Guest Contribution: Saoirse Brady (FLAC) on the Direct Provision System

We are delighted to welcome this guest contribution from Saoirse Brady, Policy and Campaigns Officer,  Free Legal Advice Centres. You can find out more about Saoirse on our Guest Contributors page.

To mark the tenth anniversary of the direct provision and dispersal system, FLAC launched its report One Size Doesn’t Fit All.   The report updates the 2003 FLAC report Direct Discrimination? which looked at the way in which asylum seekers and persons seeking other forms of protection were accommodated in Ireland, set apart from other destitute individuals.  The title of the report refers to the way in which the direct provision and dispersal system is operated: Residents are not treated as human beings but rather as a collective group without individual needs or personal circumstances.

Direct provision and dispersal was introduced as a nationwide policy in April 2000. It was introduced initially to alleviate the housing shortage faced by the Eastern Health Board due to the high numbers of people coming to seek asylum in Ireland.  Ireland is a party to the 1951 UN Refugee Convention and it is important to understand that anyone who comes to Ireland “to seek and to enjoy… asylum from persecution” is entitled to enter and remain here until a final determination is reached on their protection status.    Despite the dramatic decrease in the number of asylum seekers, the Department of Justice, Equality and Law Reform (DJELR) continues to operate the policy of accommodating persons seeking protection in centres where they are given three meals a day at set times and a weekly allowance of €19.10 for an adult and €9.60 for a child. This is the only social welfare payment never to have increased.

While the DJELR recognises the State’s responsibility to care for people seeking asylum, it offsets these obligations against immigration policy concerns.   The Principal Officer of the Reception and Integration Agency (RIA) has described direct provision as “the only system that could have fulfilled Ireland’s humanitarian and international obligations and, at the same time, not have created an economic pull factor for economic migrants…” (Dowling in Ní Shé et al 2007).  The removal of any entitlement to rent supplement from asylum seekers in 2003, coupled with the prohibition on working, means that people have very little option but to enter and remain in the direct provision and dispersal system until a final determination is made on their status.

The number of asylum applications is now at its lowest since 1996 but the number of people living in direct provision remains high in comparison.  The latest RIA statistics from end of December 2009 show that there were 6482 direct provision residents whereas there were only 2689 asylum applications made in the whole of 2009.

When direct provision was introduced, the Government envisaged that a person would remain there for six months at most while their application for asylum was determined.  Ten years later, more than half of the current residents have been in direct provision for more than two years and a third for more than three.  The Government’s response is that people appeal negative decisions thereby prolonging the time spent in direct provision.  However, in a country where the rule of law prevails, a person who has applied for protection should not be criticised for exercising their rights under that law.  If a fairer, more efficient procedure was in place then people would not be left to languish in direct provision accommodation, often for years on end.

Since the introduction of direct provision and dispersal, most social welfare supports for direct provision residents have been removed.  Reference has already been made to the exclusion of asylum seekers from accessing rent allowance but the introduction of the Habitual Residence Condition (HRC) in 2004 was even more onerous.  The Department of Social and Family Affairs (DSFA) operated a blanket ban, refusing any direct provision resident who applied after 1 May 2004.  This included new or recently arrived parents applying for Child Benefit which had previously been a universal payment.

FLAC challenged this complete prohibition in a series of cases brought before the Chief Social Welfare Appeals Officer for review.  He found that a person living in direct provision could satisfy the HRC as the legislation did not exclude any particular category of people.  He stated that each case had to be decided on its own individual circumstances.  Furthermore, he rejected the DSFA’s argument that he should have regard to a Supreme Court decision entitled Goncescu and Others v Minister for Justice, Equality and Law Reform, as he found that the case “did not have a social welfare relevance and that the judgment pre-dated the introduction of the habitual residence legislation”.  FLAC issued a briefing paper on all of these decisions.  However, in December 2009, the week following the final decisions in this set, the Government introduced legislation to bar asylum seekers and others living in direct provision from being able to satisfy the HRC.  For more details see FLAC’s additional briefing document.

The system of direct provision and dispersal dehumanises residents and is used as a “push factor”.  It operates as an industry without taking into account its intended purpose which is to ensure that the Irish State is fulfilling its duty of care to people seeking protection, under both domestic and international human rights law.  The system was set up to serve the requirements of the bureaucrats who administer it rather than addressing the needs of residents themselves.  Therefore, direct provision has a negative impact on a number of human rights as outlined in the report including the rights to an adequate standard of health and housing, the right to work, the right to food and freedom of expression and association to name but a few.

As an example, according to RIA statistics for December 2009, there are currently 2,010 children under 18 living in direct provision. The parents of these children cannot access family benefits in the same way as other people living in Ireland which is contrary to Article 2 of the UN Convention on the Rights of the Child which forbids discrimination against any child on the basis of his/her parents’ status, including immigration status.  The best interests of the child must be prioritised in all decisions concerning children.  These obligations are echoed in the Government’s own National Children’s Strategy.  FLAC believes it is time for the Government to live up to its commitments and ensure that all children are treated equally.

All people living in Ireland are entitled to be treated with dignity and respect regardless of their status, in accordance with the obligations the Irish State has undertaken by ratifying international treaties.  In fact General Comment No. 31 issued by the UN Human Rights Committee states that “the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party”.

Every person who applies for asylum in Ireland is legally present and entitled to remain until a final determination has been made on his/her status.  FLAC has called for the abolition of the direct provision and dispersal system in Ireland but, while it continues to exist, the State should carry out a human rights audit of the system.  In addition a greater level of care needs to be taken to guarantee the rights of particularly vulnerable residents whether by reason of their age, gender, disability, health, sexual orientation or other attribute.  There is also a need for greater transparency and accountability so that residents will have faith in the system.   People living in direct provision should be consulted and allowed to participate in any decision made about them.

In conclusion, people who come to Ireland seeking refuge from persecution should not face further discrimination due to their immigration status.  Ireland will only fulfill its human rights obligations by ensuring that direct provision residents have an adequate and acceptable standard of living and are afforded the right to live in dignity.