Conference: Beyond the Single Procedure: Reforming Ireland’s Protection System

NASCNasc, the Irish Immigrant Support Centre and  UCD’s Sutherland School of Law invite you to a one day conference to mark World Refugee Day on the 20th June 2014 in UCD’s William Fry Theatre from 10 am – 3pm. The conference, titled Beyond the Single Procedure: Reforming Ireland’s Protection System.

This conference is an opportunity to bring together politicians and policymakers, practitioners, advocates and other interested parties to discuss and critically assess the protection system in Ireland, the pending introduction of the Single Procedure, how it will impact the protection system in Ireland and what legacy issues will remain.

Some of the issues to be addressed include: international best practice, leave to land, early legal intervention, the legacy of direct provision, subsidiary protection, unaccompanied minors, family reunification of refugees, and the Judicial Review process.  The conference is very timely as the discussions generated could potentially inform thinking on the upcoming Immigration, Residency and Protection Bill.

Confirmed list of speakers:

Sophie Magennis, UNHCR – morning keynote: overview of protection, role of UNHCR

Liam Thornton, UCD – direct provision

Olaniyi Kolawole, UCC – human cost of protection system

Patricia Brazil, BL & Trinity College Dublin– history of protection system, JRs, legacy issues

Colm O’Dwyer, BL – separated children

Jacqueline Kelly, Irish Refugee Council – early legal intervention

Claire Cumiskey, Nasc – family reunification

Barry Magee, Refugee Appeals Tribunal – on role of RAT

Karen Berkeley, Brophy Solicitors – on statelessness

Clare Kelly, Legal Aid Board

Steven McQuitty, BL (NI) – afternoon keynote, on JLM case and NI/UK perspective

 

Registration

To attend this conference, please email Bethany Wynee-Morgan on bethany@nascireland.org. Please note that there is no charge for this event. CPD points are available from UCD Sutherland School of Law.

Further details available here. You can download the conference poster for this event here.

Conference: Beyond the Single Procedure: Reforming Ireland’s Protection System

New Publication: #DirectProvision14 No Place to Call Home

Direct ProvisionFollowing on from Human Rights in Ireland’s marking of 14 Years of Direct Provision in Ireland (see all posts here), along with Caroline Reid from the Irish Refugee Council, a publication marking this event has now been produced. Once again, my thanks to all those who contributed blog posts, in particular asylum seekers who spoke of the inhuman and degrading nature of  the direct provision system. The publication includes a foreword and a timeline of 14 years of direct provision in Ireland.

You can download this publication here: C. Reid & L. Thornton eds. 2014 Direct Provision at 14 No Place to Call Home (or access an online copy here).

Foreword #DirectProvision14: No Place to Call Home

There has been a lack of considered reflection on the rationale for the introduction of separate and isolated welfare reception regimes for asylum seekers within Ireland. The welfare/justice state has become an institution of control, punishment, deprivation and humiliation for those seeking protection within Ireland. Social policies directed towards asylum and protection seekers are marked by tendencies towards social control, debasement and enforced poverty. These policies trump key international and national human rights protections within the socio-economic rights arena. The “reception conditions” in place in Ireland for asylum seekers, are used as a means of deterring protection applications, while also having a punitive effect on those who have claimed refugee or subsidiary protection, as they are prevented from working, while forced to endure a lower standard of living than those entitled to the lowest welfare benefit. While the culture of control has enveloped political and public reactions to crime and welfare in late modernity,[1] a culture of immigration control has permitted the creation of new state asylum-welfarist institutions solely targeted at asylum and protection seekers.

