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)

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

The State We Are Currently In: Institutionalisation of Asylum Seekers in the Direct Provision System

There has been much focus and commentbut no full State apology, for the role that institutions of the State and the Irish people as a whole played in  permitting the operation of Magdalene Laundries for over eight decades.  The mantra of “never again” rings hollow in light of Ireland’s current practices in containment and control of asylum seekers within the Direct Provision System (see Gavin Titley’s article on this for the Guardian in October 2012). Unable to work, provided with meals, shared accommodation with strangers and a meagre allowance of €19.10 per week: the system of direct provision in all its Dickensian glory. In Ireland, there was no parliamentary debate on the foundation of the Reception and Integration Agency (RIA). Ministerial circulars on the foundation of the system of direct provision were not (and are not) readily available to the public or to asylum seekers themselves. When I initially applied under the Freedom of Information Acts in 2007 for documentation held by the Department of Justice on the legal basis for direct provision, I was told there was no such documentation. I eventually gained access to much of the documentation through the Department of Social Protection,

It is important to note that there are very significant differences between the horrors of Magdalene Laundries and the system of direct provision: direct provision hostels are not workhouses, there is no evidence of systematic abuse and asylum seekers do have the ability to leave (although this is fairly illusory given that asylum seekers are barred from receiving any other form of welfare or State support). Rather than religious congregations in charge, private enterprises generally operate this system on behalf of the Reception and Integration Agency (RIA).

However, there are some striking parallels in terms of numbers in the direct provision system, length of stay and the dehumanising and institutionalising effect of the direct provision system on asylum seekers. Continue reading “The State We Are Currently In: Institutionalisation of Asylum Seekers in the Direct Provision System”

The State We Are Currently In: Institutionalisation of Asylum Seekers in the Direct Provision System

FLAC: Making the Case for Reform of the Social Welfare Appeals System

Saoirse Brady is the Free Legal Advice Centers (FLAC) Policy and Advocacy Officer. Saoirse is responsible for FLAC’s policy work on social welfare law reform and is the author of One Size Doesn’t Fit All (2009), a legal analysis of the State’s direct provision and dispersal system for asylum seekers. Saoirse is also the author of the report Not Fair Enough, which makes the case for reform of the Social Welfare Appeals System.

FLAC’s report Not Fair Enough examines the operation of the Social Welfare Appeals Office and analyses it through a human rights lens to determine whether it complies with both domestic and international human rights standards. This report is published at a time when an ever increasing number of people are availing of social welfare payments and the workload of the Appeals Office is at a record high with more than 51,500 live appeals in 2011. In 2011, 42 per cent of decided appeals were successful.

The Appeals Office, established more than 20 years ago, is a vast improvement on the previous arrangement whereby unsuccessful social welfare applicants had to appeal directly to the Minister for Social Welfare. However, it still lacks the necessary independence to ensure full public confidence in the system as the Appeals Office is not an independent statutory body; it is in fact an office of the Department of Social Protection.  Furthermore, Appeals Officers are civil servants usually from the same government department appointed by the Minister for Social Protection without any public appointment process. The fundamental right to social security is enshrined in a number of European and international instruments including the European Social Charter, the UN International Covenant on Economic, Social and Cultural Rights as well as instruments designed to protect certain groups including women and children. A State does not Continue reading “FLAC: Making the Case for Reform of the Social Welfare Appeals System”

FLAC: Making the Case for Reform of the Social Welfare Appeals System

Reception Conditions for Asylum Seekers in Ireland: The Need for a Legislative Basis

Some 12 years after the introduction of the direct provision system for asylum seekers in Ireland, there is an urgent need for this system to be placed on a legislative basis. Asylum seekers are prohibited from working in Ireland and, since 2009, have no access whatsoever to the general social welfare system. Instead, asylum seekers are provided with accommodation on a bed and board basis, and given an allowance of €19.10 per week per adult and €9.60 per week per child. I have previously discussed issues relating to direct provision on this blog, including value for money, housing and human rights, children in the direct provision system, separated children in Ireland, women in the direct provision system.

Direct provision was introduced in April 2000 due to the perceived pull factor access to the mainstream welfare system was supposedly having on the numbers claiming asylum in Ireland. (My article on the direct provision system provides further background to the introduction of this system). The purported legal basis for the introduction of the system of direct provision was the system of supplementary welfare allowance, whereby the needs of asylum seekers were to be met in kind, through the provision of bed, board and a small allowance. It was not until 2003 that legislation was introduced to prevent asylum seekers from receiving rent allowance.[1] The habitual residence condition was introduced shortly afterwards, which restricted access to welfare payments for those who were not habitually resident in Ireland.

From freedom of information documents that I have received from the Department of Social Protection Continue reading “Reception Conditions for Asylum Seekers in Ireland: The Need for a Legislative Basis”

Reception Conditions for Asylum Seekers in Ireland: The Need for a Legislative Basis