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 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 in the High Court: Days 3-11

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 2”

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