Focusing on the positives from the High Court Decision on Direct Provision

Fri, November 28, 2014

Criminal-JusticeControversy surrounding how we treat our asylum seekers in Ireland through the system of direct provision was once again thrust into the spotlight by way of a recent High Court decision. The decision in C.A. and T.A (a minor) v Minister for Justice and Equality, Minister for Social Protection, the Attorney General and Ireland comes at an opportune time as the debate surrounding reception conditions for asylum seekers in Ireland deepens and as the system of direct provision itself is currently the subject of a Department of Justice appointed working group. This High Court decision is a landmark ruling as it is the first time that State treatment of asylum seekers has received such a degree of judicial scrutiny.

While asylum seekers, their supporters and human rights advocates may be deeply disappointed by the final judgement as it found that the system of direct provision, as it applied to the applicant in this particular case, did not breach human rights such as, the prohibition on inhumane and degrading treatment, the right to liberty and security and the right to a private and family life, many positives can be taken from this judgement.

The conditions imposed upon asylum seekers residing in direct provision centres through the Reception and Integration Agency’s (RIA) House Rules were scrutinised in depth by the Court. The judge found in favour of the applicants’ arguments in relation to some of the requirements contained in the House Rules that asylum seekers are required to comply with when living in direct provision accommodation centres.

The Court found that the bedroom of the asylum seeker in this case constituted their home and was therefore protected by the Irish Constitution and the European Convention on Human Rights. The judgement contains what could be interpreted as damning findings in relation to how the daily lives of our asylum seekers are monitored by the Reception and Integration Agency. The judge found that unannounced room inspections, daily sign-in and notification of intended absence requirements along with the complete ban on having guests in one’s bedroom was found to be disproportionate and unlawful.

Nasc has assisted numerous asylum seekers who have become homeless as a result of their failure to comply with daily sign in requirements and have heard first hand from asylum seekers over the years about how isolated they feel within the current system. The Court’s findings in relation to the RIA ‘House Rules’ can only be welcomed as it finally vindicates the views that many asylum seekers have continually expressed.

The Court also found that the current lack of an independent complaints mechanism was unlawful. This is an extremely welcome development and something that Nasc has long advocated for. In our experience many asylum seekers have been afraid or unwilling to voice any complaints about their treatment in direct provision. Their reluctance to complain more often than not stemmed from a belief that they would be targeted by the management of the centre or RIA.

We will continue to advocate for the introduction of an independent complaints mechanism that ensures adherence to fair procedures and principles of natural justice. The Ombudsman’s remit does not currently extend to complaints arising from RIA direct provision accommodation. To date, and despite calls from NGOs to extend the Ombudsman’s remit to this area, there has been an absence of political will to address this issue and allow asylum seekers to present their cases relating to issues arising from RIA accommodation to the Ombudsman.

It is worth noting that the Court’s findings for the State in relation to the alleged breaches of human rights, in particular relating to the right to a private and family life, can be confined to the facts of this particular case and the evidence or lack thereof presented to the Court relating to the impact that direct provision accommodation had on the applicant and her minor son. Indeed, the judge did state that ‘though my instinct tells me that ‘direct provision’ is not an ideal environment for rearing children…..’ he found that the lack of evidence presented to the Court by the applicant in relation to the interference with their private and family life as a result of direct provision did not constitute a breach of rights.

The lack of political will to push through any significant changes to the system of direct provision to date means that asylum seekers will continue to be forced to bring challenges before the Courts, and it remains to be seen how future litigation in this area will progress. Reliance on lengthy and costly judicial action as a mechanism for changing the system of direct provision can be avoided if there is political recognition and clear action to directly address the dysfunctionality of the current system.

The establishment of the Working Group on direct provision and the protection system is a welcome first step in this process, and as a member of the Working Group we remain hopeful that this process will bring about much needed improvements. However the change that needs to happen goes well beyond the remit of the Working Group, and we will continue to work with asylum seekers and with our NGO partners to push for an end to the system of direct provision

Claire Cumiskey, Senior Legal Officer
Nasc, the Irish Immigrant Support Centre