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Column: The time has come to end the system of Direct Provision

The Irish system of direct provision has been judged to be conducive to “enforced isolation and poverty” – we must put an end to it, write Claire Cumiskey and Fiona Hurley.

Claire Cumiskey and Fiona Hurley

IN RECENT MONTHS, Direct Provision, the Irish State’s system of providing board and accommodation in designated hostels to asylum seekers, has come under an increasing amount of criticism, drawing parallels with the Magdalene Laundries.

The system was introduced in 2000 and it was originally envisaged that asylum seekers would stay in direct provision for no longer than six months.  However, figures from 2011 show that over 10 per cent of those in direct provision have been there for seven years or more.

The Ombudsman, Emily O’Reilly, recently described the system as ‘unacceptable’.  She concluded that this treatment represented ‘a collective failure of a republic which needs to re-engage with what ought to be its core values’. O’Reilly’s comments followed similar concerns being raised by numerous commentators, including retired Supreme Court Judge Catherine McGuinness, various United Nations Committees and NGOs who work with asylum seekers in Ireland.

In response to O’Reilly’s scathing assessment of the treatment of asylum seekers in Ireland, the Minister from Justice Alan Shatter defended the system and stated that: “In reality, the system in this State is at least on a par and often significantly better than that in operation in many other member states. In the circumstances, it is grossly misleading to characterise our treatment of asylum seekers as being akin to that meted out to subjects of abuse who had no protection of the law or relevant State bodies.”

Drawing the attention of the UK courts

The failings of the Irish system has now to the attention of the UK courts, following a case taken by a Sudanese family of asylum seekers in the High Court of Northern Ireland.  The family sought an order to prevent their removal from Northern Ireland to the Republic of Ireland in accordance with common European asylum measures (the Dublin II Regulations). In essence the court found that, because of the deficiencies of the Irish system, the best interests of the children in the case would not be served by removing them to Ireland.

The Northern Ireland judgement clearly points to the fact that we are completely out of step with the UK in how we protect the best interests of our asylum-seeking children.

The Sudanese family, consisting of a mother (known as ALJ), her 18-year-old son and two other minor children had made an application for asylum in the Republic of Ireland in May 2010. Their application for refugee status was based on their fear of persecution arising from their status as non-Arab Darfuris and her political activities as a journalist in Sudan.

The application was ultimately refused and an appeal to the Refugee Appeals Tribunal in 2011 also proved unsuccessful. The family were issued a letter (a proposal to deport) informing that the Minister had refused to give them refugee status, that their legal entitlement to remain in the State had expired and outlined the options remaining to them. On 11th July 2011 the family crossed the border into Northern Ireland and sought to make an application for asylum there. In October 2011 the UK Border Agency (UKBA) directed the family to return to Ireland, based on Dublin II Regulations.

Failings of the Irish system “disturbing”

The case before the Northern Ireland High Court was a judicial review of the UKBA’s decision on the grounds that the system of refugee and protection status determination in Ireland, with its disproportionately low rates of recognition (1.3 per cent in ROI compared with 24 per cent in UK) and the system of direct provision would constitute a breach of their rights under the European Charter of Fundamental Rights. Although Justice Stephens was unprepared to find that there were “systemic deficiencies” in the Irish statutory system, he admitted that he found the evidence documenting the failings of the Irish system “disturbing”.

The decision to quash the order was based on the ‘best interests of the child’ test. The judgment examines the situation that would await the applicant children if they were to be returned to Ireland and finds that it compares unfavourably to the system in Northern Ireland. Justice Stephens was particularly concerned at the impact that a return to shared hostel accommodation would have on the children and their ability to “interact with each other as a normal family.”

The Irish system of direct provision was judged to be conducive to “enforced isolation and poverty”, and he cites “ample evidence of physical and mental health issues developing in Ireland amongst those asylum seekers who are in Direct Provision accommodation.” The long delays and the years of litigation the children would face in Ireland compared to a relatively simple process in Northern are also referenced in the judgement.

Finally, Justice Stephens finds that Ireland does not achieve EU wide standards on the treatment of asylum seekers. This is a damning indictment of our system by our nearest neighbours.

Challenging the system of direct provision

The Northern Ireland High Court is not alone in its criticism of the Irish statutory system. The Irish Supreme Court have voiced their frustrations at the system in two cases cited in Mr. Justice Stephens’ judgement, Nawaz v Minister for Justice, Equality and Law Reform (2012) and Okunade v Minister for Justice Equality and Law Reform (2012).  Also, the Irish High Court will shortly have its say in an upcoming application for Judicial Review, lodged by six asylum seekers, including children, challenging the system of direct provision.

The family, who have been in the system for approximately four and a half years, will argue that direct provision has no legal basis and amounts to a violation of the Irish Constitution and the European Convention on Human Rights. The family will also argue that the exclusion of asylum seekers from social protection and the denial of the right to work pending the outcome of a decision breaches their constitutional and human rights.  This case has the potential to signal the end of the direct provision system.

Living with the consequences of a broken system daily

In our work, we at Nasc, the Irish Immigrant Support Centre find this story unfortunately all too commonplace. We work with countless families who are living with the consequences of this broken system daily. We have long called for a number of measures to be put in place which would, firstly, dramatically reduce the wait time for asylum seekers to have a final decision made on their protection claims; and secondly, dramatically improve living conditions by offering an alternative to direct provision centres.

The existing protection system – a three step structure – should be replaced with a ‘single procedures mechanism’ which would allow all the different applications to be made and examined concurrently, thereby minimising the amount of time an asylum seeker has to remain in direct provision as well as the need for such frequent recourse to the High Court. In addition, Ireland should opt in to Directive 2003/9/EC (commonly known as the Minimum Standards or Reception Directive), which lays down minimum standards for the reception of asylumseekers and includes a limited right to work.

We believe that these are realistic and achievable steps which would greatly improve conditions for asylum seekers and bring us in line with our EU counterparts.

Institutional living in Ireland

The implications of the Northern Ireland High Court judgement are potentially far-reaching. The judgement, coupled with the pending case before the Irish High Court, may have a profound impact on the asylum system in Ireland. The urgency of reforming this area cannot be overstated as the length of time people reside in direct provision continues to increase.

The safety of children accommodated within the centre should be of paramount concern. Statistics referred to in the most recent annual report of The Reception and Integration Agency (RIA) record 121 incidents in 2012 involving children. Alarmingly these cases include seven cases of inappropriate sexualised behaviour and seven cases of the physical abuse of children. When viewed as a yardstick as to the extent to which we value our children in the State, the current treatment of asylum seeking children in Ireland is nothing short of shameful.

It remains to be seen if we will right the wrongs of our past when dealing with the treatment of those who have been subjected to institutional living.  The Irish Government must urgently end the continued institutionalisation of asylum seekers in Ireland.

Claire Cumiskey and Fiona Hurley are Legal Officers at Nasc, the Irish Immigrant Support Centre.

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Claire Cumiskey and Fiona Hurley

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