by Jessica Commins
Jessica Commins is an incoming final year Law with History student at University College Dublin. In this insightful article, Jessica shares her perspective on efforts to reform Ireland’s Direct Provision system.
Direct Provision and Dispersal is the system by which the Irish government has provided for international protection applicants for the last twenty years while their protection claims are processed, through provision of accommodation, food and a small weekly allowance.[1]Although small but significant strides have been made in recent years, these improvements pale in comparison to the outstanding legal issues which have been exposed by the Covid-19 pandemic. The Day Report, published in September 2020, suggests a shift in government policy. This publication makes recommendations to abolish and replace the current system and offers key reforms in living conditions, delays and the issue of aged out separated children. A White Paper, published in February 2021, indicates that the government has taken much of these recommendations on board. However, it remains to be seen if the necessary political will needed to implement these recommendations is sustained, to ensure that the proposed abolition date of 2024 is achieved.
1. Reform Prior to 2020
Loyal and Quilley identify the policy rationale behind the Direct Provision system as deterring further immigration and controlling and managing applicants already in the country.[2] This aligns with the Irish state’s history of institutionalisation and policies of ‘othering.’[3] Three key areas have seen positive change prior to 2020. The system was outlined in legislation, a Supreme Court declaration in NVH v Minister for Justice[4] heldthat prohibition against the right to work was unconstitutional and the Direct Provision Allowance was doubled between 2016 and now, increasing first in 2016 and again in 2018. These limited reforms demonstrate that positive change can be achieved where and the necessary political will is present.
2. The Day Report
Within the past seven years two reports have been commissioned to provide reform recommendations to the State: the McMahon Report (2015) and the Day Report (September 2020). The remit of both working groups differed; the McMahon Report Group were only permitted to suggest improvements, while the Day Report was charged with providing a complete overhaul of the system.[5] The Day Report highlighted how the State has failed its human rights obligations to international protection seekers including the rights to suitable accommodation, health, privacy and children’s rights.[6]
2.1 Obstacles to the Right to Work
Certain obstacles remain preventing international protection applicants exercising the right to work. Many lack sufficient ID to open bank accounts and only those who have not received a first instance decision have the right to work. Applicants appealing decisions may not access the labour market.[7] Equally, administrative barriers such as difficulties in obtaining PPS numbers, having work permits recognised and institutional racism curtail the right.[8] The independent advocacy group MASI recommends the State allow a full right to work immediately upon claiming asylum, mirroring the right to work of an Irish citizen.[9] This would be more in keeping with the spirit of the decision in NVH.[10]
2.2 Living Conditions
The Day Report detailed the unacceptable living conditions within the system. There are currently forty four accommodation centres and one reception centre, with only seven being state owned.[11] All centres are managed by private sector contractors, who, given their prioritisation of profit over a rights-based service, are unfit for providing what is a public law obligation. Compounding this, due to capacity issues, the state has provided emergency hotel and guesthouse accommodation to protection seekers since 2018. Issues relating to emergency accommodation include being moved at weekends to make way for commercial guests, isolation, failure to place children in education, lack of play areas, adults sharing beds with strangers and insufficient provision of toiletries.[12]
2.3 The Impact of Covid-19
The Covid-19 pandemic has exposed the serious health risks of the congregated conditions in centres, directly contravening the Chief Medical Officer’s advice on social distancing. A lack of own door accommodation means families cannot protect themselves from the virus.[13] The average positivity rate for the Covid-19 virus in a Direct Provision centre is four times that of the general public. A stark example can be seen in the centre recently set up in Cahersiveen in which twenty five per cent of the centre’s residents tested positive.[14] This suggests a double standard of the right to health in Ireland, with citizens entitled to benefit from public health measures while non-citizens are not.[15] Such disparity was further evidenced by a continuing disregard for the right to work of migrants, with the Pandemic Unemployment Payment only made available to those living in Direct Provision five months after it was available for citizens.[16]
The recommendations made by the Day Report include providing humane reception conditions, replacing congregated living conditions with own door accommodation and housing within three months of application. The report also recommended a vulnerability and special needs assessment on arrival to inform requirements for accommodation and early access to legal advice.[17] An increased focus on integration was highly emphasised, to combat feelings of isolation and dependency within the system.[18]
2.4 Delays
Another key concern of the Day Report was length of time spent in the system. In July 2020, over seven thousand people were living in Direct Provision, with thirty per cent resident for between three and fourteen years. The mental health cost is astounding, with ninety per cent of asylum seekers suffering from depression and being five times more likely than Irish citizens to be diagnosed with a psychiatric illness.[19] The Day Report recommended a six month deadline for first instance decisions followed by a further six months for appeals. Equally, it recommends completing all legacy backlog during a transition period to a new system, learning from the mistakes made following the introduction of the 2015 Act. A new IT procedure, staff training and recruitment would also be required.[20]
2.5 Rights of Children
The issue of aged out separated children demonstrates another area of double standards. The Ombudsman for Children has categorically stated that Direct Provision does not have the best interests of children or the promotion of the human rights of child refugees at its core.[21] There is a clear ‘us-them’ dichotomy at play between the Tusla support given to citizen and non-citizen minors,[22] with these young people often placed directly into a Direct Provision centre upon turning 18.[23] Rather than provide the requisite care for these highly vulnerable young people, the current policy is to prepare them for the isolation of Direct Provision. These young people are arbitrarily assigned to a centre with no regard given to access to educational needs or their former foster families.[24] The Day Report calls for aged out minors to retain Tusla support until their status has been determined.[25]
3. Government and Civil Society Response to the Report
Despite the delay of the Day Report to allow speedy publication of a government White Paper by the end of 2020, this paper was delayed until February 2021.[26]At time of writing, the Programme Board to oversee implementation of the White Paper is yet to begin its work. The White Paper appears to have adopted many of the Report’s recommendations, particularly the need to replace Direct Provision with a rights based system and focused integration from day one .[27] Civil society response to the White Paper was generally positive, with the Immigrant Council describing it as a ‘seismic shift.’[28] Recommendations included in the White Paper include granting leave to remain for those in the system for more than two years, own door accommodation for all residents and the likelihood the system will remain in place for the remainder of the pandemic.[29]However, criticism has been levelled concerning the failure to adopt key recommendations. The Irish Refugee Council has expressed concern that seventy per cent of the Day Report Recommendations have been partially adopted, delayed or not adopted at all.[30] A general criticism is the lack of speed in making the necessary changes within the proposed time frame, particularly tackling the backlog of applications and introducing a human rights based, effective system of accommodation.
