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)
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
#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>.
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.
Bríd Ní Ghráinne is a lecturer in International and Refugee Law at the University of Sheffield. She holds a DPhil from the University of Oxford and an LLM for Universiteit Leiden. She can be contacted at email@example.com. A shorter version of this article is available at the Oxford Human Rights Hub blog.
As the European refugee ‘crisis’ worsens, the Hungarian government is resorting to more extreme border control measures that test the parameters of international law. The Guardian reported on 17 September that Hungary had fired gas canisters and sprayed water at crowds of frustrated refugees who had briefly broken through the fence that separates Hungary and Serbia. It was also reported that asylum-seekers’ claims were being assessed and rejected ‘within minutes’. These reports have ‘shocked’ the international community, and the purpose of this brief piece is to give an overview of the legal issues engaged.
There are three separate legal regimes that bind Hungary in respect of these events. International law, and in this case, the 1951 Refugee Convention, takes primacy for reasons that will not be discussed in detail here. European Union Law as well as the 1950 European Convention of Human Rights are also relevant as Hungary is party to the EU and the Convention.
Regretfully, history has shown us that rejection at the frontier is not an uncommon response in cases of mass influx of refugees, such as in April 1999, when Macedonia closed its border to Kosovar refugees at the Blace border crossing. Article 33(1) of the 1951 Refugee Convention, to which Hungary became a party in 1989, provides that no-one shall be expelled ‘in any manner whatsoever’ to the frontiers of territories where their lives or freedoms may be in danger. This provision applies to recognised refugees as well as asylum-seekers, and there is strong academic consensus that this provision applies to those presenting themselves at the border, as is the case in Hungary. However, whether the lives of the refugees who have been pushed away from the border with Serbia are now in danger is difficult to tell and therefore it is unclear if Article 33(1) has been engaged on this occasion. If they eventually have to return to Syria (if that is where they came from), then there has certainly been a breach.
A stronger argument can be made that Hungary’s ‘pushback’ actions are in breach of EU and European Human Rights Law. The Dublin III Regulation, which provides that the first EU country in which an asylum seeker arrives has responsibility for determining that asylum seeker’s status, does not render Hungary’s actions legal. Thus if another EU country has been entered prior to arriving at the Hungarian border, Hungary does not necessarily have the right to refuse asylum. Under international law (as opposed to EU law), there is no obligation incumbent upon a refugee to make an asylum claim in the first country of arrival. Further, many of the asylum-seekers trying to cross the Hungarian border would have first arrived in Greece, which does not have a functioning asylum processing regime. Thus Hungary would be responsible for deciding the claim, as set out in the Dublin III regulation. Moreover, the European Court of Human Rights found in the case of MSS v Belgium and Greece  that sending an asylum seeker from Belgium to Greece (in the application of the Dublin Regulation) was in breach of the European Convention on Human Rights. This was because the conditions in Greece violated Article 3 of the Convention, which prohibits torture and inhuman or degrading treatment or punishment
Hungary’s argument that Serbia is a ‘safe third country’ also fails upon scrutiny. The safe third country concept provides that asylum need not be granted in the state in which the application was made, provided an alternative state is willing to accept the refugee. Whether sending refugees to a third country is a breach of international law depends on whether effective protection is available in that country. A report by Amnesty International from July 2015 indicates that this is not the case in Serbia, where amongst other factors, refugee recognition rates are extremely low.
The reports of asylum claims being dealt with within ‘minutes’ as reported by the Guardian are also worrying, particularly because there seems to be no effective appeals system and refugees are given information only in the Hungarian language. These actions are arguably a breach of both the 1951 Refugee Convention and the EU Asylum Procedures Directive (Council Directive 2005/85/EC). Although the 1951 Refugee Convention does not formally set out the procedures involved in the determination of refugee status, Goodwin Gill and McAdam in their text The Refugee in International Law (OUP, 2011) argue that the Refugee Convention’s object and purpose of protection and assurance of human rights strongly support an obligation to adopt of effective internal measures. This was the position of the Executive Committee (ExCom) of the United Nations Refugee Agency (UNHCR), which in its Executive Conclusion No. 8 (XXVIII) (1977) set out a range of procedural guarantees to be followed in the determination of asylum proceedings; including that (i) Applicants should receive the necessary guidance as to the procedure to be followed; (ii) Applicants should be given the necessary facilities, including interpreters and contact with the UNHCR, to submit their case; (iii) failed asylum-seekers should be given a reasonable time to appeal and they should be allowed to remain in the country while appeal is pending.
Similarly, the Asylum Procedures Directive guarantees access to a fair and efficient asylum decision and it explicitly applies to applications made at the border. It mirrors the standards set out by the ExCom above, and goes into significant detail regarding the content of the rights granted, such as the conditions under which an interview must take place and the scope of legal assistance and protection. If the allegations of asylum applications being rejected ‘within minutes’ are true, it is highly likely that Hungarian authorities have not complied with these EU and international legal standards.
Finally, it is necessary to examine the legality of the use of tear gas as reported by the Guardian to force migrants back from Hungary’s border. According to the European Court of Human Rights case of Abdullah Yaşa and Others v. Turkey , the use of tear gas in itself is not necessarily a violation of the Convention where a gathering is not peaceful. In the Yaşa case, the gathering was deemed to be ‘not peaceful’ as the demonstrators were throwing stones, as was reportedly the case with the migrants at the Hungarian border. However, the European Court of Human Rights also found that the use of tear gas can be a violation of Article 3 of the Convention where excessive force is used, for example, where tear-gas grenades are launched (Yaşa), or where tear gas is used on someone deprived of their liberty (Güneş v. Turkey ). As the exact circumstances surrounding the use of the tear gas at the Hungarian border is not clear, it seems difficult to come to a conclusion whether the Hungarian authorities’ actions in this respect were unlawful.