The Irish welfare state is a multifaceted institution, dedicated to minimum and basic provision of resources and to providing a modicum of support for those in need.[2] Welfare rights were (and to a great extent, still are) viewed as being interlinked with an individual’s status as a citizen or preferred resident within Ireland and the UK.[3] A key theme of welfare state theory is how democratic-welfare-capitalist societies are disciplinarian and controlling.[4] Those arriving to seek refugee or subsidiary protection can be viewed as a threat to the functioning of the welfare state as they are neither citizens nor preferred residents.[5] The creation of direct provision is simply yet another reactionary attack on the very existence of the Irish welfare state. Surveillance as a mode of ‘governmentality’[6] is evident.[7] Direct provision and the Reception and Integration Agency have developed hierarchical and permanent surveillance methodologies to discipline and contain those deemed problematic in Irish society-asylum seekers.[8] The linkage between welfare and citizenship or belonging to a nation, mark out those seeking asylum or protection, as prime targets for more limited social service and care provision.[9]

The “bogus myth of welfare scrounging”[10] has polluted contemporary immigration and asylum debates. A number of indices of control have emerged including: re-configuring asylum law and policy; the assertion of state power and control over aspects of the asylum seeker life within Ireland; refusal of the right to work and enforced state provision for basic needs; unique and distinct management within a separated welfare system known as ‘direct provision’; welfare provision below that provided to citizens or preferred residents within Ireland and rejection of rights claims for equal provision of welfare on the basis of differentiation of entitlement; the use  ministerial circulars in Ireland to deny the socio-economic rights of asylum seekers, ably assisted by a weak Parliament and minimal protection from courts.

The blog posts below are a testament to the continuing concerns with the system of direct provision in Ireland. Asylum seekers, artists, public representatives, policy makers and academics have for some time highlighted the punitive and impoverishing nature of the system of direct provision. For over 14 years, concerns have been raised on the impact of institutionalised living on asylum seekers in direct provision. To date, these concerns have been dismissed or simply unheard. The timeline after these blog posts, will give readers a flavour of how the system of direct provision came about, and the constant concerns expressed about such a punitive system.

Liam Thornton

May 2014



[1] See generally, Garland, D. The Culture of Control: Crime and Social Order in Contemporary Society (Oxford; OUP, 2001).

[2] For a general overview of Irish social security and social assistance law, see Cousins, M. Explaining the Irish Welfare state: A Historical, Comparative and Political Analysis (Dublin: Edwin Mellen Press, 2005); McCashin, A. Social Security in Ireland (Dublin: Gill & Macmillan, 2004); Cousins, M. Social Welfare Law (Dublin: Thomson Roundhall, 2002). For a general overview of UK law and social welfare policy, see Jones, K. The Making of Social Policy in Britain: From the Poor Law to New Labour (London: Athlone Press, 2000), Dean, H. Welfare Rights and Social Policy (London: Pearson, 2002) and Harris, N. (ed.) Social Security Law in Context (London: OUP, 2000).

[3] Marshall T.H. & Bottomore, T. Citizenship and Social Class (London: Pluto Press, 1992), p. 28. For Ireland, see also, Department of Social, Community and Family Affairs, Building an Inclusive Society (Dublin: Department of Social, Community and Family Affairs, 2002), p. 20.

[4] Dean, H. Welfare Rights and Social Policy (London, Pearson, 2002) at p. 66. See also, Larkin, P.M. “The ‘Criminalization’ of Social Security Law: Towards a Punitive Welfare State?” (2007) 34(3) Journal of Law and Society 295 and McKeever, G. “Social Security as a Criminal Sanction” (2004) 26(1) Journal of Social Welfare and Family Law 1.

[5] Bommes, M. & Geddis, A. Immigration & Welfare: Challenging the Borders of the Welfare State (London: Routledge, 2000), p. 1

[6] Foucault, M. “Governmentality” in Burchell, G. Gordan, P. and Miller P. (eds) The Foucault Effect: Studies in Governmentality (Hemel Hempstead: Harvester, 1991), pp. 85-104.

[7] Foucault, M. Discipline and Punish: The Birth of the Prison (New York: Penguin, 1977).

[8] See above,  pp. 1958-2001.

