Mohammed Younis Succeeds in the Supreme Court

Younis PicIn August 2012, the Irish High Court ruled that as Mohammad Younis was in an irregular migration situation, he could not benefit from protections under employment law (see also Dr Darius Whelan‘s excellent analysis of the High Court decision here). Today (25 June 2015), the Supreme Court set aside the decision of the High Court. The decision was set aside, not on any explicit repudiation of the High Court’s analysis of employment law, employment contracts and irregular migrant workers, but on the basis of strict adherence to the role of a court in judicial review proceedings. Rather than focus on the human rights arguments pleaded before it, the Supreme Court simply considered the jurisdiction of the High Court to make its August 2012 decision. The Rights Commissioner made two monetary awards to to Mr. Younis in March 2011.

For breaches by Mr Hussein (Mr Younis’ employer) of the Organisation of Working Time Act 1997, the Rights Commissioner awarded the sum of €5,000 to Mr. Younis. For breaches of minimum wage legislation over a number of years, Mr. Younis was awarded €86,134.42. As Mr Hussein did not appeal this decision, but did not pay Mr. Younis compensation. the Labour Court issued two determinations that these sums be paid in September 2011.

In setting aside the decision of the High Court, Murray J. in the Supreme Court noted: Continue reading

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.


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 System Challenged in the High Court: Days 3-11

Four CourtsThe High Court case,  C.A and T.A. (a minor) v Minister for Justice and Equality, Minister for Social Protection, the Attorney General and Ireland (Record No.  2013/751/JR), challenging the direct provision system is continuing to be heard before Mr Justice Colm Mac Eochaidh (see here and here for background). This purpose of this post is to give a broad flavour of some of the arguments, without going into any detail or assessing each of the arguments made by the applicants or the State. (However many of the arguments raised by the applicants and the State have been analysed on this blog on numerous occasions, but not in the context of this ongoing High Court challenge, see here). The applicants’ have now finished making their core arguments, which have focused on:

  • Lack of statutory basis for direct provision and direct provision allowance;
  • Violation of significant constitutional and ECHR rights of the applicant in direct provision (inhuman and degrading nature of system, denial of right to private and family life);
  • Denial of right to work of subsidiary protection applicants;
  • Blanket exclusion of asylum seekers/subsidiary protection applicants from receiving social welfare under social welfare law.

Yesterday, the State commenced its response to the applicants’ case by setting out some ‘big picture’ issues, and in the coming days with build upon its case against the applicants’ claims.

Rationale for Introduction & Operation of Direct Provision & Dispersal

The State began by noting the rationale for the introduction of direct provision. Dispersal was introduced as asylum seekers in the early/late 1990s, tended to congregate around urban centres. Newly arrived asylum seekers may face challenges in accessing housing in the rental sector, and there were/are concerns that permitting asylum seekers to access rent supplement (through the Supplementary Welfare Allowance scheme) would displace equally deserving Irish citizens and other long term lawful migrants in the State from accessing rental accomodation. This resulted in pressure on school places, demands on health services etc. Back then, as now, there were significant shortages in rental accomodation. The welfare system was acting as a ‘pull factor’ for drawing asylum seekers to the State. The State noted that there was a significant symmetary between legislative and government action on the whole issue of reception conditions for asylum seekers. The legislature prevents asylum seekers from accessing rent supplement and any other social welfare payment. The Executive then stepped in to ensure compliance with Ireland’s international obligations not to leave asylum seekers destitute. While direct provision may not be ideal, including not “an ideal environment to raise a child”, the State has to be mindful of other calls upon State resources.  The system of direct provision offers services and benefits to meet basic needs, which is the only obligation that the State has.  The Courts have accepted in the past (in education) that the State is not obliged to provide a preferred form of special needs education.  In terms of the four years that the applicant and her child have been in direct provision, the reasons for this delay was due to challenges before the Irish and European courts on the systems for determining subsidiary protection claims (see result of M.M. decision).