In sum, the actions of the Hungarian authorities in allegedly dismissing asylum applications ‘within minutes’ and in rejecting refugees at the frontier are appropriately condemned as a violation of International, EU, and European Rights Law.
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.
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.
The Working Group has made a number of unqualified recommendations, qualified recommendations and requests for further reviews of different aspects of direct provision accommodation.
The Unqualified Recommendations
These recommendations relate to a number of core areas, including:
Multi-Disciplinary Assessment: Multi-disciplinary assessment of needs of protection applicants within 30 days, and for this to be taken into account in the protection determination process, with follow up on an “on-going and regular basis”. Communication between different statutory agencies and others (RIA, legal advisors, health care providers etc.). Steps should be taken to encourage protection applicants avail of this assessment.
Accommodation Provision: All single residents sharing rooms and all family units should be provided with an individual locker for storage of personal items. This should be acted on without delay. All requests for tenders should specify adequate indoor and outdoor recreational space for children and young people, and consultations with resident children and young people “should be built into the specifications.” All requests for tenders for centres for single people should specify the requirement for communal kitchens. There should be consultation with residents on 28-day menu cycles.
Standards and Oversight: Extending the remit of Ombudsman and OCO to cover complaints relating to services provided to persons in direct provision and transfer decisions. Residents can contact either (or both) offices after internal mechanisms are exhausted (including an independent appeal). RIA must appoint an officer to ensure complaints are dealt with. Complaint mechanisms must be open to all residents, including children and young people. RIA must build confidence and trust in these complaints systems and that residents will not be adversely affected by making a complaint and “ensure centre management buy into the importance of ensuring an open culture that is conducive to residents making complaints.” Contracts with providers should ensure managers have experience of working with refugees and protection applicants. Centre Managers should have knowledge of basic mental health issues and health services, social welfare system, medical issues, a compassionate and empathetic style.
Transfers: RIA should continue to provide detailed reasons for involuntary transfer. Recording of statistics in relation to voluntary and involuntary transfers.
Child Protection: Access to cultural diversity training for social workers, with the identification of a named social worker by the Child and Family Agency and the Health Service Executive to contact in each direct provision centre. RIA is to continue to have consideration of child safety when assigning residents to direct provision centres.[13
Community Outreach: By the end of 2015, all direct provision centres should enter into partnership agreements with local leisure and sports clubs.
The Qualified Recommendations
These recommendations all relate to accommodation provision. All recommendations as regards greater respect for private and family life are significantly qualified. RIA informed the Working Group that it was not clear that all centres would be “structurally in a position to effect the proposed changes…” It could take “upwards of” two years, from issue of tender to get new accommodation on stream that would meet the recommendations of the McMahon Report. In any event, given the “market for self-contained units”, some of the recommendations below may not be possible to implement.
Two core phrases come up time and again in the McMahon Report’s recommendations on direct provision accommodation: “in so far as practicable” and “subject to any contractual obligations”. All direct provision accommodation facilities are to be in line with a proposed “Standard Setting Committee” that will “reflect government policy across all areas of service in Direct Provision”. The highly qualified recommendations include: Continue reading “The Direct Provision Report: Summary of Recommendations on Accommodation Standards”→
The focus on speedy determination of asylum claims is nothing new. In the 2002 Programme for Government, the Fianna Fail and Progressive Democrat coalition stated (optimistically):
“We will ensure that new asylum applications are dealt with within six months and that other applications, which are currently outstanding, can be dealt with quickly.”
Similar promises (without time commitments) were made in the Fianna Fail and Green Party Programme for Government 2007-2012, and the Fine Gael and Labour Programme for Government 2011-2016. The McMahon Report provides substantial recommendations as regards numbers of decision makers needed to ensure meeting a 12 month period for disposal of protection and leave to remain claims once the single procedure is operating “efficiently”. In order to ensure the efficient operation of the single procedure, the Working Group has proposed that all individuals in the protection, leave to remain or deportation processes, for 5 years or more, should, in general, be granted either protection status or leave to remain within 6 months of this reports publication. The McMahon Report “discounted the possibility of an amnesty”. Instead, the McMahon Report recommends:
“All persons awaiting decisions at the protection process and leave to remain stages who have been in the system for five years or more from the date of initial application should be granted leave to remain or protection status as soon as possible and within a maximum of six months from the implementation start date subject to the three conditions set out below for persons awaiting a leave to remain decision. It is recommended that an implementation start and end date be set by the authorities as soon as possible.”
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.
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. 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”.
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.
After consultation with Non Governmental Organisations (NGOs) in September 2014, the terms of reference and membership of the Working Group was announced on 13 October 2014. 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. The McMahon Report emerged over eight plenary meetings, with the sub-groups identified below meeting on 38 separate occasions. 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”.
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. 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):
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. However, I argue, there are significant concerns with the recommendations that have emerged as regards direct provision accommodation and supports for asylum applicants.
 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.
 18 September 2014: Consultation with NGOs as regards terms of reference for the Working Group and other aspects of the protection process.