most of whom are women, are 35% more likely to fall into poverty than other groups. From the perspective of applying sanctions, Adler notes that in the UK groups such as these, as well as the disabled, and immigrants with low levels of English comprehension will be more likely to receive them. This means that the already vulnerable are not only targeted in relation to cuts in welfare rates but also in how much they are policed. Inevitably this will lead to higher levels of deprivation among these groups.
Secondly, the DSP emphasises that any sanctions imposed are proportionate. The result is that the highest penalty of €44 will only be applied to jobseekers in receipt of the top rate of €188 per week, while those receiving, for example, a lower rate of €84.50 would see their benefit temporarily reduced to €64 per week for the prescribed period of time. However, even if one ignores that these are more likely to be imposed on the already vulnerable, that sanctions can be applied to the lowest rates of payment is particularly troublesome.
A further potential consequence is that in forcing jobseekers to stretch their resources even further while sanctioned, they may be less able to comply with the necessary conditions and that this will result in additional sanctions. Research interviews conducted in Scotland show evidence of this, as well as the potentially significant amount of time spent by welfare recipients in order to avoid sanctions which could be spent on something more productive (such as searching for employment).
Finally, the idea that these sanctions are likely to encourage higher rates of compliance and employment is highly problematic. Sanctions essentially act as a means of ejecting, either partially or wholly, the recipient from the welfare system, and make it more difficult for them to engage with the labour market. Research from the United Kingdom found that those who left the welfare system following the imposition of sanctions often do so without having obtained employment, meaning that many are simply left without state income supports. Other research has found that those who do find employment are more likely to take up low-skilled labour, attracting far lower rates of remuneration, and with less certainty as to tenure and working conditions. This also presupposes that there is a high demand for such labour, and where the supply of jobseekers exceeds the demand for them in the labour market, it emphasises that in spite of clear structural deficits it is somehow the jobseeker who is responsible for their continued unemployment. Where higher levels of support are given, even if it means a person being unemployed for longer periods, this can lead to better outcomes in terms of transitioning into employment and the kind of employment they will find.
The legal basis upon which these sanctions can be challenged is somewhat limited for individuals on whom they are imposed. The Constitution itself does not specifically provide for a right to social welfare. Article 45 does allude to the directive principle of supplying income supports and protecting the vulnerable but is not justiciable as a cause of action, and is simply a guiding principle for social policy. Minister for Social, Community and Family Affairs v Scanlon  IESC 1, saw the Supreme Court find that existing rights such as the right to property in Article 43.1 may also not be invoked, as any entitlement to social welfare benefits is created through ordinary legislation alone. Nor do legal principles such as estoppel or ‘reasonable expectation’ create a presumption of entitlement as established in Galvin v Minister for Social Welfare  3 IR 240, and Wiley v Revenue Commissioner  ILRM 482 respectively. Such a challenge would also be impractical for an individual of limited means regardless of how likely or unlikely it is to succeed.
The case of Hurley & Ors v Secretary of State for Work and Pensions saw the English High Court find that a limit being placed on the amount of welfare benefits an individual can receive is indirectly discriminatory where they act as the carer for a person with a disability, based on Articles 8 and 14 of the ECHR. In theory a similar challenge could be brought here, but may still face a judiciary that is deferential to the way in which the State allocates funds and which views welfare payments as a solely statutory right.
Any appeal of sanctions triggered at a national level is as such limited to the appeals mechanism set out in the Social Welfare (Consolidation) Act, 2005 and its supporting instruments, with appeals being lodged through the the Social Welfare Appeals Office, based on the procedure established in Section 318 of the 2005 Act.
It is possible that the systemic issues with sanctions could be raised under the Covenant on Economic, Social and Cultural Rights. As McLachlan recently highlighted, the results of the United Kingdom’s periodic review from the Committee on ESCR were quite unfavourable with regard to benefit sanctions and their detrimental effect on the lives of welfare recipients. During Ireland’s own review last year, this issue was not raised, but it would be possible for civil society and other social actors to raise this issue in future in the hopes of a similar outcome. This would require that the circumstances in Ireland are of a comparative standard and are clearly demonstrable. However even this would require that the State is amenable to altering the current system, as a being found to have violated rights within the Covenant would not immediately trigger the need for changes by itself. Consequently, any substantive, systematic changes require a political will that seems to be absent at present.
Post by, Caroline Reid, Communications Officer with the Irish Refugee Council
On April 10th 2016 the system of Direct Provision will be 16 years in existence. For the last few years this date has been marked by many people contributing to an open call for submissions (see www.humanrightsireland.ie or #DirectProvision15). These submissions have been varied and came from many different people, sectors and angles. They all served to highlight and explore the failings of Direct Provision and the detrimental impact it is having, and has had, on the men, women and children forced to live within it. The date has been marked retrospectively up until now. This year we want to look forward and concentrate on what could be.
The Government say that there is no alternative.
They say that alternatives have never been put forward.
They say if they end Direct Provision it will mean over 4,000 people will become homeless, as if that is what those who campaign for an end to this inhumane system are advocating for.
Alternatives are possible, they are achievable, but unfortunately there has been no political will from our successive governments to address Ireland’s current and ongoing form of institutionalised living.
Last year saw thousands of people across Ireland offer rooms, houses and other practical solutions for the initial reception of refugees.
The principles of initial short term reception for people in need of asylum have been talked about for quite some time. Based on these, and perhaps more focused areas or groups that may be of interest to you, we are this year not focusing on the legacy of Direct Provision. Instead we are looking forward and we are making a public call for submissions on what alternative models could look like.
Your idea may be for a general initial reception system, a community cooperative scheme, housing collectives or for schemes that enable people to live with people in the community. Perhaps you have something in mind for a particular group of people? We are seeing different models being tried out in other European countries, e.g. for the LGBTIQ asylum seeking community; Female only housing; Specialised accommodation for people who have particular vulnerabilities; Family only accommodation; Perhaps you think there should be special provisions for young people who turn 18 and are removed from their foster carers as they are now considered “aged out minors”? The only thing restricting your submissions is your own creativity in developing a humane and open reception system for people.
