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

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

Conference on Executive Accountability and Parliamentary Democracy

The School of Law at NUI Galway in association with the Mason Hayes + Curran are to hold a conference on executive accountability and parliamentary democracy in Aras Moyola at NUI Galway on 26 March 2011.  See here for online registration.  This half-day conference marks the 5th Anniversary of the commencement of the LL.M in Public Law offered by the School of Law at NUI Galway.  See here for information on the LL.M in Public Law.  Catherine McGuinness Adjunct Professor of Law at the School of Law, NUI Galway will chair the event.  Emily O’Reilly the Ombudsman and Information Commissioner will deliver a keynote address and Donncha O’Connell from the School of Law at NUIG will present a paper on Accountability and the Constitution.  Catherine Allen a Partner with Mason, Hayes & Curran will present a paper on Accountability and the Environment.  Political analyst and lecturer at TCD Elaine Byrne will speak on accountability and perception.



Conference on Executive Accountability and Parliamentary Democracy