Asylum Seekers and the Right to Work: The Supreme Court Decision

Supreme CourtBy virtue of section 9(4) of the Refugee Act 1996, asylum seekers are absolutely prohibited from seeking or entering employment in Ireland. This provision has now been replaced by section 16(3)(b) of the International Protection Act 2015.  This provides that an asylum seeker,

shall—….

(b) not seek, enter or be in employment or engage for gain in any business, trade or profession…

Is this absolute prohibition on asylum seekers from entering, seeking or being in employment unconstitutional. The Irish High Court said no. The Irish Court of Appeal said no (see Maria Hennessy’s analysis of these decisions here).  The Irish Supreme Court has answered yes.

O’Donnell J (and the other six Supreme Court judges who agreed with this decision) have now decided to adjourn proceedings  for six months, after which an order will be made declaring the absolute prohibition of asylum seekers from exercising a right/freedom to work, unconstitutional. The Supreme Court agreed with the Court of Appeal ruling that no challenge existed to this prohibition under the ECHR Act 2003 (which I think is very problematic..) nor the European Union Charter of Fundamental Rights.

As O’Donnell J. noted, the core question that the Supreme Court had to decide could be broken into three core parts:

  1. Whether there is an right to work under the Irish Constitution?

O’Donnell J. decided that yes, there is a qualified right to work under Art. 40.3 of the Irish Constitution. The reason I am saying qualified, is because, in light of earlier jurisprudence, O’Donnell J. has categorised this as a freedom to work, subject of course to other considerations (i.e. qualifications, experience to enable a person conduct the work they want to). The freedom to work goes to the “essence of human personality” (para. 13), even if (para. 15)

Much work is drudgery, often the subject of complaint rather than celebration, and most often an economic necessity as a means to live a chosen life rather than an end in itself.

O’Donnell noted that the constitutional recognition of what might be called a right or freedom to work does not entail obligations for provision of work, or even require the Government to adopt economic policies to enable full employment (para. 12).

However, the freedom to work recognises the “essential equality of human persons mandated by Article 40.1” of the Irish Constitution (para. 13).  Interestingly, and the first time ever to my knowledge, an Irish Court (and the Supreme Court no less) has relied directly on a general comment from the UN Committee on Economic, Social and Cultural Rights (para. 16) on the right to work:

The right to work is essential for realizing other human rights and forms an inseparable and inherent part of human dignity. Every individual has the right to be able to work, allowing him/her to live in dignity. The right to work contributes at the same time to the survival of the individual and to that of his/her family, and insofar as work is freely chosen or accepted, to his/her development and recognition within the community.

The Supreme Court stated that this description is “broadly consistent with that which was the background to the constitution” (para. 16). By exercising a freedom to work, a person can then ensure the protection of his/her other rights, within the family sphere, within the social sphere and within the societal sphere (para. 15). The right to work or more precisely the freedom to work, has been recognised by the Supreme Court as a fundamental part of human personality.

2. Whether  an asylum seeker can rely on this constitutional freedom to work?

The Supreme Court did note that a non- (EU) citizen has no automatic right to work in Ireland, this is subject to permission being granted. However, asylum seekers who are lawfully in the State for the duration of their protection claim, cannot be compared to other migrants who might be seeking a permission to work in Ireland. The right to work which goes to the “essence of human personality”, cannot be absolutely excluded for those seeking asylum. Work is fundamentally connected to ‘dignity and freedom’ (para. 15) and cannot be withheld from non-citizens.  ‘Significant distinctions’ can exist in the field of entry to employment between citizens and non-citizens and the Supreme Court stated the Oireachtas and “(where appropriate) [the] executive” judgment on the precise contours of the right to work for asylum seekers will in the main be respected by the courts.  The Supreme Court noted that the “pull factor” argument is a legitimate argument the Oireachtas may make reference to (para. 18). The Oireachtas may determine that by granting the right to work, it may make it more difficult to remove an asylum applicant who is not entitled to protection. In addition, the Oireachtas may have a power to limit the freedom to work for asylum seekers “to defined areas of the economy perhaps where there is a demonstrated need.” (para 18)

Therefore, while an asylum seeker may have the freedom to work, the Supreme Court decision provides significant scope for the Oireachtas to place limitations on this, and limitations that could not be placed on citizens. Its hard to equate the Supreme Court’s views on what may be permissible limitations, with the Supreme Court noting in para. 20 of its judgment the “damage to the individual’s self-worth and sense of themselves”.