Submissions can be written, visual, a blueprint, design based, or simply links to other initiatives happening across the world that you believe we can replicate here. The online campaign will hopefully culminate in plenty of food for thought for our soon to be Government. Let’s make #DirectProvison16 something that we can build on and move forward with. Let’s create political will by offering practical solutions that counter the current government line.
~ cap on length of time in initial reception
~ embodies the best interests of the child
~ allows for self-determination
~ is based on care, not profit
~ identifies & supports individuals with special needs & vulnerabilities early on
~ makes early legal advice available
~ includes independent complaints (to the national Ombudsmen)
~ includes inspection mechanisms
~ provides the right to work
~ fosters rather than deters social inclusion
- If you are interested in contributing you should email your submissions to firstname.lastname@example.org
- Materials should be forwarded by Wednesday 6th April at 6pm (late arrivals can’t be guaranteed to go live but we will try our best!). The material must relate to alternatives to the direct provision system, it may simply be your thoughts or reflections.
- A number of organisations and individuals have already been invited to contribute; with growing support for an end to Direct Provision this is an excellent opportunity for you to demonstrate your support for this call and to show that you stand in solidarity with the people failed by this inhumane system.
For those not wishing to submit a blog post, but wishing to other wise engage, please let others who may be interested know about this blogathon:
- Call your local TD (or their office) and let them know about direct provision; ask your TD what they are doing on your behalf to highlight the failure of the direct provision system. You can find contact details here.
- Write or email your local TD on 10th April 2015 asking them to explore and support alternatives to Direct Provision (email addresses available here).
- On Twitter, use the hashtag #directprovision16 , please share posts, engage in debate and discussion, raise awareness with friends, family and colleagues.
- All of the submissions will be available on www.humanrights.ie or on a Tumblr page set up to mark 16 years of direct provision and what the future could look like if there was political will to change what has become a profiteering system of reception.
Please share this information on your own Facebook/Twitter/Tumblr page and aim for a Twitter storm for the hashtag #directprovision16
Dr. Tomaso Ferrando
This is the second post of the online symposium on the Paris Climate Agreement co-hosted by Law and Global Justice at Durham and Human Rights in Ireland. The first contribution by Julia Dehm can be found here: http://humanrights.ie/economic-rights/reflections-on-climate-action-in-the-aftermath-of-paris/ .
December 12, 2015 will be remembered as the date when the Paris Agreement under the United Nations Framework Convention on Climate Change (the Agreement) was adopted. However, the fact of identifying the Agreement with one date and of attributing it to one specific city are processes of intellectual simplification that overlook two of the most relevant aspects of COP21. On the one side, they divert the attention both from the ten days of diplomacy and blackmails that preceded the final euphoria and from the months of corporate and civil society lobbying governments on the draft text. On the other side, the idea of the Paris Agreement hides the territorial fragmentation of what could be called the Climate Change Complex (CCC) into multiple spaces across the metropolitan area, spanning from the entrenched pavilion of the negotiations to the open air gatherings that occurred in the streets and squares of the French capital.
Among the most interesting pieces of this multi-territorial complex there was the “Espaces Generation Climat” (Climate Generation Areas -CGA), a 27,000m² collection of conference rooms, exhibitions areas, restaurants and relax areas that the UN erected in the immediate proximity to the United Nations conference center in Le Bourget. In the words of the UN, the CGA represented the first institutionalized attempt in the history of climate conference organization to provide an area for public gatherings, discussions and education.1 Moreover, its program and content were defined taking into consideration the comments and requests advanced by the 117 organizations that responded to a public consultation launched by the UN General Secretariat in December 2014 and closed on January 2015. Finally, the CGA was widely publicized as “an international space for debates and exchanges linked to the ecological transition on the one hand and the discovery of solutions to address climate disruptions, provided by civil society, on the other.”2
This short comment is a reaction to my experience in the CGA and to my perceiving it as a moment of false inclusion that, like the final agreement concluded in Paris, noticed the existence of alternative paradigms but was fully embedded in and constructed around the reproduction of the dominant rhetoric about climate change.
A space (nominally) open to all
“Since they investigate the commitment of all generations,” it was claimed by the presentation of the CGA, “these areas will be the part of the 2015 Paris Climate Conference site that is open to all. They seek to encourage debate on solutions to climate change.”3 However, anyone who tried to reach the venue would have immediately noticed the “open to all” slogan being inaccurate.
First of all, it appears paradoxical to consider the space as “open to all” interested in discussing climate change, if this space is located in the heart of the Global North, thousands of kilometers away from most of the people who are engage in a daily fight against climate change and whose participation would have been – to say the least – essential. And this is also true for the whole negotiations. I am sure the whole process would have looked very different, if the COP had been organized on the Kiribati Island, in Darfur or Chennai. Moreover, it is even harder to define ‘open’ a pavilion that was built within a closed and patrolled gated area, secured by fully geared military police and with x-ray and access gates controlled by airport security.4
Secondly, even those privileged ones who had the opportunity to be in Paris would have questioned openness and accessibility of the space, in particular if they did not have a car (and you would not believe how many people drove a car to reach a climate change forum) and had to spend more than one hour to reach the city of Le Bourget. As a consequence, the gas-alimented shuttle buses from the metro to the conference center (in some cases a hybrid bus in some cases not even so) were mainly filled with European and American climate change habitués, that is representatives of corporations and NGOs, journalists and a small niche of interested individuals who had the time and money to attend the events.
Finally, it would have been hard to meet inside the CGA the most committed environmental activists. In the days before the COP, in fact, the extension of the state of emergency and the assimilation of some environmental movements to terrorist groups – at least in the way in which the police acted and the authority that it retained – had led to the issuance of numerous measures that reduced the freedom of movement of those individuals who had been most involved in the organization of grass-roots movements and bottom-up realities in Paris and surroundings.5
However, the most troublesome problem with the CGA as a first historical attempt to open climate negotiations to the community was not represented by its being geographically and logistically distant from the most affected and the local citizenship. What was really interesting – as I discuss in the next section- was to see how the form and content of the “space for international debates and exchanges” reflected the final agreement in its being almost entirely co-opted by the interests of capital and powerful states, funded on the paradigm of technological solution and carbon sequestration, and open to some expressions of alternative visions only to the extent they did not exaggerate and could be easily silenced.
