Understanding the Increases in Direct Provision Allowance for Asylum Seekers

END DPFrom August 2017, asylum seekers in Ireland will receive increases to the direct provision allowance payments. For adults, this is the first increase to direct provision allowance in 17 years. For children, this is the second increase in direct provision allowance since 2000. Adult asylum seekers and child asylum seekers will now receive €21.60 per week, an increase of €2.50 for adults, and an increase of €6 for children.

In June 2017, I submitted a Freedom of Information (FOI) request to the Department of Social Protection seeking to understand what the rationale for these small increases were. The Department’s response to the FOI request, provides some further understanding as to why the the child direct provision allowances were equalised, however the documentation received fails to provide a clear rationale for the increases in adult direct provision allowances.

Before getting to the most relevant documents, it is important to note that the McMahon Report on direct provision made very few unqualified recommendations: but did in an unequivocal manner recommend that adult asylum seekers be provided with an allowance of €38.74 per week, and children with an allowance of €29.80 per week in June 2015. The increases in direct provision allowance fall far short of this recommendation. (I should acknowledge my significant concerns regarding the McMahon Report and its recommendations from a human rights perspective. See Subprime for excellent analysis on the McMahon Report and its impact. See also Doras Luimni’s analysis of improvements with the direct provision system). In July 2017, the Department of Justice has claimed in its final progress report on the McMahon Recommendations that 98% of all the recommendations from the McMahon report have been implemented, or are in the process of being implemented. Some questions have been raised by NASC in relation to the Department of Justice claims on their 2nd progress report (which stated 92% of all recommendations implemented). Focusing solely on direct provision payment, calculations by Department of Social Protection on 08 June 2017, noted that the cost of implementing the McMahon direct provision increases would be under €3.7 million per year [See document [1] here]. Continue reading “Understanding the Increases in Direct Provision Allowance for Asylum Seekers”

Understanding the Increases in Direct Provision Allowance for Asylum Seekers

Direct Provision in the Irish High Court: The Decision

Four CourtsThis post summarises some of the main grounds of challenge to the direct provision system in the case and the findings of Mr Justice Colm Mac Eochaidh only. I hope to be able to do an analysis of this decision in the coming weeks. This is a longer post than usual, and for ease of reading, a PDF of this post can be accessed here.

Mr Justice Colm Mac Eochaidh delivered his decision in the case of C.A. and T.A v The Minister for Justice and others on Friday, 14 November 2014. This (rather long) post, sets out the facts of this judicial review and the decision of Mac Eochaidh J. on the argued grounds. This summary is based on Mr Justice Mac Eochaidh’s unapproved decision, and the approved judgment will be available from the Courts Service soon.

Facts

C.A. is a national of Uganda and a young mother. C.A. claimed refugee status in Ireland in April 2010. C.A. made an application for refugee status but this was initially rejected by the Office of the Refugee Applications Commissioner. The Refugee Appeals Tribunal also found that C.A. did not meet the definition of refugee for the purposes of the Refugee Act 1996 (as amended) in October 2011.  These decisions were not judicially reviewed by C.A. In December 2011, C.A. made a claim for subsidiary protection. This claim has yet to be determined. [The reason for the delay relates to a separate legal challenge by another subsidiary protection applicant, that successfully led to significant changes in the determination of subsidiary protection claims]. C.A. has resided in direct provision accommodation centre in Galway since June 2010. C.A.’s son, T.A., was born in January 2011 and has resided in direct provision accommodation and was also challenging the system of direct provision on a number of grounds.

 

The Decision of Mac Eochaidh J.

 The Successful Grounds of Challenge

 

The High Court was invited to consider whether the Reception and Integration Agency’s House Rules in Direct Provision violate Article 8 ECHR (the right to private, family life and the protection of the home). While accepting that the Article 8 ECHR is not absolute, MacEochaidh J. held that the elements of the House Rules outlined below were unlawful.

