Guest piece by Dr Liam Thornton: Ireland to opt-in to EU Reception Conditions Directive – what will this mean for asylum seekers?

Dr Liam Thornton is an assistant professor in UCD School of Law. Liam regularly contributes to public debate on issues relating to Irish law and human rights at www.liamthornton.ie.

The Free Legal Advice Centres report, Direct Discrimination?, was one of the first legal evaluations of the system of direct provision and the rights of asylum seekers. This 2003 report could be reproduced almost verbatim today, and still be of relevance to policy makers and rights advocates. For eighteen years, the direct provision system existed in a state of legal limbo, with no legislative basis for this system. In the intervening years since FLAC’s seminal 2003 Report, we had the Ombudsman, the Irish Human Rights and Equality Commission (IHREC), the Ombudsman for Children (OCO), the Child Rapporteur, countless civil society organisations, media investigations and a huge number of documentaries on the system of direct provision. At the international level, we had various UN human rights bodies note the detrimental impacts that the system of direct provision has, in particular on asylum seekers socio-economic rights. Since the introduction of direct provision in April 2000, the weekly payment to asylum seekers has existed on a non-legislative basis, and now stands at €21.60 per week per adult and child.

Throughout this time, several political parties who opposed the system in opposition, became its most vocal supporters in government, and vice-versa. From its establishment by the Fianna Fail/Progressive Democrat coalition, direct provision was expanded by the Fianna Fail/ Green Party coalition. The Fine Gael/Labour coalition saw direct provision as necessary to the integrity of the State’s asylum system. Very few political parties can claim the high moral ground on how Ireland treats asylum seekers. The real test of political resolve on direct provision cannot be tested by platitudes’ while in opposition, nor “yes equality moment” reports completed, but of course not implemented. The stark reality is that Ireland has a miniscule number of persons seeking asylum, yet the system of direct provision continues to grow. The backlogs in applicants, whereby asylum seekers on average must wait 20 months before their first interview before the International Protection Office, will eventually see similar delays at the International Protection Appeals Tribunal.

This sorry state of affairs, whereby the Oireachtas barred asylum seekers from working, and withdrew rights to practically all social welfare payments, was upheld by the High Court in 2013. Therefore, the fact that Ireland will now opt-in to the EU’s Reception Directive is exceptionally welcome. This decision to opt-in was promoted by the Supreme Court’s decision that the absolute prohibition on asylum seekers entering employment will be declared unconstitutional on 9 February 2018. The interim scheme on the right to work, that will be applicable until Ireland completes the opt-in process, is concerning, from a legal and human rights perspective. Going passed the exceptionally limited interim right to work, how will the rights of asylum seekers improve post the opt-in, which should occur by May/June 2018?

The EU Reception Directive is far from perfect, but Ireland’s opt-in is highly preferable to the non-legislative nature of direct provision that has existed until now. The EU Reception Directive will, in my view require a number of actions that will have to happen prior to Ireland’s opt-in:

1. The right to work for asylum seekers will have to be greatly strengthened, well beyond the interim scheme on the right to work. This must include the right for asylum seekers to effectively access the labour market. Ireland will have to determine the time period within which asylum seekers will have to wait before accessing the labour market. This cannot be more than 9 months, where an asylum seeker has not yet received a decision on her protection status.
2. There will have to be an evaluation of the current rate of direct provision allowance for asylum seekers. The EU Reception Directive does not set down precise rates of cash allowances for asylum seekers. However, where a State does grant cash allowances, it must be at a level which respects the minimum dignity of each individual. Dignity is measured with respect to the particular EU Member State. The (general) lowest rate of full social assistance payment, once a person is over 25, is €191.00 per week. The direct provision payment of €21.60 is just over 10% of this payment. How this could be seen as dignified is questionable.
3. A system will have to be established to identify particularly vulnerable asylum seekers. Vulnerable asylum seekers are defined in an non-exhaustive manner by the EU Reception Directive, and includes children, separated children, victims of torture, pregnant women, persons who were likely subjected to human trafficking, those who likely suffered torture or sexual violence. Once a person is recognised as vulnerable, she will then be entitled to special reception conditions. While the modalities of these special conditions are not fully outlined in the Directive, questions will emerge as to whether direct provision is a suitable system to recognise particularly vulnerable asylum seekers additional needs. Therefore, it will be interesting to see how Ireland transposes these obligations.
4. There may have to be changes within Ireland’s system of direct provision accommodation  centres. EU law does not prohibit the use of bed and board accommodation within specific asylum centres. However, once used, these centres must adequately protect family life. It is highly questionable whether family life can truly be protected within a highly structured direct provision system.
5. Finally, the opt-in to EU law is important, as it will finally provide some legal basis for Ireland’s treatment of asylum seekers. Some may see this as mere legal nicety. For the first time, the Oireachtas has given the Government permission to legislate for the rights of asylum seekers. It is hoped that some debate and discussion will take place on the statutory instrument that will be used to transpose the EU Reception Directive into Irish law.