3. What Next?

The Supreme Court decided that “in principle” they were prepared to hold (at para. 21):

where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s.9(4) ( and re-enacted in s.16(3)(b) of the 2015 Act ) is contrary to the constitutional right to seek employment. However, since this situation arises because of the intersection of a number of statutory provisions, and could arguably be met by alteration of some one or other of them, and since that is first and foremost a matter for executive and legislative judgement, I would adjourn consideration of the order the Court should make for a period of six months and invite the parties to make submissions on the form of the order in the light of circumstances then obtaining.

The ball is now firmly in the court of the Oireachtas. However, the Oireachtas must be reminded (contact your TD here), that they are not starting from a blank slate.

First, the Irish High Court has already ruled that maladministration in rendering of a lawful decision on a protection claim may result in damages being awarded to an asylum seeker. Therefore, whatever course of action the Oireachtas takes, lets get this right. There has to be some focus on the ability of our quasi-judicial bodies who determine protection claims to do their work efficiently, but most importantly to be fair to asylum applicants.

Second, It would appear, that if Ireland became part of how European Union society deals with this question, then our Parliamentarians need to look no further than EU law for a solution to this constitutional protection of asylum seekers right to work. The Recast Reception Directive (which Ireland is not bound by), provides asylum seekers a right to work should generally be granted after 9 months where a first instance decision has not been rendered on a refugee/protection claim. The McMahon Working Group on the Protection Process and Directive Provision made a recommendation  (para 5.49) that once the International Protection Act 2015 was operating efficiently, that Ireland abide by this 9-month rule. Whatever the Oireachtas decide, this constitutional right of asylum seekers to have a freedom to enter employment must be effective, and not illusory (borrowing how the European Court of Human Rights insists on the realness of granted rights).

Image credit: Michael Foley

Asylum Seekers and the Right to Work: The Supreme Court Decision

Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

imagesThe 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”

Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

Is the United States in Breach of the Air Transport Preclearance Agreement 2008?

This post is authored by Dr Darren O’Donovan, Senior Lecturer in International Law, Administrative Law and Human Rights, in  LaTrobe Law School, Melbourne. 

A lot of Irish media discussion in the preclearance debate has begun to feature rhetoric such as Ireland can’t “let the United States operate preclearance given the new executive order”, or that “Ireland should make a statement and close preclearance”. Opponents (they would call themselves realists) would argue that as a small country with a small economy this is far too dramatic a foreign policy step. To debate the legality of preclearance fully however, we need to emphasise that United States obliged, under international law, to operate its preclearance in line with the bilateral agreement between Ireland and the United States signed in 2008.

In this post I want to therefore frame questions for the United States government, and for use by United State citizens. The big one is of course simply: Is the United States in breach of its international legal agreements with Ireland by applying the executive order in Irish airports? The key provision of the 2008 Agreement Article II (1) which states that:

“Nothing in this Agreement shall be construed as diminishing the rights enjoyed by individuals under the Constitution and laws of Ireland and, where applicable, the United States.”

As we have discussed in an earlier blogpost there are a range of potential, to be explored, arguments as to why the application of the executive order within Ireland’s jurisdiction may be unlawful under Irish law. What is significant however, is that we in Ireland cannot simply say that US law is a matter for US authorities. US law in fact sets the scope of their international legal obligations towards us, and it may even require us to give redress to some individuals (see question 4 below). We need to fold the United States’ bilateral obligations into the debates about preclearance.

Questions for the US Embassy/State Department:

  • As under the Article II of the 2008 Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under Irish law, what steps have you taken to ensure that the application of the executive order does not exceed the terms of the 2008 Agreement?
  • As under Article II of the Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under United States law, can you confirms what steps you have taken to confirm that the provisions of the executive order are compliant with United States law?
  • In the event you determine the executive order is not compliant with Irish law, are you willing to commit to not applying the executive order in preclearance areas at Dublin and Shannon Airport?
  • Given the close and abiding bilateral ties between the United States and Ireland, is it appropriate for the executive order to be applied in Irish airports while it is currently before the United States courts? We refer you in particular to Article IV(2) which appears to require Ireland to provide a system of redress in event of the “unlawful exercise of powers associated with the administration of preclearance“. This Article is not limited in its express terms to the unlawful administration of Irish law . Can you provide your view of the extent to which the Government of Ireland may be liable to provide redress for the actions of US government officials under this Article?

