All change for asylum seekers?

"There are some potential positive outcomes once Ireland becomes bound by the Reception Directive, though it will not necessarily bring an end the system of direct provision"

Opinion: Ireland is set to opt-in to the EU Reception Directive which will mean many changes to the rights of asylum seekers living here

By Dr Liam Thornton, UCD

Today, Dáil Éireann and Seanad Éireann will discuss Ireland’s opt-in to the EU’s Reception Directive on the rights of asylum seekers. Over many years, the rights of asylum seekers in Ireland have been subject to significant comment and controversy. The numbers of asylum seekers remaining in direct provision accommodation for exceptionally long periods of time fell dramatically post the publication of the McMahon Report in June 2015. Amongst other things, the report made a number of recommendations for improving the rights of asylum seekers in direct provision in Ireland.

However, 42 percent of the 5,353 asylum seekers in direct provision accommodation at the end of November 2017 have been in direct provision for two years or more. The numbers remaining in direct provision for prolonged periods of time will increase dramatically in the next twelve months. There are significant delays in the International Protection Office, with many asylum seekers waiting 20 months before their interview to see whether or not they are in need of protection in Ireland. Unless there is significant investment in the International Protection Office, and the International Protection Appeals Tribunal, to ensure fair and timely decisions on asylum seekers protection claims, this 20 month delay may even increase further.

In May 2017, the Irish Supreme Court held that the absolute prohibition on the right to work for asylum seekers contained in the (now repealed) Refugee Act 1996, was unconstitutional. Come February 9th 2018 however, the Supreme Court has stated that they will not provide any more time for the Government to get its house in order and legislate for the rights of asylum seekers to work.

RTÉ News report on the Supreme Court's decision that the bar on asylum seekers' right to work was unconstitutional

In late November 2017, the Minister for Justice and Equality, Charlie Flanagan, indicated that Ireland will opt-in to the European Union’s Reception Directive on the rights of asylum seekers. This is a new departure in and of itself. For almost two decades governments of various hues had steadfastly refused to opt into this directive, asylum and immigration law being one of the few areas of EU law that Ireland has a choice as to whether it will be bound or not.

The core reasons for declining to be bound by this directive previously were due to the existence of the Common Travel Area and a steadfast government policy that asylum seekers should not be permitted to work. Both rationales were based on a desire to keep the number of persons seeking asylum in Ireland low. As per constitutional requirements, the Dáil and Seanad will now have to both pass motions consenting to Ireland’s opt-in to the EU Reception Directive. In addition, the European Commission will have to be satisfied that Irish law is in conformity with the directive before we can opt-in. None of this will be completed by February 9th, in spite of the Government having warning since May 2017.

Like most measures of incorporation of EU law here, it now appears certain that the Reception Directive will be transposed by the Minister for Justice and Equality by means of a statutory instrument. While this is permitted by the Constitution, I would suggest that the best course of action would be for the Dáil and Seanad to insist on an Act of the Oireachtas in implementing the EU’s Reception Directive. It was the Oireachtas which insisted that asylum seekers did not have the right to work and it was the Oireachtas which prevents asylum seekers from accessing most social welfare payments.

From RTÉ Radio One's Marian Finucane Show, Ellie and Isabelle Kisyombe talk about life as an asylum seeker in Ireland

However, the Oireachtas never established the system of direct provision accommodation centres. The Oireachtas never set the weekly payment asylum seekers receive at €21.60 per adult and per child. The system of direct provision accommodation and asylum seekers weekly payment are established by private circulars and rubber stamped by the respective government ministers.

Therefore, it is imperative, in particular with the current composition of the Oireachtas, that a full and detailed parliamentary debate occurs on how Ireland should legislate to protect the rights of asylum seekers. The McMahon Report saw representatives from civil society organisations, the United Nations High Commission for Refugees, government officials and one asylum seeker discuss and make recommendations on improvements to the direct provision system. Our elected representatives, who did debate these recommendations, have washed their hands of legislating for the rights of asylum seekers for too long.

There are some potential positive outcomes once Ireland becomes bound by the Reception Directive, though it will not necessarily bring an end to the system of direct provision. Irish law will have to protect the right to work for those asylum seekers who have not had their asylum claim determined within nine months.

From RTÉ News, Helen Donohoe reports on concerns over the proposed right-to-work changes

However, the right to work can be restricted. Last week, the Minister for Justice & Equality, Charlie Flanagan T.D. indicated how the State will respond to the Supreme Court’s May 2017 decision pre Ireland’s opt in to the EU Reception Directive. If an asylum seeker wishes to enter PAYE employment, then strict conditions as to the type and form of employment will apply. The position must not be able to be filled by an EU citizen or a person with full migration permission in Ireland. The position must generally pay over €30,000 per annum. There are more than 70 employment sectors which asylum seekers will be prohibited from seeking or entering employment in. The freedom for asylum seekers to enter self-employment seems less restrictive. However, very little detail is provided on how this right to enter self-employment will be exercised beyond an administrative scheme operated by the Department of Justice.

A key question emerges: is this interim scheme on the right to work for asylum seekers in line with the Supreme Court’s decision on the right to work for asylum seekers? It is worth recalling the factual matrix that the Supreme Court determined that the absolute prohibition on asylum seekers was unconstitutional. The applicant, Mr. NHV, was offered a position as a chef in a direct provision centre. This most likely would not have paid €30,000 per annum. In any event, as it was a non-specialist chef role, it comes within the prohibited employment sectors. So, a person today, in the same position as NHV, prior to Mr NHV’s recognition as a refugee, would not come within this interim right to work scheme.

Once the EU Reception Directive becomes part of Irish law in the coming months, asylum seekers will have a right to effective access to the labour market. I doubt that many of the interim right to work conditions would survive EU scrutiny. An Inter-Departmental Taskforce is now considering how the right to work for asylum seekers will look from the date of Ireland being bound by EU law in this area. For now Ireland (and the UK) have some of the most restrictive conditions for asylum seekers entering employment in the EU.

After almost 18 years of the system of direct provision and ancillary supports, legal light may finally be shone on the how we treat asylum seekers in Ireland

However, the EU Reception Directive grants asylum seekers more than simply a right to work. Once the EU Reception Directive does become law in Ireland, Ireland will be obliged to introduce a system to detect the needs of particularly vulnerable asylum seekers, and to provide special reception conditions in order to protect such people. Further protections must be extended to the small number of asylum seekers who are detained. The best interests of the child must now be infused in how Ireland treats accompanied and unaccompanied children in the direct provision system. The 2017 report of UCC Child Law Clinic which ascertained the views of children in direct provision, noted that children did not feel safe, felt excluded from Irish society, and condemned to a life of poverty. The changes recommended by children in direct provision in this report must now be taken seriously.

Ireland will have to ensure that the rate of the weekly direct provision allowance, €21.60, maintains dignity for asylum seekers. Given that the rate falls far short of the McMahon Report recommendations, of €38.60 per adult per week and €29.60 per child per week, there may be potential legal avenues of challenge should the rate of direct provision allowance remain the same.

However, the EU Reception Directive should not be seen as wholly human rights compliant. Rather, it provides a base minimum standard of material support that must be offered to all asylum seekers. Base minimums rarely comply with international human rights legal obligations. Nonetheless, it is a start. After almost 18 years of the system of direct provision and ancillary supports been provided by secret administrative circulars, legal light may finally be shone on the how we treat asylum seekers in Ireland.

Dr Liam Thornton is an assistant professor at the School of Law at UCD and writes on issues relating to human rights law and Ireland

The views expressed here are those of the author and do not represent or reflect the views of RTÉ