Access to State Resources

The State noted that there is not an unlimited amount of money to spend on asylum seekers. Other population groups also can make claims on State/taxpayer finance. The State is not in a position to determine the number of asylum claims each year, therefore needs flexibility in order to ensure a roof can be provided over the heads of asylum seekers. The State has obligations to taxpayers and must utilise State resources effectively, including through contracting out accommodation for asylum seekers to private operators.  The State noted that the applicants’ complaints about lack of choice/autonomy within direct provision were misconstrued. While Article 8 ECHR protects the right to private and family life, the State does not prevent any asylum applicant from living independently, through their own means. State has to mindful of the budgetary context, and this does not extend to allowing an asylum seeker a free choice as regards the choice of accommodation, food, whether to be able to cook this food for herself etc.

Right to Work

In affidavits before the Court, the Reception and Integration Agency noted that when a limited right to work was provided for in 1999, there was a spike in asylum applications after this. The State noted that many in the asylum system are economic migrants rather than “genuine” refugees/persons in need of subsidiary protection.

The case continues today (Friday, 16 May 2014), before a one week break and the case will recommence on Monday, 26 May 2014. 

Update August 2014: Argument in the case is now concluded and it is hoped that a decision will be issued in September/October 2014. 

Direct Provision System Challenged Before the Irish High Court: Day 2

fourcourtsThe case  C.A and T.A. (a minor) v Minister for Justice and Equality, Minister for Social Protection, the Attorney General and Ireland (Record No.  2013/751/JR), challenging the constitutional, legislative and rights basis of the direct provision system continued before Mr Justice Colm Mac Eochaidh in Court 13 of the High Court today. A number of procedural and substantive issues were raised.

1. Power of the Executive to Introduce Administrative Direct Provision Scheme

One of the arguments of the applicants is that the Executive does not have the power to introduce the direct provision scheme on an administrative basis due to the Social Welfare (Consolidation) Act 2005 (as amended) prohibiting asylum seekers from receiving most payments under Irish social welfare law. Judge Mac Eochaidh requested the applicants and the respondents (the State) to consider whether the hearing should proceed on this point alone, leave all other arguments aside. After receiving instructions from the clients, lead counsel for the applicants, Mr Saul Woolfson BL stated that the preference would be for the entirety of the arguments to be considered. The case is now proceeding on this basis.

2. The Budget and Direct Provision

Mr Justice  Mac Eochaidh asked counsel for the applicants where was direct provision expenditure approved in the State’s budgetary processes. The Department of Justice and Equality Estimates for 2014 (as in previous years 2013, 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2001, 2000) Continue reading

Direct Provision System Challenged Before the Irish High Court: Day 1

Four CourtsToday, 29 April 2014, an important case commenced challenging the system of direct provision in Ireland In C.A and T.A. (a minor) v Minister for Justice and Equality, Minister for Social Protection, the Attorney General and Ireland (Record No.  2013/751/JR). Today, the case was dominated by procedural arguments.  The applicants are challenging the system of direct provision on a number of grounds, including:

1. Lack of Statutory Basis for Direct Provision &  Nature of Direct Provision Allowance

The applicants are arguing that the lack of a statutory basis for the system of direct provision and payment of direct provision allowance of €19.10 per week per adult and €9.60 per week, per child,  has no legal basis,  continues to operate unlawfully, through ministerial circulars and administrative arrangements without any legal basis. This, it is argued, is a violation of Article 15.2.1. of the Constitution which provides the: “sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State”.  On this blog, I have repeatedly made the argument that the direct provision system is without any legal basis and by operating the system of direct provision, the various government departments are acting outside their powers (see herehereherehereherehere ,here and here).  I have also examined this issue in an article in the Journal of Social Security Law, “Social Welfare Law and Asylum Seekers in Ireland: An Anatomy of Exclusion” (a pre-peer reviewed version of this article is available here).