Islands of diversity in a sea of “business as usual”
Since its adoption, the ‘Paris’ agreement has been the object of several critiques. People living on the islands and coasts that are mostly affected by climate change, indigenous communities who are in the at the forefront of climate devastation, and progressive civil society have underlined the non-binding nature of the text, the insufficiency of the intended nationally determined contributions, its pro-corporate orientation and its blind commitment to the false solutions of carbon trading and technological innovation. According to them, negotiators should have been more ambitious, respond to the needs of the most marginalized and vulnerable people, tackle the systemic roots of climate change and introduce a new global paradigm based on the needs of people (rather than those of countries) and on the idea of climate justice.
However, the shortcomings of the agreement should not come as a surprise. It would have been enough to spend few hours inside the Espaces Generation Climat and to skim through the almost three-hundred conferences and the names of their organizers to understand that the UN Climate Change Complex was not structured around the needs of the weakest and most affected. In particular, the way in which the public space of the CGA was organized and its intellectual content clearly revealed that the objective was to utilize the rhetoric of inclusion to legitimize the reproduction of the status quo. Some islands of paradigmatic diversity were allowed, but they were surrounded by a sea of intellectual homogeneity and market-based trajectories.
“Climate justice” appeared in the title of four conferences; the role of workers and just transition were discussed in five panels; two panels touched upon the link between meat production and greenhouse gases; indigenous people could be spot walking across the alleys in their traditional dresses and had two permanent gazebos; moreover, some NGOs organized pro-people and anti-corporate interests protests almost every day in ways that were visible to the press but never disruptive of whole Climate Change Complex. Around these few pockets of alternative, the ten days of CGA were occupied by the vision of transnational corporate groups (like Veolia and Suez talking about the future of water), the privatizing dreams of the International Chamber of Commerce (engaging with ’emerging solutions to drive private investments in climate resilience’), and the homogenizing vision of corporate social responsibility (Rainforest Alliance, Global Compact, and Marine Stewardship Council), reforestation, carbon sequestration, green growth and financialization of the environment (EcoVadis, OroVerde, Climate Economics, Proyecto GuateCarbon, Brazilian Institute of Research and Carbon Management, Carbon Tracker Initiative).
As if this was a “climate change fair”, hostesses and stewards welcomed the visitors with fliers, articles on sale and gadgets, including a corporate-branded notebook made with 91% renewable paper (i.e. 9% not renewable and who knows how energy-intensive), the Paris COP21 Michelin guide (where the tires producer underlines the link between mobility and human development and indicates a €36 euro meal a good value opportunity) and bars of “The change chocolate”, a “sweet reminder to support Climate Neutral Now and the biggest afforestation project ever” (as climate change had nothing to do with worldwide shipping and value chains – including of cocoa -, reforestation was not infringing upon the rights of local communities, and planting trees was by its nature a good action). And for those who felt a little hungry or thirsty (but not environmentally concerned) non-certified and non-geographically identified meat-based meals were available in the Place de La Republique restaurant or at the hamburgers truck, together with Coca Cola cans and bottled water. A little worried about the negative implications of livestock production and commodified water, the Marine Stewardship Council (MSC) logo would be there to get rid of your guilty feelings, while you eat fish and chips right next to a stand that is denouncing the depletion of seas and of marine resources,6 and it would only cost you one Euro to borrow a COP21 cup and drink from the few public fountains disseminated in the pavilion. “The first institutionalized attempt in the history of climate conference organization to provide an area for public gatherings, discussions and education” was, therefore, an attempt to impose and legitimize the same paradigmatic framework that would characterize the final agreement.
Reading the 131 pages of the draft decision, preamble and text adopted by the COP21, the term climate justice is mentioned only once, and towards the end of the preamble. There, the 196 countries agreed to notice “the importance for some of the concept of “climate justice.”7 A couple of paragraphs later, the preamble concludes with the recognition “that sustainable lifestyles and sustainable patterns of consumption and production, with developed country Parties taking the lead, play an important role in addressing climate change.”8
The negotiators that concluded the “world’s greatest diplomatic success” – according to The Guardian-9 acknowledged the anti-redistributive implications of climate change, the intrinsic connection between global capitalism and global warming and the need for a radical change of the worldwide economic structure, but considered them irrelevant in defining the way forward. Similarly, the ‘open to all’ space of the CGA recognized the existence of promoters and supporters of climate justice and alternative visions, but embedded them in a context that was based on opposite premises and objectives. Dissent and alternative visions were not ignored, but noticed and absorbed, both in the text adopted by 196 countries and in the space provided for public engagement with the roots and solutions for climate change.
However, the lack of ambition and the impasse that characterized both the COP21 and the Espaces Generation Climat were transformed into energy and motivation by the thousands of people who crowded the streets and squares of Paris. In particular on December 12th, the day when the agreement was concluded, peasants, indigenous communities, anti-colonial movements, large NGOs and common citizens defied the state of emergency to manifest their dissent and claim for respect, dignity and a binding commitment to the 1.5 degrees threshold. They recognized the urgency and the irreversible pattern of climate change and challenged governments to keep fossil fuels in the ground, decarbonize, abandon nuclear energy, support agroecology, assume responsibilities for the loss and damages of the past and do everything possible to undertake a just transition and create a better future.
Both the agreement and the Espaces Generation Climate reveal the monolithic, inadequate, and homogenizing nature of institutionalized spaces of engagement with climate change. However, their limits and shortcomings provided the energy and the disillusion required to build new spaces for dialog, alternative platforms for participation, and think of more effective forms of resistance. The hope is that, from now on, global action for climate change will not be defined by the voices coming from above, but by those coming from below. As a matter of fact, a systemic and real transformation will only happen when justice, dignity, equality and the lives of marginalized and excluded will not be treated as trivialized tokens anymore, but the founding pillars of the new global agenda.