Over two decades of Direct Provision demonstrates how meaningful progress towards creating a fairer international protection system can be achieved with the necessary political will. It is equally clear this will has too often been lacking. It is hoped the momentum generated by the Day Report and the White Paper will be sustained by the State to bring about a swift conclusion to Direct Provision and ensure the most vulnerable in our society have access to the rights to which they are entitled, regardless of citizenship, by virtue of our common humanity.
[1]Oireachtas Library and Research Service, Spotlight – Direct Provision (2020) 1.
[2]Steven Loyal and Stephen Quilley, ‘Categories of State Control: Asylum Seekers and the Direct Provision and Dispersal System in Ireland’ (2016) 43 Social Justice 69, 70.
[3]Ibid 77.
[4] [2017] IESC 35
[5]Muireann Ní Raghallaigh and Liam Thornton, ‘Vulnerable Childhood, vulnerable adulthood: Direct provision as aftercare for aged-out separated children seeking asylum in Ireland’ (2017) 37(3) Critical Social Policy 386, 395.
[6]Opinion of Counsel from Cillian Bracken BL and Michael Lynn SC to Irish Refugee Council re Covid-19 FAQs for those in State-provided Accommodation (8 April 2020) 8-19
[7]Advisory Group on the Provision of Support including Accommodation to Persons in the International Protection Process Final Report (2020) 76-77, Sorcha Pollack, ‘Give asylum seekers ID to open bank accounts’ The Irish Times (Dublin, 5 January 2021)
[8] Irish Human Rights and Equality Commission White Paper Submission (2020) 9.
[9]Movement of Asylum Seekers in Ireland, ‘Statement on the Publication of the Catherine Day Advisory Group Report’ (2020) 4.
[10] [2017] IESC 35.
[11] Ibid 20.
[12]Irish Human Rights and Equality Commission, Ireland and the Convention on the Elimination of Racial Discrimination: Submission to the United Nations Committee on the Eliminiation of Racial Discrimination on Ireland’s Combined 5th-9th Report (2019) CERD 114.
[13]Irish Refugee Council, Submission to the Special Committee on Covid 19 (2020) 2.
[14]Egle Gusciute, ‘Leaving the most vulnerable behind: Reflection on the Covid-19 pandemic and Direct Provision in Ireland (2020) 28(2) Irish Journal of Sociology 237, 238-239.
[15] Irish Refugee Council(no 27), 3.
[16] Liam Thornton, ‘Challenging the Unlawful Exclusion of Asylum Seekers from Pandemic Unemployment Payment’ (Liam Thornton Exploring Law, Exploring Rights 4 June2020) <https://liamthornton.ie/2020/06/04/challenging-the-unlawful-exclusion-of-asylum-seekers-from-pandemic-unemployment-payment/ > accessed 14 January 2021.
[17]Advisory Group (n 14) 74.
[18] Ibid 8.
[19] Loyal and Quilley (no 2), 74
[20] Advisory Group (no 14) 57
[21] The Ombudsman For Children’s Office Safety and Welfare of Children in Direct Provision; An Investigation by the Ombudsman for Children’s Office (2021) 4, 34 <https://www.oco.ie/app/uploads/2021/04/Safety-and-Welfare-of-children-in-Direct-Provision.pdf> accessed 28 May 2021.
[22] ibid, 44.
[23] Ní Raghallaigh and Thornton (no 22) 392.
[24] Ní Raghallaigh and Thornton (no 27) 396.
[25] Advisory Group (n 14) 70.
[26] Cónal Thomas, ‘Government’s plan for ending Direct Provision delayed until February 2021’ The Journal (Dublin 16 December 2020) <https://www.thejournal.ie/governments-plan-for-ending-direct-provision-delayed-until-february-2021-5300684-Dec2020/> Accessed 16 January 2021.
[27] Department of Children, Equality, Disability, Integration and Youth, A White Paper to End Direct Provision and to Establish a New International Protection Support Service (26 February 2021) 28.
[28] Immigrant Council of Ireland, ‘Reaction to Government White Paper on dismantling Direct Provision (26 February 2021) <https://www.immigrantcouncil.ie/news/immigrant-council-ireland-reaction-government-white-paper-dismantling-direct-provision> (accessed 3 March 2021).
[29] Amnesty International, ‘White Paper A Real Chance At Ending Direct Provision After 21 Years’ (26 February 2021) <https://www.amnesty.ie/white-paper-ending-direct-provision/> (accessed 3 March 2021).
[30] Irish Refugee Council, Implementing Alternatives to Direct Provision Report Series; Report Number 2 Advisory Group and White Paper Recommendations compared (May 2021) 30 <https://irishrefugeecouncil.eu.rit.org.uk/Handlers/Download.ashx?IDMF=80387df6-446e-4506-a6da-f6087278bb85> (accessed 28 May 2021).
Sutherland Symposium 