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.

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

Edward Snowden, Asylum & Ireland

Snowdon picIt has been reported in the media this morning that Edward Snowden has “applied for” asylum in Ireland, along with applications to 19 other countries (see here, here, here and here). However, as is clear from a reading of the Refugee Act 1996 (as amended), Mr Snowden has not made any such application for asylum in Ireland. Leaving aside the issue of whether Snowden qualifies as a person in need of refugee or subsidiary protection, to apply for asylum in Ireland, Section 8(1) of the 1996 Act states:

A person who arrives at the frontiers of the State seeking asylum in the State or seeking the protection of the State against persecution or requesting not to be returned or removed to a particular country…. [emphasis added]

As Snowden has not arrived at the frontiers of the State, he is unable to make an application for asylum/protection in Ireland.  Unlike Ecuador, an individual cannot make an asylum claim at an Irish embassy (be it in Russia or elsewhere). If Snowden was to (somehow!) make it to Ireland and made an application for refugee or subsidiary protection at the frontiers of the State, the United States has not been designated a safe country of origin, so Mr Snowden’s asylum and/or subsidiary protection claim would have to be dealt with under the legal framework of the 1996 Act and 2006 Regulations. Given the low rate of acceptance of refugee and subsidiary protection claims in Ireland, as well as the direct provision system in place, Mr Snowden might want to think twice about making any such journey to Ireland.

 Update 16:35pm 20/07/2013: The Taoiseach (Irish Prime Minister) confirms that applications for asylum cannot be made outside of Ireland. However, the Taoiseach also stated that if Snowden did apply for asylum in Ireland, it would be dealt with under Irish law.

 

Edward Snowden, Asylum & Ireland

UNHCR #do1thing: Subsidiary Protection

In an earlier post, I outlined the core meaning of the terms refugee and asylum seeker. In addition to refugee protection in Ireland, an asylum seeker who fails to fall within the terms of this definition may be entitled to subsidiary protection. Subsidiary protection came about as a result of European Union law. Where an asylum seeker can show that she will face a real risk of serious harm in her home country, she will be entitled to subsidiary protection. Serious harm is defined as the:

UNHCR #do1thing: Subsidiary Protection