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

UCD School of Law The Direct Provision System in Ireland

Outline of direct provision in Ireland Dept of JusticeDispersal to accommodation centres, (mainly) operated by private operators, under control of Reception & Integration Agency, Dept of Justice. Dept of Social ProtectionWeekly 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 right to workNo right to work; medical cardProvision of medical card; EducationEducation up to leaving certificate; No obligation to remain in direct provision centres butNo obligation to remain in direct provision centres but no access to payment or alternative accommodation. See further, Thornton (2013).Thornton (2013).

People in Direct Provision in Ireland

Protection Applicants

UCD School of Law Problematic Issues with Direct Provision

Concerns as Regards Legality administrative circularsUse of administrative circulars No clear legal basisNo clear legal basis for direct provision SW & Pensions (No. 2) Act 2009Effect 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)

UCD School of Law Law in the Public Interest: Challenging Direct Provision

Why Law? Why Now? protestAsylum seekers protest….but lacks widespread public support Majorityignoring/supporting direct provisionMajority in Oireachtas ignoring/supporting direct provision (reflecting wishes of constituents?). Democracy“Democracy values everybody equally, even if the majority does not” ALJScrutiny from other legal systems, ALJ (which Kate will explore shortly); EU Law ECHR LawThe impact of EU Law and ECHR Law?? UN scrutinyPotential UN scrutiny in the coming months…. suggest alternativesAbility of civil society to suggest alternatives (something Sue will discuss)

Irish Law SWAO & Child benefitAdministrative successes: SWAO & Child benefit –But limited by subsequent legislative change in 2009 Act –Still relevant for those claiming asylum prior to May dispersalRecent 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 somewhat limitedSome successes, but somewhat limited Cases to date dealt with extreme poverty & degradation –M.S.S v Belgium & Greece –M.S.S v Belgium & Greece (ECtHR-removal) –N.S & M.E –N.S & M.E (CJEU-removal) However Saciri & OthersHowever, see yesterday’s decision as regards financial allowances under the RCD: Saciri & Others (CJEU). Relevant to Ireland? Saciri & Others Saciri & Others Other possibilities? –Inhuman and degrading treatment –Private and family life –Discrimination in enjoyment of rights

International Law reluctantDomestic courts reluctant to even consider this (besides Convention on Rights of the Child) MagdalenesBut, look at successes of Justice for the Magdalenes campaign; UN Human Rights CommitteeUN Human Rights Committee examining Ireland’s compliance UN Committee on Economic, Social & Cultural RightsUN Committee on Economic, Social & Cultural Rights

UCD School of Law 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.