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 This provision has now been replaced by section 16(3)(b) of the International Protection Act 2015.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

From the Mediterranean to the Emerald Isle: Ireland’s Role in Upholding the Rights of Refugees and Asylum Seekers

MedNancy Roe is a Social Work and Masters Graduate from Trinity College Dublin (TCD). Graduating with a BSS in Social Work, she went on to complete a Masters in Race Ethnicity and Conflict (TCD) in 2014. She has since worked as a Social Worker and as an Intern with the Irish Refugee Council. This short reflection was written during this Internship.

Every day, refugees flee war, poverty and persecution and make long dangerous voyages over sea, often on make-shift boats, smuggled below deck, in the hope of reaching safety in Europe.

The recent refugee humanitarian crisis in the Mediterranean has received much media coverage. The exposure of the atrocities in the Mediterranean (20 April 2015), where 800 refugees died, men, women and children, including Syrians, Eritreans and Somalia’s, has generated a platform for discussion, whereby Europe’s borders, policies and humanitarian responses are under scrutiny on the international stage. UNHCR spokesperson Adrian Edwards noted that approximately 1,300 migrants have drowned in the Mediterranean in the month of April alone (the total figure this year is approximately 1,776).

Political leaders and representatives in Europe, and elsewhere around the world are being forced to publicly address the issue. Irish President, Michael D Higgins condemned the European response to the crisis. He suggested that we can have a generous Europe based on human values, or one that has within its borders, racism, xenophobia and exclusion.

Two days after this atrocity, Mr Higgins visited Turkey and Lebanon, attending the 100th anniversary commemorations of Gallipoli. Reflecting upon the deaths and victims of World War I, Mr Higgins described “the enormous tragedy of war” as being “linked to “the outrageous aspirations of empire”. He also stated that the eastern Mediterranean and Middle East were still trapped by the “detritus of empire”. A hundred year after Gallipoli, clear parallels can be drawn with regards to the value and respect placed on human life across borders.

Shane O’ Curry, Director of ENAR Ireland advises that the crisis did not begin with the deaths in the Mediterranean, rather “that this crisis is borne out of years of instability in sub-Saharan Africa, north Africa and the Middle East, instability for which some EU countries bear significant responsibility”. O’ Curry urges the Taoiseach in his discussions with other European leaders to show leadership, offer concrete responses, and (quoting Amnesty International) to put people before borders. Continue reading “From the Mediterranean to the Emerald Isle: Ireland’s Role in Upholding the Rights of Refugees and Asylum Seekers”

From the Mediterranean to the Emerald Isle: Ireland’s Role in Upholding the Rights of Refugees and Asylum Seekers

Direct Provision, Local Elections and Political Campaigning

RIAThere has been some developments in the last few hours as regards local election candidates and political campaigning in direct provision centres.  On April 23, Noel Dowling of the Reception and Integration Agency issued Circular 1/14 to all direct provision centre managers [see here: RIA Circular 1-14 of 23 April 2014] noting that there can be no display or distribution of party political leaflets, posters or circulars to residents. This did not prevent addressed literature from being delivered to residents.

On May 14 2014, Noel Dowling of the Reception and Integration Agency issued Circular 2/14 to all direct provision centre managers. This circular varies Circular 1/14 of April 2014 in one important respect:

Candidates who call into centres may be allowed to drop off election leaflets to bve picked up and read by residents if they wish. This material may be left in a suitable designated area of the centre such as the reception desk. Candidates may, if they wish, place on their leaflets their contact details or details of political meetings outside the centre to which residents can be invited.

You can see this full circular here: RIA Circular 2-14 of 14 May 2014

While this still denies asylum seekers the right to be canvassed by candidates for the local election in direct provision centres, at the very least it allows some information to be provided to asylum seekers in direct provision centres. Issues remain with this, I would argue that such a blanket ban on allowing asylum seekers receive (if they wish) election candidates is a disproportionate violation of freedom of expression  as protected under the Irish Constitution and the European Convention on Human Rights Act 2003. This development is due to KOD Lyons who had made representations on behalf of a client. A local election candidate in Cork, Donnchadha O’ Laoghaire (Sinn Fein), had brought the issue to national attention earlier this week. NASC, the Irish Immigrant Support Centre and the Immigrant Council of Ireland  noted the significant legal issues with the previous all encompassing ban on direct provision centres as “politically neutral” zones.