  • Unannounced room inspections: While RIA are entitled to inspect rooms, the overarching manner and unannounced nature of the inspections was not proportionate.
  • Monitoring of presence & Requirement to Notify intended Absences: The objective of having daily sign in so as to ensure capacity management at direct provision centres is lawful. However, this objective could “easily be achieved” (para. 8.10) in a less restrictive manner. Requiring somebody to sign-in to their home on a daily basis is disproportionate. This analysis also meant that the notification of intended absence from one’s home, was also disproportionate.
  • Rules against having guests in bedrooms: The outright ban (emphasis added) on person’s having guests in their home was a disproportionate interference with constitutional rights and rights under the ECHR.

The High Court determined that the bedroom of the applicants was their home, and protected by Article 40.5 of the Constitution and Article 8 ECHR.

  • Complaints Handling Process

The applicant’s are entitled to have an independent complaints handling procedure. Regardless of whether the applicant has had cause to use this (which to date C.A had not). RIA is the author of the House Rules and is in a commercial relationship with the accommodation provider. Mac Eochaidh J. stated that it was not acceptable that RIA would be the final arbitrator in a dispute between the residents in their homes, and the commercial accommodation provider.  This breaches the legal principle that nobody should be a judge in something that they have an interest in.

The Unsuccessful Grounds of Challenge

  • Direct Provision and Breach of Human Rights

Mac Eochaidh J. noted that the lack of oral evidence, and the fact that the evidence of C.A and T.A was disputed, meant that he could not rule as to whether in this particular case the applicants’ constitutional and ECHR rights had been violated due to the conditions and duration of their stay in direct provision (see para. 3.1 and paras. 6.1 to 12.6). Judge Mac Eochaidh held that the European Union Charter of Fundamental Rights did not apply to this case (see paras. 11.1 to 11.10 of the decision). As regards the State’s argument that the courts should not decide on socio-economic rights claims, Mac Eochaidh stated that where (at para. 12.6):

…State action results in a breach of human rights and where the only remedy is the expenditure of additional money, the Court, in my opinion, must be entitled to make an appropriate order, even if the consequence is that the State must spend money to meet the terms of that order.

While ultimately rejecting the applicants’ claims in this case, at para. 12.6 of his decision, Judge Mac Eochaidh did state:

…[W]here an applicant claims that ‘direct provision’ is having such adverse affects on her life as to cause serious harm and where such circumstances are backed up by appropriate medical and other independent evidence, a Court would be entitled to grant appropriate relief, even if the only remedy for the wrong involved the expenditure of additional resources by the State.

Continue reading “Direct Provision in the Irish High Court: The Decision”

Direct Provision in the Irish High Court: The Decision

Direct Provision: Minister Shatter Responds (and Paging Minister Burton)

Alan-ShatterYesterday in the Dáil, the Minister for Justice, Alan Shatter TD responded to Carl O’ Brien’s series of articles on the system of direct provision in Ireland. Minister Shatter’s contribution does not differ significantly from his or the Department of Justice’s comments on the direct provision system since he was appointed Minister for Justice in 2011 (the issue is raised constantly, and responses almost always the same). However, Minister Shatter has now given a firm commitment that the Reception and Integration Agency will publish inspection reports of direct provision accommodation centres. This commitment is welcome, however, we should await the publication of these reports.  It is hoped that this commitment will apply to all such reports since inspections started a number of years ago and not merely future inspection reports. However, Minister Shatter’s comment on this current controversy should leave those of us campaigning for the current system to end in no doubt, that he continues to wash his hands  of the impact that direct provision is having on men, women and children in direct provision (see here, here and here). For now, it appears that the Department of Justice and Minister Shatter are not for turning. Direct provision is here to stay. Only significant public pressure (of which I do not think exists) will result in any fundamental reform or scrapping of this horrific system.

Inspections

Minister Shatter began his response by stating that the Irish Times had focused on the worse elements and not the fact that most inspection reports were ‘positive’. These inspections were carried out by QTS Ltd., a Galway based safety consultants (one per year) and two unannounced visits by RIA officials. In 2010, before the last election, Minister Shatter stated, in response to the Free Legal Advice Centre’s report, One Size Doesn’t Fit All:

In the context of inspections, what the representatives are describing is the mirror image of the difficulties we had with children’s residential homes until the Health Information and Quality Authority, HIQA, was given a remit in that area. It is still a difficulty in the context of people suffering from disability and proper inspections in the area of fosterage. It is part of the incapacity of government over the past ten years to put in place appropriate transparent systems.