[9] See, Cole, D. “Their Liberties, Our Securities: Democracy and Double Standards” (2002) 54 Stanford Law Review 953 at p. 957.

[10] Geddes, A. “Denying Access and Welfare Benefits in the UK” in Bommes, M. & Geddis, A. Immigration & Welfare: Challenging the Borders of the Welfare State (London: Routledge, 2000), p. 139.

 

New Publication: #DirectProvision14 No Place to Call Home

Developments in Australia’s Response to Asylum Seekers: Post 2013 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 not for profit sector. This post is a follow up from Siobhan’s earlier post in September 2013.

The result of the Australian Federal election on 7th September 2013 saw the Liberal Party elected as Government, and the party’s leader Tony Abbott take on the role of Prime Minister, to oust the Labour Party who had been in power since 2007. In the lead up to the election the Liberal Party had taken a strong stance on a number of issues, including the matter of asylum seekers arriving to Australia by boat. The party promised that, if elected, they would reform the ‘boat people’ policy amongst others within 100 days The Abbott Government was sworn in on the 18th September 2013 (and so the self-imposed 100 day deadline would come about on the 27th December 2013). That same day ‘Operation Sovereign Borders’ (OSB) became active. Committed to their promise that change would come about within just over 3 months, the Liberal Party commenced their ‘battle’ immediately.

The concept of ‘battle’ has been core to the current Government’s attitude to the arrival of unauthorised boats carrying intended asylum seekers. As noted in this earlier piece in the run up to the Federal election the Liberal Party equated the arrival of boat people to an attack requiring “the discipline and focus of a targeted military operation”. Thus, concurrent to the commencement of OSB, the Government established a joint task force involving the Australian Defence Forces, Customs and Border Protection, and the Department of Immigration to oversee its activity. Subsequently, in October 2013 the Minister for Immigration, Scott Morrison, announced that the phrase ‘Irregular Maritime Arrivals’ which had been used by the previous Labour Government was to be replaced with the term ‘Illegal Maritime Arrivals’. This re-labelling exercise also saw the term ‘clients’ in relation to asylum seekers being held in processing detention centres being traded in favour of ‘detainees’. Reactions from the media and Human Rights groups pointed out that there is nothing illegal about seeking asylum, and that the changed IMA definition was unacceptable. Nonetheless the Government maintained its support for the term, with the Minister responding that there would be no apologies for not using politically correct language, and that in any event the term was intended to refer to the mode of transport rather than to the individuals concerned. The Abbott Government did, however, continue the trend of its predecessor by involving other States in its bid to protect Australian borders. Reliance on offshore processing at centres in Papua New Guinea has been ongoing, while in November it was announced that Sri Lanka would be gifted 2 retired Australian patrol boats to assist with preventing unauthorised boats from getting to Australia.

Notably relations with Australia’s closest ally in the ‘battle against the boats’, Indonesia, were considerably damaged following reports on 18th November 2013 that Indonesia’s President, Susilo BambangYudhoyono, had discovered that personal phones belonging to him, his wife, and senior figures within his inner circle had been tapped by Australia in 2009. Indonesia’s demand for an apology in relation to the intrusion was met with a response from Prime Minister Tony Abbot that he was sorry for the embarrassment caused to the President by the media reports, but ultimately he failed to apologise for the act and indicated that it was a norm for Governments to undertake intelligence operations to protect State and citizens. Continue reading “Developments in Australia’s Response to Asylum Seekers: Post 2013 Election”

Developments in Australia’s Response to Asylum Seekers: Post 2013 Election

The Ombudsman and Direct Provision

EmilyYesterday, the Ombudsman, Emily O’Reilly launched a well reasoned critique of the direct provision system (news coverage here and all Human Rights in Ireland’s posts on direct provision here ). This follows on from Ombudsman O’Reilly’s  most recent investigation relating to an asylum seeker refused a social welfare payment that she was entitled to.While the Ombudsman is prevented from investigating maladministration in immigration and naturalisation issues, so the Irish Nationality and Immigration Service is beyond its supervisory powers, the governmental departments responsible for the direct provision system are not. These include the Department of Justice and Equality, through the provision of accommodation via the Reception and Integration Agency and the Department of Social Protection , through making direct provision allowance payment of €19.10 per week per adult and €9.60 per week per child._Although as I have noted on a number of occasions, the Department is prohibited from making this payment by virtue of Irish social welfare law.