2. System of Direct Provision is a Violation Rights under the Irish Constitution, the European Convention on Human Rights and the European Charter of Fundamental Rights

The applicants are arguing that the system of direct provision, the lack of any independent complaints process, the constant surveillance, control of what an applicant can eat violate the following legally protected rights:

The issue of the human rights impact of direct provision has been examined extensively on this blog. See also here for a discussion on the socio-economic rights of asylum seekers in Europe and international law.

3. The Refusal to Consider the Adult Subsidiary Protection Applicant‘s Right to Work

The adult applicant in this case had requested permission to work, however this was refused by the Minister for Justice in 2013. The applicant contends that as a subsidiary protection applicant, the Minister cannot rely on Section 9(4) of the Refugee Act 1996 (which prohibits asylum seekers from seeking or entering employment). The Minister must consider her application to be allowed work in its own right.

4. Blanket Exclusion of Asylum Seekers and those seeking Subsidiary Protection from Accessing Social 

The applicant is further challenging the absolute exclusion of those seeking asylum/subsidiary protection from accessing social welfare rights under the Social Welfare Act 2005 (as amended) (see here and here).

This case is of significant interest to asylum seekers, so many of whom have spent several years in the asylum process. I will provide regular updates on this case on Human Rights in Ireland as the case progresses (in so far as I can). For now, this case represents yet another challenge to the system of direct provision, a system whose purpose is to dehumanise, deter, and violate the very essence of human dignity.

A summary of the arguments in Day Two of the case can be found here.

'Brain Teasers', Direct Provision & Family Life

DP End Institutionalised LivingYesterday, three families of asylum seekers were granted leave to challenge the system of direct provision in the High Court. In a blog post last week on direct provision, I noted how the Minister for Justice in some ways side stepped the child protection concerns raised by communal direct provision centres. Minister Shatter stated that any child protection concerns were due to wayward parents or guardians not taking proper care of their children. Minister Shatter’s remark reminded me of  a document I obtained under the Freedom of Information Act. The document, dated 17 June 2008, is disturbing.  You can access a redacted version of this document here: Direct Provision & Family Life. I have redacted  identifying features, place names, including names of departmental officials involved in this ‘process’.

This is the story:

An asylum seeker arrived in a large Irish city in January 2004. The asylum seeker was dispersed to a town. The asylum seeker had a relationship. A child was born. The child was an Irish citizen. The asylum seeker was still living in direct provision for over 3 and a half years. At some point the relationship with the child’s mother broke down. The asylum seeker was granted access by a court to the child.   The Reception and Integration Agency said that the asylum seeker could live in the large Irish city in a self catering accommodation unit, and get full rate supplementary welfare allowance (minus €18).  This was over 200km away from the asylum seeker’s child and he did not want to move. The asylum seeker asked a community welfare officer (then employed by the HSE) for a full rate of supplementary welfare allowance so he could live outside of the direct provision system. The HSE Appeals Officer for that region asked the Department of Social Protection what was to be done. The Appeals Officer is anxious:

I think this individual is availing of legal advice….He is quoting basic human rights for children without discrimination….

The HSE Appeals Office “would welcome” the “views and any guidance” available from the Department of Social and Family Affairs. The response of the Department to this ‘brain teaser’ (emphasis added):

The person concerned is an asylum seeker….He is not entitled to any social welfare payments….his immediate needs are catered for by Direct Provision…

The fact that the direct provision arrangements available to him do not suit his personal circumstances does not give him any entitlement to a social welfare or SWA payment.

Seeking to maintain an ongoing relationship and access to a child is deemed a ‘personal circumstance’. The rights of the child to have visits with his/her father not even considered. Something that is not to be facilitated or encouraged, as it does not fit into the direct provision system.  We do not know what the HSE Appeals Officer ultimately decided. I wonder what other ‘brain teasers’ there were/are that emerge from 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

Legal Challenge to Direct Provision in the High Court

Supreme CourtLater today (Monday, 29 July 2013), a legal challenge is expected to be brought before the High Court challenging the system of direct provision in Ireland. The challenge is been brought by six applicants who are residing in the direct provision system in the application of N.M and others v Minister for Justice and Equality, Minister for Social Protection, Attorney General and Ireland (Record No. 2013 553 JR).