Dr Tomaso Ferrando , Warwick Law School
1 UN Conference on Climate Change ‘Climate Generations Areas’, available at <http://www.cop21.gouv.fr/en/les-espaces-generations-climat/>.
4 The attacks that took place in Paris on November 13th, 2015 may explain part of the security measures adopted. However, the decision to hold the meeting outside the city center and within a gated perimeter was taken long before those events.
5 See e.g. Aurelien Bouayad, L’écologisme est-il un terrorisme?, Le Huffington Post, January 12, 2015, available at <http://www.huffingtonpost.fr/aurelien-bouayad/lecologisme-estil-un-terrorisme_b_8824742.html>; Umberto Bacchi, COP21: France uses Paris attacks’ state of emergency to detain environmental protesters, International Business Time,
6MSC was funded in 1996 by the WWF and Unilever and became independent in 1999. In the last years, the program has been widely criticized by Greenpeace and other environmental groups for its low standards, its governance structure and the certification criteria. See Greenpeace, Assessment of the Marine Stewardship Council (MSC) Fisheries Certification Programme , available at http://www.greenpeace.org/international/Global/international/planet-2/report/2009/6/marine-stewardship-council-MSC.pdf
7See the preamble of the United Nations Framework Convention on Climate Change (United Nations, Conference of the Parties, Twenty-first session, Adoption of the Agreement, Annex I, United Nations Framework Convention on Climate Change, Preamble, FCCC/CP/2015/L.9/Rev.1, Paris, November 30 to 11 December 2015).
9Fiona Harvey, Paris climate change agreement: the world’s greatest diplomatic success, The Guardian, December 14, 2015, available at http://www.theguardian.com/environment/2015/dec/13/paris-climate-deal-cop-diplomacy-developing-united-nations (last visited 19 December 2015).
This is the first contribution of an online symposium co-hosted by Law and Global Justice at Durham and Human Rights in Ireland on the Paris Climate Agreement. The call for contributions is still open, and inquiries should be addressed to Ms Ntina Tzouvala (email@example.com).
#COP21 in Paris has produced a global legal agreement to address climate change which allows governments and world leaders to celebrate their “historic” and “landmark” commitments, all while delaying the action that is necessary to address climate change. The Agreement, although framed in terms of “high ambition”, provides only a slight moderation of “business as usual”. The Paris Agreement fails to meet all the elements of the “Peoples’ Test“, the criteria that social movements, trade unions and environmental groups agreed would need to be meet for a fair and effective agreement. It fails to catalyze an immediate, urgent and drastic emission reductions; provide adequate support for transformation; deliver justice for impacted people; or focus on genuine effective action rather than false solutions. It thus, breaches multiple climate justice “redlines”. The Paris outcome has been called a “fraud”, “fake” and “bullshit” by eminent climate scientist James Hanson and was described by Global Justice as a text that “undermines the rights of the world’s most vulnerable communities and has almost nothing binding to ensure a safe a livable future for future generations”. Others pronounced that the talks had “failed humanity” with negotiations focused more on “commercialization of nature” than “saving Mother Earth”.
These scathing assessments however sit uneasily with the celebratory tone of the mainstream press, political leaders and large environmental NGOs who have heralded the deal as “landmark”. The UNFCCC proclaimed it a “historic agreement to combat climate change and unleash action and investment towards a low carbon, resilient and sustainable future.” International lawyers have been more measured in their reactions, but prominent commentators have assessed the Paris Agreement as a “triumph” that “strikes a fine balance between ambition, differentiation and finance”, while another international lawyer described it as “potentially pivotal”, a “solid outcome” that satisfied a modest criteria of success. In this context it is critically important to interrogate both the substance of the Paris Agreement, but also its reception, given it is, as the Director of Global Justice writes, “outrageous that a deal is being spun as a success”. The disjuncture between these highly divergent perspectives can perhaps be explained by George Monbiot’s pertinent assessment that “by comparison to what it could have been, it’s a miracle. By comparison to what it should have been, it’s a disaster”. In a similar vein, other NGOs have welcomed the Paris Agreement, while acknowledging its very real shortcomings as “a hook on which people can hang their demands” and a “new tool to work with” as they continue to mobilize to build the peoples’ power that will be necessary to hold world leaders to the commitments they have publically made.
The highly divergent and irreconcilable responses to the Paris Agreement however are primarily reflective of the differently situated standpoint of those assessing it. It is the people who are on the frontlines of climate change who have been the loudest in condemning the agreement whilst it is those who have the most to lose by the radical transformation of the status quo that climate change demands, that have been most vocal in its praise. Further, the contradictory assessments of the Paris Agreement reflect different understandings and framings of the “problem” of climate change and nature of the social, economic, cultural and political change addressing it demands. The voices who have praised the Agreement are primarily those who conceptualize climate more narrowly as a technical and regulatory challenge that can be addressed within existing capitalist social and economic relations, in many case through an expansion of “green capitalism”, markets for environmental services and pollution trading. In contrast those most critical of the Paris Agreement are groups and individuals with a climate justice analysis that see climate change as embedded within and both reflecting and reproducing global structural inequalities. A media briefing put out by Oxfam during the Paris talks highlights “extreme carbon inequality”. Their analysis suggests that the poorest half of the global population, approximately 3.5 billion people are responsible only for 10% of global emissions from individual consumption, 50% of emissions can be attributed to the richest ten percent, yet, cruelly, it is those who have least caused the problem who are most vulnerable to its effects.
From a perspective attentive to the global distribution of responsibilities and vulnerabilities produced by climate change the Paris Agreement is not only inadequate in its ambitions but further accentuating of these inequalities. It puts in place a “bottom-up” voluntarist framework for climate governance that allows for the abrogation of responsibilities for mitigation and financial support for mitigation, adaptation and addressing already exiting climate change by the most polluting countries. Moreover, the Agreement is structurally unable to contest the logic of economic growth and persistent accumulation driving the crisis given the continual reliance upon and expansion of market-mechanisms and the commodification of the atmosphere as central to its mitigation methods.