The reliance on administrative system of direct provision that actively undermined statutory rights for a significant period between 2000-2009 shows how easily legal rights, in particular legislative rights under social welfare law, can be  placed at naught through:

  1. A Parliament subservient to the Executive,
  2. An Executive intent on impoverishing an unpopular group in society,
  3. Public disinterest in the rights of asylum seekers and/or an active hostility towards those claiming asylum;
  4. Those administering the social welfare system allowing their discretion to be fettered by government circulars (and ignoring law) ;
  5. Courts that are wary of impinging or in any way recognising rights of life, bodily integrity, and  family rights as including any form of social and economic protections.

Despite a steady stream of Parliamentary questions on the system of direct provision in the last number of weeks, there seems to be no appetite for reform in Government. Although Emily O’Reilly will be setting off to Europe shortly, it would be hoped that the interest of the Ombudsman’s office on the issue of direct provision will continue.

The Ombudsman and Direct Provision

Edward Snowden, Asylum & Ireland

Snowdon picIt has been reported in the media this morning that Edward Snowden has “applied for” asylum in Ireland, along with applications to 19 other countries (see here, here, here and here). However, as is clear from a reading of the Refugee Act 1996 (as amended), Mr Snowden has not made any such application for asylum in Ireland. Leaving aside the issue of whether Snowden qualifies as a person in need of refugee or subsidiary protection, to apply for asylum in Ireland, Section 8(1) of the 1996 Act states:

A person who arrives at the frontiers of the State seeking asylum in the State or seeking the protection of the State against persecution or requesting not to be returned or removed to a particular country…. [emphasis added]

As Snowden has not arrived at the frontiers of the State, he is unable to make an application for asylum/protection in Ireland.  Unlike Ecuador, an individual cannot make an asylum claim at an Irish embassy (be it in Russia or elsewhere). If Snowden was to (somehow!) make it to Ireland and made an application for refugee or subsidiary protection at the frontiers of the State, the United States has not been designated a safe country of origin, so Mr Snowden’s asylum and/or subsidiary protection claim would have to be dealt with under the legal framework of the 1996 Act and 2006 Regulations. Given the low rate of acceptance of refugee and subsidiary protection claims in Ireland, as well as the direct provision system in place, Mr Snowden might want to think twice about making any such journey to Ireland.

 Update 16:35pm 20/07/2013: The Taoiseach (Irish Prime Minister) confirms that applications for asylum cannot be made outside of Ireland. However, the Taoiseach also stated that if Snowden did apply for asylum in Ireland, it would be dealt with under Irish law.

 

Edward Snowden, Asylum & Ireland

Challenging Illegality: Direct Provision, Social Welfare Law & Asylum Seekers in Ireland

Houses of OireachtasThe Office of the Ombudsman has recently played a significant role in highlighting  maladministration in the operation of our social welfare legal code, in particular in relation to  supplementary welfare allowance and direct provision for asylum seekers over the last few days.