NASC, the Irish Immigrant Support Centre, has cautiously welcomed this development, stating:

RIA have stopped short of allowing canvassing in the centres. We continue to be concerned that the ban on canvassing essentially remains in place. It has to be noted that the Direct Provision Centres are the homes of asylum seekers whilst they are awaiting an outcome of their application.

 

Direct Provision, Local Elections and Political Campaigning

Access to Adequate Medical Treatment for Vulnerable Asylum Seekers in Direct Provision

KOD LyonsHuman Rights in Ireland welcomes this guest post from Colin Lenihan. Colin is a trainee solicitor for KOD Lyons Solicitors a leading human rights & public interest law firm, who represent asylum seekers and other vulnerable migrants. 

Earlier this week a client of KOD Lyons, who is awaiting an appeal to the Refugee Appeals Tribunal, arrived in our office in a distressed state. He was informed by the Reception & Integration Agency (RIA) that he was to be transferred from his direct provision centre in Dublin city centre to a centre in Foynes, Co. Limerick, by the end of the week. He was naturally upset at the prospect of being dispersed to a remote centre in another part of the country, with only 3 days notice.

He is a recovering heroin addict who was receiving daily drug rehabilitation treatment in Dublin. This consisted of daily methadone treatment, weekly medical checkups and he was also seeking regular counselling for his ongoing mental health problems. His medical needs were so strict and continuous, we were immediately concerned at the prospect of him being uprooted and being dispersed to another centre where no such treatment programme was put in place.

KOD Lyons were informed by the HSE drug treatment services in Limerick, which our client was instructed by RIA to link in with, that no system had been put in place to deal with our client’s medical needs. KOD Lyons were informed that due to the short notice of the transfer, an adequate medical treatment programme to address our clients’ needs would not be in place for up to 7 days. We were immediately concerned that if our client were to be dispersed to the direct provision centre in Foynes, the withdrawal of his specific daily medical needs would result in serious risk to his health & safety  and the safety of other residents in the centre.

We sought clarification with RIA as to the procedure which would be in place once our client was dispersed to Foynes. KOD Lyons  specifically requested whether our client would have to travel to Limerick City each day, a 90 minute round trip, to receive his methadone treatment. We argued that such a journey would be unreasonable and detrimental to his health. We argued that while our client was in the direct provision system, the State owed a duty of care to him and that he was entitled to adequate and accessible medical treatment to meet his needs. We sought a stay to the proposed dispersal until such adequate procedures were in place. Continue reading “Access to Adequate Medical Treatment for Vulnerable Asylum Seekers in Direct Provision”

Access to Adequate Medical Treatment for Vulnerable Asylum Seekers in Direct Provision

Direct Provision: A Challenge to Law, A Challenge to Rights

Direct ProvisionOn February 28 2014, UCD Human Rights Network hosted a seminar, Direct Provision: A Challenge to Law, A Challenge to Rights.  Senator Jillian van Turnhout discussed, amongst other things, political engagement with the direct provision system. Kirsty Linkin, Law Centre (NI) discussed the impact of the Northern Ireland case, ALJ v Secretary of State for the Home Department (summary of this case here). You can access Kirsty’s slides here: Law Centre (NI) Direct Provision & the ALJ Case in Northern Ireland . Sue Conlan, from the Irish Refugee Council, examined the system of direct provision, with specific reference to framing an alternative to direct provision

I spoke on the use of law to challenge direct provision. My speaking notes for this are below. My slides can be accessed here: Using Law to Challenge Direct Provision.