Gap between rhetoric and commitments
A key failure of the Paris Agreement is the gap between the stated objectives of “holding the increase in the global average temperature well below 2°C above pre-industrial levels and to pursue effects to limit the temperature increase to 1.5°C above pre-industrial levels” and the actual emission reduction pledges made by countries. While the inclusion of the 1.5°C was a major symbolic victory pushed for by the most vulnerable countries, given that exceeding 1.5°C warming entails unacceptable impacts for billions and people and risk exceeding irreversible tipping points, the actual pledges submitted by 187 countries (called “intended nationally determined contributions” (INDCs) in UNFCCC-speak) have been assessed by independent monitors and the UNFCCC to put the world on track to 2.7 – 3.4°C warming. The INDCs of key polluting countries propose only minimal reductions of 1% per year, while others propose reductions compared to “business as usual” and thereby lock in actual increases in emissions. This graph, from a UNFCCC report shows how the properly implemented INDCs will still see a steady growth of aggregate global emissions to 2030. Overall emissions are expected to continue to increase for the next 15 years by significant amounts: an estimated 8-18% increase from 2010 levels by 2025 and a 11-22% increase from 2010 levels by 2030.
Given that the actual pledges made by Parties effectively lock in a catastrophic future, there has been significant focus on the provisions in the Agreement for a “global stocktake” (Article 14) to “racket up” ambition. The first such review is scheduled for 2023 (and every five years thereafter). However at current rates of emissions we could blow the global “carbon budget” we must stay within in order to have a reasonable chance of limiting warming to 1.5°C in six years. That is, by the time the emissions reductions commitments in the Paris Agreement are revisited the window on limiting warming to 1.5°C could already be slammed closed. As such, the lofty language of “ambition” and laudable objectives and promises of future action has operated as dangerous panacea at Paris masking delays with some commentators suggesting that optimism could be call the “new denialism”.
Paradigm shift to a new voluntarist architecture for climate governance
This gap between intention and action is however not the most problematic aspect of the Paris Agreement, rather it is the inequitable framework for action and the sidelining of climate justice demands that are of key concern. The Paris Agreement “completes a paradigm shift” from the top-down model of the Kyoto Protocol, structured around the differentiated obligations of nations based on the developed/developing bifurcations, to the more voluntarist “bottom-up”, “pledge and review” approach of the controversial Copenhagen Accord (2009). This shift has several consequences. Firstly, there is no mechanism beyond peer pressure in the review process to ensure that the voluntary emission reduction commitments made by countries match what the levels of action the science tells us is necessary. Secondly, this voluntarist framework imposed no obligation that countries accept responsibility for meeting at least their “fair share” of the global mitigation effort. Countries, due to their differential wealth and income levels have differentiated capacity to take mitigation action, while the differentiated levels of continued per capita and historical emissions imposes differentiated moral responsibilities to take mitigation action. A recent civil society assessment of the INDCs stressed that “the operationalization of equity and fair shares must focus on historical responsibility and capacity, which directly corresponds with the core principle of the UN climate convention of “common but differentiated responsibilities – with respective capabilities”. The assessment found that “all major developed countries fell well short of their fair shares” while the “majority of developing countries have made mitigation pledges that exceed or broadly meet their fair share”. As such, a third consequence of this “paradigm shift” is that while the principle “common but differentiated responsibilities and respective capabilities” is articulated in the Paris Agreement (Article 2(2)), there is much less scope for its operationalization in a meaningful way.
The issue of climate finance was controversial at the Paris summit, with the US angering developing countries by proposing that the costs of climate finance should be equally born by developed and developing countries. The Paris Agreement states that “(d)eveloped country Parties shall provide financial resources to assist developing country parties with respect to both mitigation and adaptation” (Article 9(1)) but fails to specify amounts or impose obligations on specific states. (Developing countries are “encouraged” to provide such support voluntarily (Article 9(2)). The related COP decision reiterates an intention to continue the existing mobilization goal of USD 100 billion annually by 2020 (first articulated in the Copenhagen Accord) until 2025. To date, much of this promised climate finance has failed to materialize. Although a recent OECD report argued two-thirds of this has been transferred, developing countries accused its methodology as being “deeply flawed” raising concerns this money is neither new nor additional. Given that the United Nations Environment Program has estimated that the cost of climate adaptation could reach $210-300 billion annually by 2050, even if temperature rise was limited to 2°C, these pledges, even if delivered fall horrifically short of what is necessary.
The Paris Agreement further restricts rights of those who are most vulnerable to the effects of climate change in another critical way. The question of compensation for the impacts of climate change has been pushed by small island states since a Convention was first envisioned in 1990. The Paris Agreement included provisions for “loss and damage” (Article 8) for already occurring climate change impacts, however, the COP decision accompanying the decision specifically
Agrees that Article 8 of the Agreement does not involve or provide any basis for any liability or compensation (Decision -/CP.21, para 52).
Reports have claimed that the discussion of compensation for loss and damager were shut down by the US through a mixture of bullying and bribery, which these discussions considered “off limits” as the US “categorically refused to consider any proposal for reparations for the damage rich countries’ emissions have already caused”. The impact of already happening climate disasters is enormous, both the human and economic costs, as demonstrates by the devastation of deadly floods in Chennai, the devastation of Typhoon Haiyan in the Philippines and Tropical Cyclone Pam in Vanuatu. A 2013 World Bank report found that natural disasters cost $200 billion annually, three-quarters of these costs from extreme weather. The issue of compensation for already existing climate impacts is not a question of charity or aid, rather it is accepting the legal and moral obligations of the rich world to repay debts accrued due polluting activities that have caused the climate crisis which is disproportionately devastating those already impoverished by historical and ongoing relations of colonial plunder. Even as climate change disproportionately and devastatingly hits those least responsible for causing the problem and who are already impoverished the hardest, the Paris Agreement fails to impose responsibilities upon those who have transformed the climate to repay their “climate debts” and establish proper mechanisms of international co-operation and support.