Supplementary Welfare Allowance and Direct Provision

The Ombudsman has release her report, Appeal Overruled: A failure to provide basic income for a family seeking asylum This report related to the refusal of a Superintendent Community Welfare Officer to implement in full a decision of an Appeals Officer that an asylum seeker was entitled to the full rate of supplementary welfare allowance, a basic income paid to all whose means do not meet their needs. The complainant arrived in Ireland prior to 2009 so was not excluded, as such, from receiving supplementary welfare allowance, however was placed within the direct provision system (see here for extensive evaluations of the direct provision system). The complainant left for very serious personal and health reasons. Despite decisions of social welfare Appeals Officers being “final and conclusive“, the decision was not implemented for 13 months and the Superintendent CWO decided, without ever putting this issue to the complainant, that she was not habitually resident. The actions of the Superintendent CWO, seeking to undermine the decision of an Appeals Officer and making unwarranted assumptions about the ‘high quality’ of the direct provision accommodation that the complainant left (after a suicide attempt by her daughter) came in for particular criticism from the Ombudsman.  It also should be noted that the actions of other employees of the HSE, social workers and Child and Adolescent Mental Health Service, were praised for their actions. The decision of the Superintendent CWO to refuse to abide by the decision of the Appeals Officer was “incorrect and without justification”. The Ombudsman recommended that a consolatory (time and trouble) payment of €3,000 be made to the complainant due to the actions of the HSE and noted the severe impact that the non-payment of supplementary welfare allowance had had for this complainant and her family. In concluding her analysis, the Ombudsman noted:

….[I]n finalising this report, the Ombudsman has been aware of the significant and growing public unease regarding the arrangements for asylum seekers in this country. More and more questions are being raised now about the appropriateness of  the ‘Direct Provision’ arrangements particularly as they impact on family life, on mental health and on the welfare of children. However the Ombudsman, on the basis of one investigation cannot purport to make a finding on this general issue.

 

Towards Legality in Direct Provision

Asylum seekers have been excluded (since the Social Welfare and Pensions (No. 2) Act 2009) from receiving supplementary welfare allowance. When direct provision was introduced, it was purportedly done under the supplementary welfare allowance scheme (see the  Free Legal Advice Centre‘s extensive work on this issue here and my 2007 article on direct provision here ), with accommodation and food in kind, and a small allowance to make up the total maximum payment that can be made under the supplementary welfare allowance scheme. I would argue that since 2009, whereby asylum seekers are now absolutely prohibited from receiving supplementary welfare allowance, there is no legal basis for the Department of Social Protection to continue to make the small monetary payment of €19.10 per week per adult and €19.10 per week per child.   In recent weeks, Senator Jillian van Turnhout and Derek Nolan TD have raised the issue of direct provision in the Oireachtas. Senator van Turnhout asked the Minister for Justice what the legislative basis for the payment of €19.10 per week is, given that the 2009 Act excludes asylum seekers from receiving supplementary welfare allowance.  The Minister for Health (standing in for the Minister for Justice) stated that direct provision was merely an administrative scheme for which there was no need to have any legislative basis . The Minister for Health noted that:

…flexibility and adaptability of the direct provision system would not be assisted but, possibly, hindered by specific legislation underpinning it.

In response to Derek Nolan’s question, the Minister for Social Protection, Joan Burton TD stated:

Following the introduction of the statutory habitual residence condition in May 2004 and subsequent legislation, asylum seekers are not entitled to receive most social welfare payments. The payment of the weekly direct provision allowance is made on an administrative basis by this Department on behalf of the Department of Justice and Equality.

So the core argument emerging from government ministers, is that direct provision payment is a wholly administrative scheme  unrelated to legislative provision of supplementary welfare allowance.  Successive Ministers for Social Protection have stated that the €19.10 per week per adult/€9.60 per week per child, is a supplementary welfare allowance payment (see here and here).

In addition, Article 35 of the Social Welfare (Consolidated Supplementary Welfare Allowance)Regulations 2007 headed ‘Non-Cash Benefits’ states that where asylum seekers made an application for supplementary welfare allowance (prior to the 2009 Act) the following would be excluded:

 …the net cash value to the person of meals, accommodation and related services provided under a scheme administered by the Department of Justice, Equality and Law Reform and known as direct provision, where the costs are met in full by the State.