Firstly, in addition to Prof Colin Scott’s and Senator Jillian van Turnhout’s welcome, can I welcome you to UCD School of Law. I am delighted to see so many of you at this UCD Human Rights Network seminar.

In the next 15 minutes, I will very briefly outline the system of direct provision and highlight the key problematic issues with direct provision, including legality, impact on individuals, children and families.

I will then turn to consider why I believe that law must be used to challenge direct provision, and offer some comments on how Irish, European and International law can assist in undermining the direct provision system.

I will then offer some concluding thoughts.

Direct provision will be 14 years of age on 01 April 2014. Direct Provision has survived a massive economic boom and an enormous economic bust. It has survived moments of significant and deep reflection by the Irish political establishment and Irish society as a whole on how, in decades passed, on the rights of children and societal treatment of women and men in industrial schools, Magdalenes laundries, mental hospitals, borstals and so on. Yet, direct provision remains in place.  Society’s capacity to look the other way, to not question or to show scant disregard for the rights of others remains.

For those not familiar with the system, this is an outline of the key attributes of direct provision

Asylum seekers are dispersed to privately run accommodation centres, on a bed and board basis, operated by the Reception and Integration Agency. There is no entitlement to any other welfare payment, bar the direct provision allowance payment of €19.10 per week per adult or €9.60 per week per child.

There is no right to work, on pain of criminal conviction; although asylum seekers are provided with medical cards and education up to leaving certificate (for those below a certain age). Direct provision is not compulsory, and a large minority of asylum seekers do not utilise direct provision.

Lets take a look at some statistics now. By December 2000, some 8 months into operation, there were 3,077 asylum seekers in direct provision. This, as we can see from the next slide, was from a total number of asylum applicants reaching in or about 10,000.  The numbers rose of just over 4,100 in 2001, before falling, and continuing to fall until from 2005-2009, the numbers in direct provision increased, while, at the same time, the numbers seeking asylum fell dramatically. In 2009, over 6000 people were resident in direct provision. At the end of December 2013, almost 4,500 people were in direct provision. Continue reading “Direct Provision: A Challenge to Law, A Challenge to Rights”

Direct Provision: A Challenge to Law, A Challenge to Rights

Ireland and the European Committee on Social Rights

ESCThere has been much focus on the role of the European Court of Human Rights over the last number of days (see, here and here). A less well known body, the European Committee on Social Rights, is responsible for assessing Ireland’s compliance with the European Social Charter (Revised). The European Social Charter protects a number of social and economic rights, such as employment rights, right to health care, social security, an adequate standard of living etc. Ireland has freely accepted to abide by a large number of obligations (but not all) under the European Social Charter. As my summary of the Committee’s conclusions below show, this report is somewhat of a mixed bag. It is important to note that the  Committee on Social Rights examined Ireland’s compliance with the European Social Charter from 2008 to 2011, so a number of important issues that arose since 2011 are not considered, including the attacks on youth right to full rate unemployment benefit/assistance; maternity benefit cuts; the cumulative impact of successive regressive budgets on those who are already poor and marginalised. In addition, it was somewhat disappointing that the Committee did not mention or consider the social and economic rights of asylum seekers (as it has done in collective complaints).

The European Committee on Social Rights has released its Conclusions on Ireland for 2013 on a number of different rights protected by the European Social Charter, including:

Ireland and the European Committee on Social Rights

Law, Dignity & Socio-Economic Rights: The Case of Asylum Seekers in Europe

EuropeBelow are my speaking notes for the  European Database on Asylum Law (EDAL) conference, Reflections on the Current Application of the EU Asylum Acquis. My full paper can be accessed here: “Law, Dignity & Socio-Economic Rights: The Case of Asylum Seekers in Europe“. My very brief slides  for this presentation are available here:  Law Dignity & SER Asylum Seekers.