Ireland: The Supporters of the Preclearance System

What this post attempts to show is that being a supporter of preclearance means actually enforcing the agreement we made in 2008, and exploring potential United States’ breaches of it. It is difficult to imagine Irish parliamentarians not supporting the principle that preclearance only extends to the scope of the 2008 Agreement. Any Irish legislation which implements this principle does not ground any United States entitlement to immediately modify or withdraw from the 2008 Agreement. It would enjoy only its usual right to withdraw after one year. It should, however, be noted that in the event the United States is in material breach of the treaty, Ireland enjoys the right to suspend or withdraw from the 2008 Agreement after a brief period of consultation (as per Article 60 of the Vienna Convention on the Law of Treaties).

Is the United States in Breach of the Air Transport Preclearance Agreement 2008?

Open Letter: Recognition of the Travelling Community as an Ethnic Minority in Ireland

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

Open Letter: Recognition of the Travelling Community as an Ethnic Minority in Ireland

Book Launch: International Human Rights: Perspectives from Ireland, 8 December 2015

EganOn 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. 

RSVP: law.events@ucd.ie 

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

Book Launch: International Human Rights: Perspectives from Ireland, 8 December 2015

Hungary’s Border Control Actions: Past the Borderline of International Law

 

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 b.a.nighrainne@sheffield.ac.uk. 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 [2011] 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 [2013], 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 [2012]). 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.

 

 

 

Hungary’s Border Control Actions: Past the Borderline of International Law

Interculturalism and Immigration Reform? Integration Policy in Ireland

Migration Nation1It 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.

Interculturalism and Immigration Reform? Integration Policy in Ireland

The Direct Provision Report: A Missed Opportunity

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

You can access the McMahon Report here.

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

Human Rights Obligations and Direct Provision Accommodation and Supports

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

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

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

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

The Direct Provision Report: A Missed Opportunity

The Direct Provision Report: An Overview and Introduction

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

You can access the McMahon Report here.

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

Pic Credit: Merrion Street

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

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

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

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

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

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

[7] McMahon Report, para. 20.

[8] McMahon Report, para. 8.

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

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

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

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

The Direct Provision Report: An Overview and Introduction

Ireland goes before the UN Committee on Economic, Social and Cultural Rights

UN imageOn Monday, June 8th and Tuesday, June 9th 2015, Ireland will have its third periodic report under the International Covenant on Economic, Social and Cultural Rights (ICESCR), assessed by the UN Committee on Economic, Social and Cultural Rights. You can follow this examination on Twitter, using the hashtag #UNIRL

What are economic, social and cultural rights?

The right to work, just conditions of employment, the right to social security and social assistance, the right to health, housing, food and water, encompass core aspects of socio-economic rights. Cultural rights include the right to participate in the culture of one’s communities and to enjoy the benefits of scientific and technological endeavour. These rights (and others) are protected in ICESCR.

Ireland before the UN Committee on Economic, Social and Cultural Rights

To date, Ireland has had two periodic reports (1999 and 2002) considered by the UN Committee. On both occasions, the Committee have expressed concern that Ireland has not incorporated ICESCR into domestic law, and the lack of reference and utilisation of ICESCR by the superior courts. Ireland has failed to adopt rights based frameworks in areas of anti-poverty, disability provision of health-care, rights of members of the Traveller community, housing and the low rate of social assistance payments. CESCR identified some core issues with Ireland’s compliance with its obligations under ICESCR in December 2014, and the list of issues to be discussed bear striking similarities to concerns previously expressed by CESCR in their 1999 and 2002 Concluding Observations. (See, Ireland’s response to these issues here). Continue reading “Ireland goes before the UN Committee on Economic, Social and Cultural Rights”

Ireland goes before the UN Committee on Economic, Social and Cultural Rights