The approach of successive governments towards direct provision and their failure to grasp the issue by the neck, now means that at the very least, the Department of Social Protection are acting outside its powers and contrary to the Social Welfare and Pensions Act 2009 by providing the €19.10 per week to asylum seekers (regardless of whoever the Department of Social Protection believes it is acting for). The approach of the current government, in seeking not to provide a legislative basis for direct provision accommodation and direct provision payment, is part of an overarching strategy since the introduction of direct provision to ensure that asylum seekers in Ireland lack the most basic of rights. While government ministers correctly point out that we have international obligations to ensure that asylum seekers are not destitute while their protection claims are being assessed, this must be done so in a manner that complies with Irish social welfare law. There is an urgent need to ensure that if the government is to continue to utilise the system of direct provision to meet our international obligations, clear legislation is introduced that sets down the right of asylum seekers to access direct provision. It is hoped that it will not take a full investigation by the Ombudsman to highlight to government the totally unsatisfactory nature of the administrative-legal regime that governs direct provision.

Challenging Illegality: Direct Provision, Social Welfare Law & Asylum Seekers in Ireland

Aftercare and Asylum: Who is Responsible for Separated Children?

Human Rights in Ireland welcomes this guest post from Samantha Arnold. Samantha is the Children’s and Young Persons’ Office at the Irish Refugee Council.  She is the manager of the Independent Advocacy Pilot, a pilot that provides one-to-one support for separated children seeking asylum.  Click here to get involved or to attend an upcoming charity gig at the Village on 6th April.

Yesterday, 3 April 2013, Barnardos and the HSE launched research undertaken by Dr Muireann Ní Raghallaigh which looked to review and reflect on separated children in foster care and supported lodgings.  It is a welcomed report as it is the first of its kind reviewing a system that has been in place for just over 2 years.

Until the end of 2010, Separated children, or children who are outside of their country of origin and separated from their parents or guardians, were housed in large hostels.  The hostels were largely unsupervised and often children went missing, still to be untraced. Presently, however, the HSE works to ensure that separated children are placed in a foster family or supported lodgings arrangement as soon as possible.  This policy, titled ‘Equity of Care’, was established in response to widespread outcry over the way children were accommodated in the hostels prior to their closure in December 2010.  Under this new regime, the HSE works to provide separated children with care on a par with the wider care population made up of predominately Irish children.
In her report, ‘Foster Care and Supported Continue reading “Aftercare and Asylum: Who is Responsible for Separated Children?”

Aftercare and Asylum: Who is Responsible for Separated Children?

The Direct Provision System: The Time for Change is Now

Over recent weeks, the issue of direct provision has been raised on several occasions within and outside the Irish Parliament (see here, here and here). Breda O’Brien’s excellent article in Saturday’s Irish Times and a letter by a practicing Cork based GP in today’s Irish Times add further weight to the calls (since 2001) for a fundamental reform of this punitive and penal system. A system that indefinitely denies a right to work no matter how long it takes to take a decision on  a refugee/subsidiary protection/leave to remain claim and forces some asylum seekers into communal living for years on end is not fit for purpose.

The Minister for Justice, Alan Shatter TD and the Secretary General of the Department of Justice (pp. 9-11, p. 13) have defended the system on the basis of a 2010 Value for Money Report. This report is deeply flawed for a number of reasons:

  1. The only people responsible for drafting the report were officials from government departments. There were no representatives from those living in direct provision or of any civil society organisations who seek to represent the interests of asylum seekers;
  2. It was presumed (totally unreasonably) Continue reading “The Direct Provision System: The Time for Change is Now”
The Direct Provision System: The Time for Change is Now

The ECJ on Aslyum, Greece & the UK Protocol on the EU Charter

Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD (C-411/10) must be a contender for the title. The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law. Continue reading “The ECJ on Aslyum, Greece & the UK Protocol on the EU Charter”

The ECJ on Aslyum, Greece & the UK Protocol on the EU Charter