Living in Direct Provision

Regarding children protection, the Minister stated yesterday that the Reception and Integration Agency “has a robust child protection system”. He continued:

The instances of children being left alone were dealt with immediately and education of parents and guardians with reference to their responsibilities is a key feature of any follow up. In all cases, the primary carers for children are their parents.

This neatly sidesteps any questions about the communal nature of direct provision, whereby any concerns about child protection or any issues regarding child protection is the sole responsibility of the parent(s). There is no considered examination of the difficulties that parents may be facing, living in a communal setting, where parental autonomy is constantly undermined, by this culture of control. All intimate aspects of live that families usually decide themselves is controlled and contained by the direct provision accommodation system: set meal times; children never seeing their parents prepare meals, school lunches, parents reporting to accommodation centre staff.

Minister Shatter’s response to the issues raised yesterday, are full circle to the concerns he raised in 2010 on the direct provision system (emphasis added):

I cannot think of any reason people in accommodation should not be allowed to retain food within that accommodation but one is cut off from having access to food from 5.30 p.m. or 6 p.m. when the final meal is complete. That smacks of the type of operation one might apply in prisoner of war camps during a war, not the type of approach that a civilised democratic western European country should apply in any situation. That applies, if I could take away even Ms Blackwell’s qualification, whether one is dealing with adults living on their own or adults with children. There are few in this room who if they finish their evening meal at 6 p.m. might not want something small to eat later in the evening and one cannot predict these things with young children. I cannot understand why a system such as that would be regarded as appropriate.

No obligation to live in accommodation centres

Minister Shatter correctly notes that there is no obligation on asylum seekers to remain in direct provision centres (except in exceptional circumstances). Once asylum seekers inform ORAC of their new address, there generally no problem. Once an asylum seeker leaves direct provision while their claim is ongoing, the direct provision allowance (€19.10 per adult, €9.60 per child) is no longer paid. The 2010 Value for Money report noted that of the 16,000 or so persons whose claims for asylum/subsidiary protection/leave to remain were outstanding, 7,000 were in the direct provision systemThis is fine for asylum seekers who can rely on their own resources or on the charity of friends or family and leave the direct provision system.

Reforming Direct Provision

There was no serious consideration, either in the 2010 Value for Money report, or by Minister Shatter yesterday, of whether Ireland’s legal obligations go beyond merely ensuring  that somebody is not destitute. The Minister is correct that, in general, no asylum seeker has been left homeless or on the streets, (there have been some isolated cases that I am aware of where an asylum seeker was made homeless, see pp 16-17 here). Minister Shatter, like so many Ministers with responsibility before him, use the trump card of how systems for determining an individuals asylum claim will speed up, so as to ensure that, in general, the system of direct provision becomes time limited to 6 months (where possible). Given that fact that the Immigration, Residence and Protection Bill continues to be put on the back burner by the Department of Justice, such a unified decision making system will not be in place for some time. Unlike the former Secretary General of the Department of Justice, Mr Sean Aylward, Minister Shatter did not accuse lawyers of operating a “legal racket” and recognised that sometimes, asylum claims can and will take longer than 6 months to decide.

 

What about the Department of Social Protection? 

In all the focus on the Department of Justice, there is a need to also ensure that Minister Joan Burton responds to the fact that the Department of Social Protection is responsible for the direct provision allowance payment of €19.10 per week per adult asylum seeker and €9.60 per week per child. (I am ignoring the fact that the Department are acting outside their powers by even making this payment to asylum seekers, yet another sign that the rule of law does not seem to operate in our social protection system).  Minister Burton’s, Labour Party, had continuously criticised the direct provision system and direct provision allowance while in opposition (see here and here ) . Some Labour Party TDs continue to vocally oppose direct provision. Pressure needs to be applied to Minister Burton to raise the  direct provision allowance payments, which have remained the same since April 2000. Asylum seekers are not entitled to any other regular social welfare payment.  While Justice may be responsible for the Reception and Integration Agency and accommodation centres, Social Protection needs to be challenged more vigorously on their condemnation of asylum seekers to survive on meager allowances. Social Protection, and the current minister, Joan Burton, are every bit as responsible for the poverty and social exclusion faced by asylum seekers in Irish society. Minister Burton sanctions this state enforced poverty by failing to address the paltry direct provision allowance payment.

