Social Welfare Law and Asylum Seekers in Ireland: An Anatomy of Exclusion

End Direct provisionAs noted in July 2013 on this blog, there is currently a challenge to the direct provision system before the Irish courts. The applicants and the State were before Mr Justice Colm MacEochaidh yesterday, September 17 2013 (see report from the Irish Times here and the report of Christine Bohan from The Journal here). The case will be back before Mr Justice MacEochaidh in late October 2013, when it will (hopefully) proceed to a speedy hearing by December.   The outcome of the case may have a profound impact on the much criticised direct provision system (see here, here, here and here). Given the recent and significant criticisms of the system of direct provision by the Northern Ireland High Court, there is a necessity on the Government to fundamentally re-calibrate how Ireland deals with asylum seekers: both in terms of determining whether an individual is entitled to refugee status, subsidiary protection and/or leave to remain AND how our social security system deals with those awaiting a final determination of their protection claim in Ireland.

As regards the system of direct provision and Irish social welfare law, I have argued on several occasions (see here, here, here, here and here) that there is no legal basis for the direct provision system and the Departments of Justice and Social Protection are acting outside their powers.

In recent days, An Taoiseach Enda Kenny at the  International Society for the Prevention of Child Abuse and Neglect’s European conference in Dublin stated in his speech:

Neglect is now the most common type of abuse of children.

Picture a child going to school in the rain without a winter coat;
In damp, dirty clothes having not had a breakfast.

Going home with no guarantee of dinner to a cold house not a home.
For that child ‘loving care’ is a luxury. They just want care, basic care. But for many, it doesn’t happen.

Despite these sentiments of An Taoiseach, children (and adults) in direct provision suffer state inflicted neglect and debasement through direct provision. This is justified on the grounds that they are ‘foreign’, they are not citizens,  they are undeserving of our support, conditions in their home countries would be worse.  The State seems destined to repeat history as regards turning a blind eye and providing significant resources to ensure the long term institutionalisation of those seeking protection in this state.

The current case before the High Court further argues that the direct provision system is unconstitutional and/or contrary to the European Convention on Human Rights. In a recent article published in the Journal of Social Security Law, prior to the commencement of this current court action, I set down precisely how the system of direct provision came into being in Ireland.  A pre-peer reviewed version of this article is available here. Relying extensively on documents obtained under the Freedom of Information Act, the article presents a worrying picture of how legal rights can be set at naught through administrative actions. With knowledge of the dubious legal basis for direct provision since 2007, government departments have repeatedly ignored the lack of a legal basis for direct provision. The abstract for this article is as follows: Continue reading “Social Welfare Law and Asylum Seekers in Ireland: An Anatomy of Exclusion”

Social Welfare Law and Asylum Seekers in Ireland: An Anatomy of Exclusion

UNHCR #do1thing: Sexuality and Refugee Status

The definition of refugee includes those who are members of a particular social group. Section 1 of the Refugee Act 1996 defines this ground as including (amongst others) those persecuted for reasons of their sexual orientation. In a recent United Kingdom Supreme Court decision, HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department the question that arose was whether a person had to be ‘discrete’ in relation to their sexuality so as to avoid persecution by the state. The High Court and Court of Appeal for England and Wales response to this question was ‘yes’. The UK Supreme Court, however, rejected this approach. Lord Roger (at para. 76) inverted the question posed in this case, questioning whether:

a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution.

Fiona de Londras noted in a previous post, how Irish decision makers were finding against the credibility of refugee applicants for not knowing or being involved in the gay rights movement or arguing that they could be ‘discrete’ if returned to their countries of origin. This is a wholly incorrect approach Continue reading “UNHCR #do1thing: Sexuality and Refugee Status”

UNHCR #do1thing: Sexuality and Refugee Status