Update 22/01/2014: This challenge is no longer proceeding. The reasons for this challenge not proceeding are unclear.

Update 29/04/2014: A new challenge to the system of direct provision has commenced, more information available here.

This challenge also deals with the issue of subsidiary protection, however this post will focus solely on the issue of direct provision.

The applicants are a family of six, which includes the mother and father, along with their children ranging in ages from 20 to just a few weeks old. The applicants are originally from the African continent and have been resident in direct provision centres for just under four and a half years.

The direct provision system is challenged in a number of respects, including:

  1. The system of direct provision has no legal basis, was unlawfully established and continues to operate unlawfully, through ministerial circulars and administrative arrangements without any legal basis. This is a violation of Article 15.2.1. of the Constitution which provides the: “sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State”.  On this blog, I have repeatedly made the argument that the direct provision system is without any legal basis and by operating the system of direct provision, the various government departments are acting outside their powers (see here, here, here, here, here, here , Continue reading

Diagnosis for Human Rights?

Human Rights in Ireland is pleased to welcome this guest post from Ben Power. Ben is the Board and Company Secretary for Transgender Equality Network Ireland. For more information on TENI’s work see

Transgender Equality Network Ireland (TENI) is Ireland’s national trans organisation. We seek to improve conditions and advance the human rights and equality of trans people and their families. We are dedicated to ending transphobia, including stigma, discrimination and inequality. As part of this, one of the most important campaigns we are currently working on is the introduction of fully inclusive Gender Recognition Legislation. This provides a process enabling trans people to achieve full legal recognition of their preferred gender and allows for the acquisition of a new birth certificate that reflects this change. The introduction of legislation will make it easier for trans people in Ireland to lead safe, healthy and integrated lives.  Legislation has been proposed, however, much of it is restrictive and would infringe on the rights and privacy of trans people. In October 2012, a blog carnival to mark the 5th anniversary of Dr Foy’s victory  in the High Court was used to highlight the issues with the proposed legislation. Read it here.

So why does Gender Recognition Matter so much? What makes it so important?

There are many situations in an individual’s life where they are required to present a birth certificate in order to obtain their legal entitlements. For a transgender person this poses some complications. When the name and gender on your birth certificate is vastly different from the name you currently use and how you present your gender, questions will always be asked and this invariably leads to an awkward explanation forcing the trans person to “out” themselves, Continue reading

O'Sullivan: Five years is a long time

Dr Orlaith O’Sullivan is Communications Officer for TENI. To find out more about TENI’s work see

Five years is a long time.

The world has moved on in the five years since 19 October 2007, when Mr Justice Liam McKechnie explained in no uncertain terms that the State was in breach of the European Convention on Human Rights and that the Irish Government needed to prioritise Gender Recognition Legislation as a matter of urgency. Five years on, it may feel like Ireland is no closer to enabling its transgender residents to access their fundamental human rights. We’re the last country in the EU to legislate. The legislative proposals that we have are deeply problematic: forcing a choice between family and identity; forcing diagnosis of mental illness in order to access a basic human right. And people with intersex conditions – as so often happens – are left out. Legislation based on current proposals would be out of date before even enacted, and would certainly be challenged in Irish and European courts. A progress report on Ireland’s gender recognition legislation can make for pretty bleak reading.

Yet despite the feeling of stagnancy, there has been tremendous change in the interim. And the single most significant change in the last five years is us. Trans activism has grown from its core of peer trans support – patiently, stubbornly, indefatigably – spreading the word that trans rights are human rights, plain and simple. In 2005 a small group of activists sat together in a living room in Dublin and dared to imagine a national trans advocacy organisation for Ireland. In 2012, their vision is a vibrant, thriving reality.

Transgender Equality Network Ireland (TENI) works day-to-day supporting individuals and families facing gender identity issues for the first time. We raise trans awareness Continue reading