 

Direct Provision: Minister Shatter Responds (and Paging Minister Burton)

Law on…Police Accountability: Seminar Report

The Socio-Legal Research Centre, DCU, held the fourth in its annual “Law on…” seminar series on Wednesday of last week. Following previous explorations of the Law on… Film, Celebrity, and Risk, this year’s seminar focused on the Law on… Police Accountability. There were three speakers: Damien McCarthy, Chairman of the Legal Assistance Scheme and former President of the Garda Representative Association (GRA), Kieran Fitzgerald, Commissioner of the Garda Síóchána Ombudsman Commission (GSOC), and Dr Barry Vaughan, National Economic and Social Council (NESC).

What follows is a brief outline of the presentations delivered by each speaker.

Continue reading “Law on…Police Accountability: Seminar Report”

Law on…Police Accountability: Seminar Report

Historic Hearing in US Senate on UN Disability Treaty

We are delighted to welcome this guest post from Professor Gerard Quinn Director of the Centre for Disability Law & Policy at NUI Galway.

A historic hearing took place yesterday (Thursday, July 11th) in the US Senate Committee on Foreign Relations.  The issue before the Committee was US ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).  In the US system the Senate must gives its ‘advice and consent’ before the Federal Government can ratify a treaty.  A two thirds majority vote is needed from the full Senate before the Administration can proceed to ratification.  This is an exceedingly high bar but, especially after yesterday, it looks likely to be met.  It is now almost a foregone conclusion that the Committee – chaired by Senator John Kerry (D-Mass) – will commend a positive vote to the full Senate.

This really matters not just for the US but also for the rest of the world.  And it would certainly up the ante for Irish ratification.  The traditional bi-partisan approach of the US Congress was splendidly exemplified in opening remarks made to the Committee by Senators John McCain (R-Ariz) and Tom Harkin (D-Iowa).  The symbolism of their joint appearance spoke volumes about the natural reflex of both parties in favour of the civil rights of persons with disabilities.  Indeed, both of them relayed the support of former President H W Bush as well as former Senator Bob Dole.  This immediately took the issue out of the cauldron of partisan politics and placed it where it should be – as matter of high principle. Continue reading “Historic Hearing in US Senate on UN Disability Treaty”

Historic Hearing in US Senate on UN Disability Treaty

Consultation on new Human Rights and Equality Body Open.

The Working Group on the establishment of the new, enhanced Human Rights and Equality Commission is seeking input and ideas from civil society, members of the public and those interested in the future of human rights and equality in Ireland, on key questions arising from their Terms of Reference. This consultation process will help to inform the Working Group’s consideration of the functions, features and priorities of the new Human Rights and Equality Commission.

The Working Group was appointed by the Minister for Justice, Equality and Defence, Alan Shatter T.D., on 6 October and has met twice to date.

The key questions the Working Group is consulting on are:

a. What do people want the new body to do?

b. What features and functions does it need to do these things?

c. How should it be structured and what working methods should it use to achieve the above?

It is intended that the new Commission will be in place by the end of February 2012. As the Working Group has such a short timeframe for their work, the closing date for submissions is Wednesday 23 November 2011 at 5.30pm.

Contributions should not exceed 1,500 words and may be emailed to info@upr.ie.

Further information is available from the Working Group’s Secretariat, Department of Justice and Equality, Floor 2, Bishop’s Square, Redmond’s Hill, Dublin 2.

Consultation on new Human Rights and Equality Body Open.