Failing to drive necessary structural transformations
Although major newspapers have reported that “200 nations sign in the end of fossil fuel era,” the Paris Agreement does not mention the words “fossil fuels”, “coal” or “oil”. It contains no commitments to leave fossil fuels in the ground, despite the fact that over 80% of proven fossil fuel reserves must remain underground extracted to have reasonable chance of restricting warming to 2°C. Nor does it contain any commitment to remove the over US$500 billion annually in subsidies for fossil fuels (a figure that dwarfs what governments give in climate finance or support for renewable energy technologies). In the immediate aftermath of the Paris Agreement, Australia’s environmental minister approved the controversial Abbott Point coal port, which if built would be one of the world’s largest coal export terminals while the US repealed its crude oil exports restrictions. The same leaders who made speeches about “ambition” at Paris in domestic policy decisions continue to lock-in a fossil fuel intensive future that will fry the world. It is clear that the Paris Agreement, in itself, will not mobilize and galvanize the structural transformation away from fossil fuel that is urgently necessary, instead pressure to keep coal and gas in the ground is coming from increasingly transnationally organized grassroots climate justice movements and frontline communities fighting for land, water, clean air and a habitable future.
Further, rather than addressing a key root cause of climate change, namely fossil fuel extraction, the Paris Agreement aims “to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century” (Article 4(1)). This language of “zero net emissions” has been described as a “dirty secret” of this deal by the ETC Group. The climate emergency requires urgent action be taken to “keep oil in the ground” but also to draw down carbon from the atmosphere through agro-ecology and reforestation. The danger of “net zero” approaches is that they “may prove to be a trap that delays real climate action” and “could allow for business-as-usual greenhouse gas emissions, offset by massive-scale mitigation through the land sector”.
Reliance on neoliberal market-based approaches
The Paris Agreement represents a further consolidation of the deeply neoliberal market-driven approach towards climate mitigation that has proven to be so problematic in the Kyoto Protocol. The Agreement envisions the use of carbon trading as a key means by which mitigation is achieved. Although these words “carbon”, “trading” or “markets” do not directly appear in the text, Article 6 recognizes “voluntary cooperation in the implementation of their intended nationally determined contributions” and the use of “internationally transferred mitigation outcomes” and establishes a mechanisms to support such approaches. Over half the international nationally determined contributions put forward by countries state that intend to use carbon markets to achieve their mitigation promises. The Agreement has been welcomed by Carbon Pulse as “ring(ing) in a new era of international carbon trading”, and similarly celebrated by the International Emissions Trading Association as having a “clear role for markets“. The World Bank response to the Paris Agreement promise to “explor(e) ways to create incentives for large scale cuts in emissions by widening and deepening carbon markets“. These highly neoliberal responses of the climate crisis operate to further commodify and financialize the atmosphere and create a “spatial fix” whereby the emission reduction obligations of the rich world can be displaced through a form of post-modern environmental indulgences. The Kyoto Protocol’s market-mechanisms and the European Union Emission Trading Scheme (ETS) have been heavily criticized for creating perverse incentives and providing a dangerous distraction from the social transformations that are urgently necessary. The Paris Agreement fails to learn from the many flaws of market-based approaches and instead envisions an expansion of these highly problematic mechanisms.
Further, Article 5 of the Paris Agreement provides for “action to conserve and enhance, as appropriate, sinks and reservoirs of greenhouse gases” through the controversial Reducing Emissions from Deforestation and forest Degradation (REDD+) mechanism. Although many of the details of the REDD+ framework have yet to be finalized, it envisions allowing “offsets” produced from “additional” forest protection in the global South to be used towards achieving the emission reduction targets by countries in the global North. These schemes have been criticized as a “false solution“, that fails to reduce aggregate global emissions, that could promote a new “landgrab” over forest areas and violate the rights of the 1.6 billion people, many of whom identify as indigenous, that live in and around forested areas. Indigenous activists have argued that REDD+ promotes new forms of “carbon colonialism” or CO2lonialism. Indigenous groups, social movements have vocally opposed the “false solutions” such as carbon trading that are part of the Agreement and “called on movements to continue to build their own, just alternatives to the political and economic systems that have caused the climate crisis”. In response to the Paris Agreement, Tom Goodtooth, Director of the Indigenous Environment Network said:
Instead of cutting CO2 and greenhouse gas emissions, the UN, the US, the EU, China, Norway and climate criminals like BP, Total, Shell, Chevron, Air France and BHP Billiton are pushing a false solution to climate change called REDD (Reducing Emissions from Deforestation and Degradation). REDD is a carbon offset mechanism which privatizes the air that we breathe and uses forests, agriculture and water ecosystems in the Global South as sponges for industrialized countries pollution, instead of cutting emissions at source. REDD brings trees, soil, and nature into a commodity trading system that may result in the largest land grab in history. It steals your future, lets polluters off the hook and is a new form of colonialism. NO to Privatization of Nature!”
The promotion of these carbon offset schemes was a key reason why indigenous rights activists were so concerned about the removal of any reference to human rights and indigenous peoples rights from the final agreement. Bracketed text that addressed human rights, indigenous rights and gender equity was removed from the Agreement’s objectives and included only in the Preamble, after pressure from Britain, Norway and the US. In response Indigenous “kayactivists” paddled down the Seine River to protest this exclusion, continuing the struggle activists have fought since 2007 to ensure UN climate projects respect indigenous rights.
Where to now?
The failure of the Paris Agreement come as no surprise to climate justice social movement groups, many of whom were highly skeptical of the talks and the hope that was being invested in them. The UNFCCC Conference of the Parties have in recent years quite literally become Conference of the Polluters “serving as exhibitions and promotional fairs for the world’s biggest environmental criminals.” In Paris activists targeted the corporate capture of the talks, by staging protests at the “Solutions COP21” side event where companies such as Engie (formerly GDF Suez), Carrefour, Veolia, Sofiprotéol and Schneider Electric promoted corporate responses to climate change, where they were dragged out by police.