The treatment of aliens…has become a defining challenge to an important aspect of the moral identity of the emerging European polity and the process of European integration.[1]

Introduction 

First of all, I would like to express my gratitude to Aoife and all at the European Database of Asylum Law for this invite, and congratulate EDAL and the Irish Refugee Council for such a stimulating and challenging conference over the last two days. All I can do over the next 15 or so minutes is present to you a skeleton of my arguments, as regards the protection of the socio-economic rights of asylum seekers.  The full  paper is available here:  Law, Dignity and Socio-Economic Rights: The Case of Asylum Seekers in Europe.

Definitions 

My use of the terms ‘asylum seeker’ and socio-economic rights are deliberate. The phrase asylum seeker, properly communicates the process of fleeing for protection, but awaiting determination of the protection application within the receiving state. This includes application for recognition of refugee, subsidiary protection or other human rights protection status. The phrase socio-economic rights includes those human rights protected under international and European human rights law, that recognises the right to social security; right to work; right to an adequate standard of living; right to education; right to shelter etc. I shy away from the language of ‘reception conditions’, I feel that language seeks to separate ‘us’ and ‘them’ and seeks to make it seem wholly natural and automatic that fundamental social rights be differentiated on the basis of legal status.

The Core Argument 

Now that we have definitions out of the way, the key argument of my paper is this: In spite of the plurality of legal regimes that protect, to some extent the socio-economic rights of asylum seekers, the end result of this legal plurality, has been to deny asylum seekers access to mainstream social supports that are considered fundamental to ensuring all those within a state can enjoy a minimum, if basic, standard of living.

WE might disagree as to whether citizenship or nationality or residence should form a coherent basis for distinguishing socio-economic rights between asylum seekers or citizens or other residents. However, international and European human rights law has not yet been so definitive, despite the exhaustive plurality of legal measures. In fact, as I will seek to now trace: the status of asylum seeker still seems to permit fundamental differentiation between asylum seekers and say citizens or residents. So, asylum seekers DO NOT under international and European human rights law enjoy all the rights that citizens or permitted residents in a State enjoy. However, given the cosmopolitan promise of human rights, contestations exist in this area, and the issue is not overly clear cut.

Legal Plurality & the Socio-Economic Rights of Asylum Seekers 

International human rights law: While human rights seek to protect the weak, marginalised and vulnerable, there is often a presupposition amongst Continue reading “Law, Dignity & Socio-Economic Rights: The Case of Asylum Seekers in Europe”

Law, Dignity & Socio-Economic Rights: The Case of Asylum Seekers in Europe

International Human Rights Day 2013: Placing the Spotlight on Direct Provision

DP End Institutionalised LivingToday is International Human Rights Day 2013. This year, the theme is one of reflection on twenty years of the Vienna Declaration and Programme of Action on Human Rights. The Vienna Declaration emphasised the indivisibility and interconnectedness of all human rights protections. The Office of the UN High Commissioner for Human Rights is emphasising the human rights achievements over the last two decades. Indeed, the achievements of Ireland in the protection of human rights over the last twenty years should be commended in a host of areas: free speech, LGBT rights, placing refugee status determination on a statutory footing; further attempts to protect socio-economic rights; establishing a national human rights institution and providing some domestic effect to the European Convention on Human Rights (amongst a select few achievements).  This is not to say that Ireland is fully complying with its international or European human rights obligations in all these areas, but things have significantly progressed in the last two decades.  One issue that has emerged in the last 20 years however, has been how Ireland treats those who claim asylum in this State.

The modalities of direct provision were communicated to various government departments on international human rights day in December 1999. Fourteen years later, the Irish Refugee Council is today highlighting alternatives to the system of direct provision. The urgency for a different approach and a new way forward is further evidenced by yesterday’s reports from Dr Joan Giller in West Cork of the tremendous damage that the system of direct provision is causing.

