UCD School of Law

Using Law to Challenge Direct Provision in Ireland

Dr Liam Thornton

Outline

• Outline of the system of direct provision in Ireland

• Problematic issues with direct provision– Legality– Impact on individuals, children & families

• Using Law to Challenge Direct Provision– Irish law– European law– International law

• Conclusions

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The Direct Provision System in Ireland

Outline of direct provision in Ireland

• Dispersal to accommodation centres, (mainly) operated by private operators, under control of Reception & Integration Agency, Dept of Justice.

• Weekly payment, made by Dept of Social Protection– €19.10 per adult– €9.60 per child– No other welfare entitlement (except for UNPs and

ENPs)

Other Rights & Restrictions

• No right to work;

• Provision of medical card;

• Education up to leaving certificate;

• No obligation to remain in direct provision centres but no access to payment or alternative accommodation.

• See further, Thornton (2013).

People in Direct Provision in Ireland

2000

2001

2002

2005

2009

2012

2013

010

0020

0030

0040

0050

0060

0070

00

People in Direct Provision

Protection Applicants

1998

2000

2001

2002

2005

2009

2012

2013

020

0040

0060

0080

00

1000

0

1200

0

1400

0

Protection Ap-plicants

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Problematic Issues with Direct Provision

Concerns as Regards Legality

• Use of administrative circulars

• No clear legal basis for direct provision

• Effect of Section 15 of SW & Pensions (No. 2) Act 2009– €19.10/€9.60 is outside powers of Dept of Social

Protection– What is the basis for RIA paying for

accommodation?

Impact on Persons in Direct Provision

Time Spent in Direct Provision (Based on Initial Asylum App)

1 Year or less

1-2 Years

2-4 Years

4-6 Years

6 Years +

0

200

400

600

800

1000

1200

1400

As of at December 2013

Number

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Law in the Public Interest: Challenging Direct Provision

Why Law? Why Now?

• Asylum seekers protest….but lacks widespread public support

• Majority in Oireachtas ignoring/supporting direct provision (reflecting wishes of constituents?).

• “Democracy values everybody equally, even if the majority does not”

• Scrutiny from other legal systems, ALJ (which Kate will explore shortly);

• The impact of EU Law and ECHR Law??

• Potential UN scrutiny in the coming months….

• Ability of civil society to suggest alternatives (something Sue will discuss)

Irish Law

• Administrative successes: SWAO & Child benefit– But limited by subsequent legislative change in 2009

Act– Still relevant for those claiming asylum prior to May

2009.

• Recent success as regards dispersal by KOD Lyons

• Court challenges (?):– N.M and others v Minister for Justice and Equality-

withdrawn, but other cases in pipeline– Administrative & Legislative– ECHR Act 2003 & Constitution– Possibility of success?

European Union & ECHR Law

• Some successes, but somewhat limited

• Cases to date dealt with extreme poverty & degradation – M.S.S v Belgium & Greece (ECtHR-removal)– N.S & M.E (CJEU-removal)

• However, see yesterday’s decision as regards financial allowances under the RCD: Saciri & Others (CJEU). Relevant to Ireland?

• Other possibilities?– Inhuman and degrading treatment– Private and family life– Discrimination in enjoyment of rights

International Law

• Domestic courts reluctant to even consider this (besides Convention on Rights of the Child)

• But, look at successes of Justice for the Magdalenes campaign;

• UN Human Rights Committee examining Ireland’s compliance

• UN Committee on Economic, Social & Cultural Rights

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Conclusions

• For the political system to act, are we awaiting a major scandal….?

• With political avenues closed off, need to focus on legal challenges

• However, we need to recognise limitations of public interest law in this area

• Need full scale reform of status determination system-at the root cause of direct provision.