There are however, as Jess Worth and Danny Chivers write, reasons to feel positive about Paris, not because of the Summit or its outcomes, but because of the organizing and vibrant protests of social movements in the streets outside. Despite the repressive conditions state of emergency imposed by the French state, grassroots groups affirmed they would take to the streets despite the ban, many facing violent repression from French police who attacked, tear gassed and arrested hundreds of protestors. On the 12th of December people took to the streets, depicting visually the “redlines” that the Agreement crossed, thousands marched condemning the failures of the Agreement. A Declaration put out by the group It Takes Roots reads:
We leave Paris only more aligned, and more committed than ever that our collective power and growing movement is what is forcing the question of extraction into the global arena. We will continue to fight at every level to defend our communities, the earth and future generations.
It is this spirit of defiance and dedication to disrupting that status quo that holds the best hope for still minimizing the devastating impacts of climate change. After the Copenhagen climate summit ended disastrously in December 2009 with global leaders failing to reach a legally binding climate agreement climate activists in Newcastle, Australia took action into their own hands, stopping a coal train headed to the largest coal export terminal in the Southern hemisphere and unfurled a banner: “Greed wreaked Copenhagen. Now its up to us”. Six years later, global leaders are celebrating a “landmark” agreement that nonetheless fails people and the planet. Substitute “Copenhagen” for “Paris” and the message is the same, and the same spirit of continuous struggle will be necessary to contest the vested interests and the drive for accumulation that has brought us to the brink of planetary disaster.
Julia Dehm (Postdoctoral Fellow, Rapoport Center for Human Rights and Justice) firstname.lastname@example.org
 See also Lucas Chancel and Thomas Piketty, “Carbon and Inequality: from Kyoto to Paris” (3 November 2015, Paris School of Economics) <http://piketty.pse.ens.fr/files/ChancelPiketty2015.pdf>.
We would like to lend our strong support to the motion recently before the Dail to recognise Travellers as an ethnic minority. This is a long overdue development. The preventable tragedy of Carrickmines brings this imperative further to the fore. History will not look kindly on those individuals and political parties voting to deny Travellers this basic right to ethnic recognition.
c/o Dr. Paul Downes, St. Patrick’s College, Dublin City University
Professor Gerry Whyte, Trinity College Dublin
Leah O’Toole, Marino Institute of Education
John Fitzgerald BL
Dr. Ann Louise Gilligan (retired), St. Patrick’s College, Drumcondra
Dr. Padraig Carmody, Trinity College Dublin
Professor Ursula Kilkelly, School of Law, University College Cork
Dr. Stephen Kinsella, University of Limerick
William Binchy, Fellow Emeritus, Trinity College Dublin
Siobhan Phelan SC
Professor Aoife Nolan, School of Law, University of Nottingham
Professor Fionnuala Waldron, St. Patrick’s College, DCU
Marion Brennan, Early Childhood Ireland
Dr Mark Taylor, Goldsmiths, University of London
Dr. Marie Moran, University College Dublin
Professor Carmel Cefai, University of Malta
Dr. Audrey Bryan, St. Patrick’s College, DCU
Declan Dunne, Sophia Housing and Homeless Services,
Denise Mc Cormilla, National Childhood Network
Dr. Maggie Feeley, UCD
Dr Anthony Cullen, Middlesex University, London
Dr. Sylwia Kazmierczak-Murray, Cabra School Completion Programme
Dr. James O’Higgins Norman, DCU
Dr. Padraic Gibson, The Bateson Clinic
Dr. Susan Pike, St. Patrick’s College, DCU
Fran Cassidy, Social Policy Consultant/Filmmaker
Dr. Maeve O’Brien, St. Patrick’s College, DCU
Frank Gilligan, Ballyfermot Local Drugs Task Force
Dr. Geraldine Scanlon, DCU
Dr. Catherine Maunsell, St. Patrick’s College, DCU
Dr. Majella McSharry, DCU
Dr Liam Thornton, UCD
On December 8th 2015, UCD School of Law will host the launch of Suzanne Egan’s new edited collection International Human Rights: Perspectives from Ireland. The book will be launched by the Chief Commissioner of the Irish Human Rights and Equality Commission (IHREC), Emily Logan.
Location: Gardiner Atrium, UCD School of Law
Time/Date: 6.30pm on 8th December 2015.
International Human Rights: Perspectives from Ireland examines Ireland’s engagement with, and influence of, the international human rights regime. International human rights norms are increasingly being taken into account by legislators, courts and public bodies in taking decisions and implementing actions that impact on human rights. Featuring chapters by leading Irish and international academic experts, practitioners and advocates, the book combines theoretical as well as practical analysis and integrates perspectives from a broad range of actors in the human rights field. You can access the full table of contents for this book here. Egan’s collection explores:
- The philosophical development and challenges to/of human rights;
- The international human rights framework (UN human rights council; UN Treaty system; EU and ECHR);
- Implementing human rights in Ireland (Magdalenes, socio-economic rights, rights of the child; human trafficking; religion; privacy; refugee definition; criminal justice, policing and conflict).
- Implementing human rights abroad (Irish foreign policy and obligations of Irish organisations).
Bloomsbury are offering all registered students (full and part time) a 40% discount on the book, with the discount code: IHR40%. You should enter this code at checkout.
It has been an interesting time for asylum and immigration policy in Ireland. Last week saw the publication of the MacMahon Report on Direct Provision (read Liam Thornton’s analysis here), then, at the weekend, leaked documents provided some insight into Ireland’s “hands-off” approach to early EU negotiations on search and rescue in the Mediterranean. Yesterday, the Immigrant Council of Ireland published research on the experiences of young migrant men, which suggests that the Gardaí and other public servants should undergo anti-racism training.
Against this background, the following post addressing the long-term question of Ireland’s approach to the “integration” of migrants may be of interest. It was written as a guest column for “Immigrant News”, the ICI’s daily epaper.
In May, the Immigrant Council of Ireland and the Migrant Integration Policy Index (MIPEX) launched the MIPEX 2015 findings for Ireland, which involved a comprehensive measurement of policies to integrate migrants and the outcomes of these policies. We did not fare well, ranked 19th of 38 countries surveyed and below all Western European countries except Austria and Switzerland. These results came only a short time after census figures suggested that the Irish school system is becoming increasingly segregated and ghettoised.