In a new report the Irish Refugee Council is seeking to add to the debate on alternatives to the direct provision system.  Today, they have launched their new report, Direct Provision: Framing an Alternative Reception System for People Seeking International Protection. The Irish Refugee Council make it very clear, that not all the proposals contained are definitive nor is the report exhaustive, but the purpose of this very timely report is to start the debate on alternatives to the system of direct provision. While recognising the need for a transition to new arrangements, the Irish Refugee Council’s proposals include:

  • A single protection procedure be introduced as soon as possible in 2014 in order that the aim of processing the majority of new asylum claims within six months can be achieved. Asylum seekers be granted early legal advice when dealing with their asylum claim.
  • The weekly allowance currently paid to asylum seekers be increased in line with the increases in social welfare since 2001.
  • Restoration of universal child benefit for the children of asylum seekers.
  • Stays in reception centres be limited to 6 months, and such accommodation respects family life and the best interests of the child. There should be an independent complaints and inspection mechanisms.
  • A system be introduced to identify particularly vulnerable asylum seekers;
  • After six months in a reception centre, an asylum seeker be granted the right to work and the right to access the private rental market. Access to rent supplement/supplementary welfare allowance to be made on basis of satisfying means test already established.

It remains to be seen, whether this time next year, there will be progress towards dismantling the current direct provision system.

 

International Human Rights Day 2013: Placing the Spotlight on Direct Provision

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

Political Responses to Asylum Seekers and the Australian General Election

OZ flagHuman Rights in Ireland welcomes this guest post from Siobhan Drislane. Siobhan previously worked in the Law Reform Commission and is currently based in Western Australia. She is a graduate of University College Cork (BCL and LLM). Siobhan is currently based in western Australian, working as a Project Coordinator in the non for profit sector.

With just days to go until the Australian General Election on 7th September 2013, discussion of the big issues and policies are of course now well underway. One of these major issues is that of illegal maritime arrivals (IMA’s), or more colloquially known as “boat people” arrivals.

The term “boat people” is concerning in itself as it tends to dehumanise the individuals it relates to, as well as their plights. By focusing on the vessel and the method of arrival to Australian waters the term effectively fails to acknowledge individuals as asylum seekers in need of assistance. Nonetheless, the phrase is  well-established,  used by Government, politicians, media and the general population alike and is used and understood to be a descriptive term rather than an offensive one. The Parliament of Australia explains that the term originated in the 1970’s in relation to people seeking asylum arriving by from Vietnam following the Vietnam war.

The following decades, and most notably from 1999 to the present time, have seen fluctuations in the number of boat arrivals carrying asylum seekers. 1999, 2000 and 2001 inclusive saw peaks of 3,721, 2,938 and 5,526 of IMA’s respectively. The period from 2002 – 2008 inclusive saw numbers of IMA’s less than 200, and sometimes even less than 100, in a given year. Subsequent to this numbers have steadily increased – with 2,850 arrivals in 2009, 6,850 in 2010, 4,733 in 2011 and 7,120 up to the 31st July 2012.  Three factors relative to these variations include world events (such as wars in Iraq and Afghanistan), Government policies and, perhaps more recently identified as a real factor, the role of people smugglers who charge individuals large sums of money to carry them to Australia with the promise of starting a new life there.

As the election approaches political policy on the issue of asylum seekers arriving by boat is a hot topic. Both the Labour Party, who sit as current Government (and have done since December 2007), and the opposition Liberal Party have taken a strong stance on the issue in setting out their policies for the electorate. To a certain extent both could also be accused of using the ‘boat people’ as pawns in their election campaigns. But before commenting on the current campaign positions, let us first briefly note past policies which have existed throughout the period from 1999 to 2013.

John Howard sat as Prime Minister and leader of the Liberal Party from March 1996 to December 2007. The Howard Government took a strict position on the issue of illegal maritime arrivals, and this is notably reflected in the low number of arrivals from 2001 to 2007. The Howard Government continued to support the mandatory detention of unauthorised arrivals policy which had been established by the Keating Government in 1992 (prior to 1992 detention of authorised arrivals was a matter of discretion under the Migration Act 1958); Continue reading “Political Responses to Asylum Seekers and the Australian General Election”

Political Responses to Asylum Seekers and the Australian General Election