Direct Provision: A Challenge to Law, A Challenge to Rights

Direct ProvisionOn February 28 2014, UCD Human Rights Network hosted a seminar, Direct Provision: A Challenge to Law, A Challenge to Rights.  Senator Jillian van Turnhout discussed, amongst other things, political engagement with the direct provision system. Kirsty Linkin, Law Centre (NI) discussed the impact of the Northern Ireland case, ALJ v Secretary of State for the Home Department (summary of this case here). You can access Kirsty’s slides here: Law Centre (NI) Direct Provision & the ALJ Case in Northern Ireland . Sue Conlan, from the Irish Refugee Council, examined the system of direct provision, with specific reference to framing an alternative to direct provision

I spoke on the use of law to challenge direct provision. My speaking notes for this are below. My slides can be accessed here: Using Law to Challenge Direct Provision.

Firstly, in addition to Prof Colin Scott’s and Senator Jillian van Turnhout’s welcome, can I welcome you to UCD School of Law. I am delighted to see so many of you at this UCD Human Rights Network seminar.

In the next 15 minutes, I will very briefly outline the system of direct provision and highlight the key problematic issues with direct provision, including legality, impact on individuals, children and families.

I will then turn to consider why I believe that law must be used to challenge direct provision, and offer some comments on how Irish, European and International law can assist in undermining the direct provision system.

I will then offer some concluding thoughts.

Direct provision will be 14 years of age on 01 April 2014. Direct Provision has survived a massive economic boom and an enormous economic bust. It has survived moments of significant and deep reflection by the Irish political establishment and Irish society as a whole on how, in decades passed, on the rights of children and societal treatment of women and men in industrial schools, Magdalenes laundries, mental hospitals, borstals and so on. Yet, direct provision remains in place.  Society’s capacity to look the other way, to not question or to show scant disregard for the rights of others remains.

For those not familiar with the system, this is an outline of the key attributes of direct provision

Asylum seekers are dispersed to privately run accommodation centres, on a bed and board basis, operated by the Reception and Integration Agency. There is no entitlement to any other welfare payment, bar the direct provision allowance payment of €19.10 per week per adult or €9.60 per week per child.

There is no right to work, on pain of criminal conviction; although asylum seekers are provided with medical cards and education up to leaving certificate (for those below a certain age). Direct provision is not compulsory, and a large minority of asylum seekers do not utilise direct provision.

Lets take a look at some statistics now. By December 2000, some 8 months into operation, there were 3,077 asylum seekers in direct provision. This, as we can see from the next slide, was from a total number of asylum applicants reaching in or about 10,000.  The numbers rose of just over 4,100 in 2001, before falling, and continuing to fall until from 2005-2009, the numbers in direct provision increased, while, at the same time, the numbers seeking asylum fell dramatically. In 2009, over 6000 people were resident in direct provision. At the end of December 2013, almost 4,500 people were in direct provision. Continue reading “Direct Provision: A Challenge to Law, A Challenge to Rights”

Direct Provision: A Challenge to Law, A Challenge to Rights

Proposed Changes to Judicial Review in the UK.

We are delighted to welcome this guest post by Maeve O’Rourke. Maeve is a barrister at Thomas Bingham Chambers, 33 Bedford Row. Maeve is the 2013 Pro Bono Lawyer of the Year and is also this year’s recipient of the Forgotten Irish Award. Maeve’s previous guest posts for Human Rights in Ireland can be viewed by using the search tool on this page.

The UK Government’s Consultation on “Judicial Review: Proposals for Further Reform”  closed on 1st November 2013.

One of the most contentious aspects of the Consultation Paper is the proposal in Chapter 4 to amend the test for standing to prevent groups or individuals who are not “directly” affected by an alleged unlawful decision from bringing a claim for judicial review.

In its current form, the “sufficient interest” test for standing is crucially balanced to avoid abuse whilst ensuring that it does not act as a licence for unlawful executive action in the absence of a “directly” affected claimant.

The Government’s proposal means that groups which collectively represent the views of individuals, and which previously have brought – and won – judicial reviews in areas of public importance, will have their hands tied in the face of potential unlawful Government behaviour. Even where they are the only ones with the ability or expertise to bring a claim, they will be barred from acting to uphold the rule of law.

Throughout this Consultation Paper and the recent Transforming Legal Aid Consultation, the Government has proposed measures which will decimate the access of “directly” affected individuals to judicial review. The proposals on standing will consolidate that attack, ensuring that as fewer individuals are able to bring claims in their own right, civil society is simultaneously prevented from stepping in to fill the void.