World Mental Health Day

Today in World Mental Health Day – and it provides us in Ireland with a lot to think about in terms of the way in which mental health services are provided and how our mental health laws are constituted.  The key policy document on mental health is entitled “A Vision for Change” and the Expert Group on Mental Health Policy, which was established to monitor its implementation have been very critical to date in their five annual reports on the lack of progress in implementation.  See here.  In its most recent report it was critical of the absence of a recovery ethos within mental health services.  This is a major challenge that has to be addressed as principles of recovery are at the core of the philosophy underpinning “A Vision for Change”.  While there is much to be dismayed about we are at an important crossroads in Ireland in relation to our mental health laws.  The Department of Health is in the process of reviewing of the Mental Health Act 2001, while the Department of Justice is similarily reviewing the Criminal Law (Insanity) Act 2006.  This provides a significant opportunity to rethink our mental health laws in light of the UN Convention on the Rights of Persons with Disabilities (CRPD), which the Government is working towards Continue reading “World Mental Health Day”

World Mental Health Day

Thoughts on a New Ireland: Oral History and the Magdalene Laundries.

As part of the blognival ‘Thoughts on a New Ireland’, HRinI is pleased to publish this post by Katherine O’Donnell, Director of Women’s Studies, (UCD School of Social Justice) and member of the Advisory Committee of Justice for Magdalenes.

Justice for Magdalenes (JFM) www.magdalenelaundries.com has been focused on providing evidence of the Irish State’s collusion in the punitive, recarceal, for-profit-enterprises known as the Magdalene Laundries which were operated at ten locations by four Catholic religious orders – the last one closed in 1996. JFM has been circulating a draft ‘restorative justice and redress scheme’ for the women and girls who were incarcerated in the Magdalene Laundry system.

We propose that, following an apology by the State, a dedicated unit within the Department of Justice is established with the remit of facilitating surviving women and their families to access all state social services to which they are entitled and to operating as an ‘inter-departmental’ hub in further facilitating other State services and expertise. We are currently working on the detail of a compensation scheme, for lost wages, pension contributions and personal damage, the funding of which is envisaged will be provided by the Religious Congregations. In coming to terms with the complexities we have become avid students of  the wide variety of truth commissions and redress schemes which everywhere have to navigate the  gap between best Human Rights practice such as that enshrined in the 2005 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law etc. and  individuals’ rights to privacy, family life and a good name.

Continue reading “Thoughts on a New Ireland: Oral History and the Magdalene Laundries.”

Thoughts on a New Ireland: Oral History and the Magdalene Laundries.

Universal Periodic Review and Reception of Asylum Seekers

Human Rights in Ireland is pleased to bring you this guest post from Claire McCarthy, Policy & Campaigning Officer, at Nasc, The Irish Immigrant Support Centre.

Ireland’s human rights record will be examined by our peers in the UN this coming October, when our turn comes up in a new UN process called the Universal Periodic Review (UPR). Human rights organisations have submitted their concerns and recommendations for the consideration of the country representatives who will examine our record. Having examined most of them, the reception of asylum seekers appears to be by far the most widespread concern, affecting as it does children’s rights, women’s rights, mental health, social inclusion and general civil liberties. A range of organisations concerned with Ireland’s human rights standards have already made  submissions that will inform the country representatives who will ask questions, and make recommendations to Ireland about how we might improve our human rights record. Some of those organisations have taken the opportunity presented by the UPR to consult with as many concerned citizens as possible in order to prepare truly representative submissions. You may have Continue reading “Universal Periodic Review and Reception of Asylum Seekers”

Universal Periodic Review and Reception of Asylum Seekers

Non-National Failure to Produce ID Offence Deemed Unconstitutional

On Friday last, March 25th 2011, in ED v DPP the High Court ruled that section 12 of the Immigration Act 2004 was unconstitutional. Section 12 provided that non-national persons (other than those born in Ireland or under the age of 16) shall on the demand of an immigration officer or member of the Garda Síochána, produce (a) a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality, and (b) in case he or she is registered or deemed to be registered under the Act, his or her registration certificate. Failure to produce the required documentation without providing a satisfactory explanation of the circumstances which prevented the person from so doing was deemed an offence punishable by a fine of up to €3000 or imprisonment for up to 12 months or both.

While the judgment itself is as yet unavailable, the Irish Times reports that the finding of unconstitutionality by the High Court centred on the vagueness and uncertainty of the legislative provision, rather than on the concept of requiring the production of identification documents in and of itself. Continue reading “Non-National Failure to Produce ID Offence Deemed Unconstitutional”

Non-National Failure to Produce ID Offence Deemed Unconstitutional