The Immigrant Council of Ireland is now calling for (among other things) the development of a comprehensive National Integration Strategy. So where does Irish integration policy currently stand, and where should we go from here?
The Rise and Fall of Integration Strategy in Ireland
To date, integration policy has been largely piecemeal, with various government departments and public bodies producing diversity and intercultural strategies (for example, intercultural strategies in the areas of education and health, and a diversity strategy for An Garda Síochána). The first formal strategy for integration was produced in 2008 by the newly-established Office of the Minister for Integration. This document, called “Migration Nation”, outlined the principles intended to underpin Irish integration policy.
The central features of the policy statement are its mainstreaming approach to the provision of services for new communities; its situation of integration policy in the context of the general social inclusion and equality framework; and its insistence on a two-way model of integration. Other notable features include the emphasis placed on respect for cultural differences and the lack of emphasis on identity or “values” issues. The practical areas of language education; interpretation and translation; information provision; and funding arrangements information are identified as the key areas crucial to integration success, rather than areas relating to culture or values. This was welcome, especially when seen in the broader European context of a retreat from multiculturalism and an exclusionary focus in integration policy on “shared values”.
While, broadly speaking a mainstreaming, intercultural approach drawing on EU integration policy is endorsed in the policy documentation, a more developed specific vision of integration still seems to be lacking. Aside from Migration Nation, the only integration-specific document to emanate from the Office for the Promotion of Migrant Integration (“OPMI”) related to the specific group of resettled refugees.
Since its establishment, the OPMI’s role has been centred on facilitating integration at grassroots level through the funding of sporting groups, NGOs and faith-based community groups rather than developing an overarching integration framework which could be used to inform the action of other state bodies. It also has “a cross-Departmental mandate to develop, lead and co-ordinate migrant integration policy across other Government Departments, agencies and services”. The decentralised approach taken to date to integration is reflected in the focus on the development of integration strategies by local authorities rather than by the OPMI. This is a rather narrow approach to integration which suggests a political reluctance to tackle the deeper issues, particularly those which might require public spending.
The main reason for the lack of progress in the field of integration has been the impact of the financial difficulties which Ireland has been experienced since late 2007. The financial crisis and dramatic rise in unemployment resulted in April 2009 in a return to net emigration for the first time since 1995. These developments have meant that integration is no longer as immediate an issue as it was between 2000 and 2007 and it slipped down the political agenda. The harsh budgetary measures accompanying the financial crisis have impacted on the equality and integration infrastructure through, for example, the closing of the National Consultative Committee on Racism and Interculturalism and the cuts in funding for the Human Rights Commission and Equality Authority (now the Irish Human Rights and Equality Commission).
The plans set out in Migration Nation to establish new integration structures, including a standing Commission on Integration and a Task Force to establish future policy needs, were shelved, and the Ministerial Council on Integration is defunct. The provision of language teaching was hit hard by budget cuts, and immigration reform under the Immigration, Residence and Protection Bill 2010 was abandoned. In 2011, the position of Minister for Integration itself was abolished. The combined effect of these measures has meant that integration policy has effectively been on “pause” for the last number of years.
A New Integration Plan: The Importance of Immigration Law Reform
There is clearly a need for a more developed, nuanced and long-term approach to integration than that in existence in Ireland at present. This has been recognised by Government, and a new integration strategy is expected later this year. The current review of integration strategy has involved a public consultation and engagement with key stakeholders.
As mentioned already, the absence of focus on “cultural integration” in Migration Nation was hugely positive and should be replicated in the general philosophy of any new strategy. However, a key element of the development of a comprehensive strategy is that it also needs to be acknowledged that “integration” encompasses core constitutional and other legal rights and issues, including a secure migration status and family rights. Any new integration strategy must expressly recognise the impact of immigration law on integration, and be accompanied by immigration reform, in order to be meaningful. While Ireland scored well in MIPEX in the areas of political participation and anti-discrimination, a particular area of weakness identified was the discretionary nature of access to family reunification and long-term residence. We currently have among the most discretionary (and least favourable) policies in the developed world in these spheres. These entitlements need to be placed on a secure, transparent, statutory footing to ensure certainty, efficiency and equality of access.
Unless the importance of migration and citizenship law to integration is formally recognised, it is unlikely that Ireland will progress beyond being a country which is, to use MIPEX’s scoring system, “halfway favourable” to the integration of immigrants.
You 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.
2 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.
You 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.
- 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). There is an additional recommendation for the Department of Social Protection to reinstate Community Welfare Service officials in direct provision centres and strive for consistency in administration of Emergency Needs Payments.
- Qualified Recommendations
The Right to Work: Once the single procedure is “operating efficiently”, 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. The right to work should continue until the end of the protection determination process. 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.
Access to Education: For school-going children, access to a homework club (on school grounds or in the direct provision centre) is necessary. There are 60 students aged 15-18 who are currently in direct provision and will sit their leaving cert in 3-4 years time. 100 young people obtained their leaving certificate in the last 5 years and live in DP centres. 21 students sat the Leaving Certificate in 2014. 22 students were scheduled to sit their leaving cert in 2015. For adults (new arrivals, the McMahon Report recommends access to English language education within one month. For those 6 months + in the direct provision system, information on other potential courses open to them should be made available. 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. 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). The McMahon Report recognised that this does not impact in any way on those currently in the system. 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. A number of health promotion initiatives and information leaflets on health services should be made available to protection seekers.
Support for Vulnerable Protection Seekers, including LGBT Protection Seekers: Organisations providing services to protection applicants “should consider training staff in LGBT issues”. 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”. The McMahon Report also recommends that information leaflets to highlight LGBT issues “displayed prominently”, along with RIA Safety Statement highlighting LGBT issues. 
Supports for Separated Children: All separated children over 16 should have an aftercare plan. Currently, the HSE provide aftercare support to 82 separated children who have reached 18 years. “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. Training and other supports should be provided to foster carers to assist a young person’s transition to direct provision. 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.
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 and building community linkages. This also includes a suggestion to open up direct provision centres for an “Open Day”.