Under the current “sufficient interest” test, the more public interest that attaches to judicial scrutiny of the subject matter of the application, the less directly affected the claimant may need to be. When considering an application by an interested individual or group, the courts also ask themselves whether there is a more appropriate claimant than the one asserting standing.

Therefore, permission tends to be granted to representative groups or individuals where the claim might otherwise not have been brought and it is in the public interest – and the interest of the rule of law – that it should be.

The rationale for this approach was stated by Lord Diplock in R v Inland Revenue Commissioners ex p NFSSB [1985] AC 617 as follows:

“It would, in my view, be a grave lacuna in our system of public law if a pressure group…or even a single public-spirited taxpayer were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped…It is not…a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are accountable to a court of justice for the lawfulness of what they do, and of that the court is the only judge.”[1]

Hence, the World Development Movement was allowed to pursue a successful application against a decision of the Home Secretary regarding overseas development which was unlawful and “so economically unsound that there is no economic argument in favour of the case”, in circumstances where there was no other likely challenger.[2]

Greenpeace was allowed to challenge a decision of the Inspectorate of Pollution to authorise the discharge of radioactive waste from Sellafield on the basis that 2,500 of its supporters came from the Cumbria region and if Greenpeace were denied standing, those it represented might not have an effective way of bringing the issue before the court.[3]

Maya Evans was allowed to challenge the Government’s practice of transferring suspected insurgents to the Afghan authorities during UK operations in Afghanistan. It was “with hesitation” that the Court of Appeal ultimately rejected her claim in a 327-paragraph judgment which revealed that there was “plainly a possibility of torture or serious mistreatment” at some facilities.[4] Clearly, those “directly” affected could not have brought this challenge themselves.

By proposing that the absence of a “directly” affected claimant should automatically allow the Government to avoid judicial review, the Consultation Paper is, in effect, suggesting a licence for unlawful executive action.

The Government has provided no coherent evidence to justify its proposals.

The case study which the Consultation Paper proffers as an example of “the inappropriate use of judicial review as a campaign tactic” was a claim brought by a classic “directly” affected individual, not a representative group.[5]

The Government does not say that NGOs, charities, pressure groups and faith organisations are clogging up the courts.[6]

Nor does it argue that claims by representative groups are largely “unmeritorious”. According to the Consultation Paper, judicial reviews by representative groups are “relatively successful compared to other JR cases”.[7] Of the 20 applications that are granted permission annually, a majority are either successful at final hearing or are withdrawn (which, the government concedes, often means they settle in favour of the claimant).[8]

The Government’s real concern may be that these cases are too likely to succeed. If that is the true rationale, it is difficult to imagine a greater affront to the rule of law.

[1] R v Inland Revenue Commissioners ex p NFSSB [1985] AC 617 at 664E

[2] R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386

[3] R v HM Inspectorate of Pollution and Ministry of Agriculture, Fisheries and Food ex p Greenpeace Ltd [1994] 4 All ER 329

[4] R (on the application of Maya Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin)

[5] See Consultation Paper, page 6. R (Coleman) v The London Borough of Barnet Council & Anor [2012] EWHC 3725 (Admin). The claim was against planning permission and was brought by a man with a disability who lived within walking distance of the land in question and had been a weekly visitor to the garden centre that had previously occupied it for over 24 years.[5]

[6] . On the Consultation Paper’s own figures, applications by these groups accounted for 0.4% of all claims in 2011.

[7] Consultation Paper, para 78

[8] Consultation Paper, para 12

Proposed Changes to Judicial Review in the UK.

Amram on Maternity Leave & Surrogacy: The Impact of EU Law

AmramHuman Rights in Ireland welcomes this guest post from Dr Denise Amram. Denise is a qualified Italian solicitor and is currently a visiting postdoctoral researcher at the Sutherland School of Law, University College Dublin.

Surrogacy is a sensitive issue, involving ethical, sociological, medical, and legal issues. The growing interest in this form of assisted reproduction has not spared the rise of legal issues related to the recognition of rights to people undertaking surrogacy.

Last Thursday two different Opinions were delivered by two Advocates General (AG) of the Court of Justice of the European Union (CJEU) about the possibility for the intended mothers to access to maternity leave.

Both the Opinions may affect Court’s decisions respectively on Case C-363/12 and on the Case-167/12, and –consequently- EU Member States approaches on dealing with surrogacy matters and employment issues.

