On the Margins of Socio Economic Rights: Asylum Seekers & Direct

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Using Law to Challenge Direct
Provision in Ireland
Dr Liam Thornton
UCD School of Law
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
The Direct Provision System in Ireland
UCD School of Law
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
2013
2012
2009
2005
People in Direct
Provision
2002
2001
2000
0
2000
4000
6000
8000
Protection Applicants
2013
2012
2009
2005
Protection
Applicants
2002
2001
2000
1998
0
5000
10000
15000
Problematic Issues with Direct
Provision
UCD School of Law
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)
As of at December 2013
1400
1200
1000
800
600
Number
400
200
0
1 Year
or less
1-2
Years
2-4
Years
4-6
Years
6 Years
+
Law in the Public Interest:
Challenging Direct Provision
UCD School of Law
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 Equalitywithdrawn, 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
Conclusions
UCD School of Law
• 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.
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