The first Opinion, delivered by AG Wahl, concerns an Irish woman  (Z) who arranged for surrogacy because of a rare condition by which she could not support a pregnancy even if her ovaries were healthy. During the surrogate’s pregnancy, her employer granted her just the unpaid leave, refusing her the maternity one. She asked the Equality Tribunal to verify whether or not such refusal constitutes discrimination on grounds of sex, family status and disability.

The second Opinion, delivered by AG Kokkot, relates to a British woman (C.D.) who arranged for surrogacy and asked a maternity leave. Her request was firstly refused, and then granted by her employer. However, since C.D. intended to have a further child by a surrogate mother, she decided to claim against the original refusal of her application before the Employment Tribunal, complaining discrimination on the grounds of sex and/or pregnancy and motherhood. Continue reading “Amram on Maternity Leave & Surrogacy: The Impact of EU Law”

Amram on Maternity Leave & Surrogacy: The Impact of EU Law

The ECJ on Aslyum, Greece & the UK Protocol on the EU Charter

Last Wednesday, the European Court of Justice issued a flurry of judgments just before the Christmas break. Indeed, there were so many interesting and important decisions amongst the twenty or so handed down that seems foolish to consider any of them the ‘most important’. Nonetheless the judgment in NS and Others v SSHD (C-411/10) must be a contender for the title. The case concerns an asylum seeker in Britain who first entered the EU through Greece. The Dublin Regulation, which governs this aspect of EU asylum law, would ordinarily dictate that the applicant should be sent to Greece to have his asylum claim considered there. However, Mr Saeedi challenged his transfer to Greece, claiming that his human rights would be infringed by such a transfer as Greece would be unable to process his application. NS was joined with an Irish case, ME & Others v Refugee Applications Commissioner & MEJLR (C-493/10), which raised similar questions for EU law. Continue reading “The ECJ on Aslyum, Greece & the UK Protocol on the EU Charter”

The ECJ on Aslyum, Greece & the UK Protocol on the EU Charter

New Human Rights Blog

1 Crown Office Row has launched a new blog, the UK Human Rights Blog. It will be authored by a junior, a silk and an academic member of chambers. They describe the new venture as follows:

For 10 years, 1 Crown Office Row, the Chambers of Philip Havers QC, have run the widely acclaimed free Human Rights Update service at This blog aims to expand on that service.

New Human Rights Blog

Nadia Eweida in the Court of Appeal

Yesterday, the Court of Appeal reserved judgment in the case of Nadia Eweida, a Pentacostal Christian and British Airways check-in worker who was banned from visibly wearing a small cross and chain around her neck while at work. BA  permitted  employees to wear items which were required by particular religious belief, such as the Jewish yarmulke, the Sikh kara and turban and the Muslim hijab but did not permit other symbols or garmets which expressed a political or religious allegiance. Ms Eweida wears the cross as an expression of her Christianity and to remind others that Jesus loves them. BA eventually changed its policy – in part because of financial pressure exerted by the Church of England – but in the meantime a precedent was set at the Employment Appeals Tribunal which Ms Eweida, with the backing of Liberty, is seeking to challenge. Ms Eweida’s case will be of interest to those who are following similar Irish disputes, including that over the place of Sikh turbans in the garda uniform.

Continue reading “Nadia Eweida in the Court of Appeal”

Nadia Eweida in the Court of Appeal

Ghai v Newcastle City Council in the Court of Appeal.

“My loyalty is to Britain’s values of fairness, tolerance and freedom. If I cannot die as a true Hindu, it will mean those values have died too.”

In the UK, the Court of Appeal has reserved judgment in the case of Davender Ghai (pictured left, centre), an elderly Hindu man who is challenging a decision of Newcastle City Council refusing permission for the construction of a site on which traditional Hindu funeral ceremonies could be celebrated. Such ceremonies involve the cremation of the deceased’s remains on an open-air funeral pyre, which is set alight by the eldest son or other appropriate relative. Mr. Ghai explains the ritual, which includes the breaking of the deceased’s skull, here. In 2006, Mr. Ghai was involved in the illegal Northumberland funeral rites of Rajpal Mehat, which included an open air pyre. The BBC reports with footage of the event here. The local police did not intervene and the Crown Prosecution Service determined that prosecution would not be in the public interest.The Council argues that the burning of human remains other than in a crematorium is prohibited by legislation. Mr. Ghai was unsuccessful in the High Court. The judgment of Cranston J is here and a shorter case note is available here.

Continue reading “Ghai v Newcastle City Council in the Court of Appeal.”

Ghai v Newcastle City Council in the Court of Appeal.