The transposition of the Reception Conditions Directive
Until 2018, Ireland had not been party to the Reception Conditions Directive. The Minister for Justice and Equality stated in March 2013 that the reason for the opt out was Article 11 of the Directive – Article 15 of its 2013 recast – which states that if a decision at first instance has not been taken within one year (now nine months) of the presentation of an application for asylum, and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant. The Minister stated that ‘this is contrary to the existing statutory position in Ireland which provides that an asylum seeker shall not seek or enter employment. Extending the right to work to protection applicants would almost certainly have a profoundly negative impact on application numbers, as was experienced in the aftermath of the July 1999 decision to do so.’
However, the Supreme Court in its judgment in N.V.H. v. Minister for Justice and Equality, which dealt with the situation of an asylum seeker who had been living in Direct Provision for eight years with no access to employment, declared that the indefinite prohibition on employment for people in the asylum process was unconstitutional. The Court provided the State with a six-month period within which to review the ban on employment (see Access to the Labour Market) and to make proposals for providing effective access to the labour market for people in the asylum process. In its response, the Government announced on 22 November 2017 that it would opt in to the recast Reception Conditions Directive.
While the prohibition on seeking employment was struck down on 9 February 2018, opt in to the Directive was only crystallised by the adoption of the European Communities (Reception Conditions) Regulations 2018 on 6 July 2018. Transposition was done by way of secondary legislation, a statutory instrument, enacted by the Minister for Justice and Equality
Although this has placed the reception system on a legislative footing for the first time, the practice which preceded the Regulations continues to govern the approach to reception for people seeking international protection. In July 2019, the Irish Refugee Council published a report analysing the transposition of the Directive one year later. Particular concerns were the absence of a vulnerability assessment and the rapid increase in the number of people dispersed to ad hoc emergency accommodation premises due to the lack of available bed spaces in Direct Provision accommodation.
The “McMahon Report” and Direct Provision reform
In relation to the establishment of a Working Group on the Protection Process and Direct Provision that the Report on the Working Group to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers was published in June 2015 and included over 170 recommendations. It represented the first review of the protection process since the establishment of the Direct Provision system 15 years ago. The Chair of the Working Group, Bryan McMahon, on publication of the report stated that the “single most important issue to be resolved was the length of time that many of those in the system have to wait before their cases are finally determined.” Former Minister Fitzgerald in launching the report acknowledged that successful implementation of key recommendations is dependent on the early enactment of the IPA.
To date, the Government has published three progress reports on the implementation of these recommendations, with the final report having been published in July 2017. On releasing the report, Minister for Justice Charlie Flanagan stated that “133 recommendations have been reported as fully implemented and a further 36 are in progress or partially implemented. This represents 98% full or partial implementation.” However, the organisation Nasc the Migrant and Refugee Rights conducted an independent review of the implementation progress and published their findings in a working paper on the 18 December 2017. Their findings suggest that in reality only 20 of the 170 Working Group Report recommendations could be verified as implemented, with 51% of the recommendations fully or partially implemented, noting poor implementation particularly among recommendations for which responsibility lies with agencies other than the Department of Justice (such as the Health Service Executive, for example). Key concerns emerging from the Nasc review of the implementation progress, which contradict the official progress reports include: lack of regard for children’s rights, including the principle of the best interests of the child; slow and ad hoc implementation of recommendations relating to cooking and living spaces; persistent delays in the international protection process, and the lack of a multidisciplinary approach to identification of vulnerabilities.
In 2018, building on the Report on the Working Group to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers, the Working Group on National Standards produced a draft document consisting of a set of proposed national standards for accommodation centres in Ireland. The National Standards aim to introduce further reforms of the Direct Provision system. The National Standards were subject to a public consultation process which closed on 25 September 2018. The final draft of the Standards were published in August 2019.
The National Standards are designed to constitute a set of standardised rules for every Direct Provision accommodation in Ireland. The draft National Standards cover ten themes including:
- Governance, Accountability and Leadership
- Responsive Workforce
- Contingency Planning and Emergency Preparedness
- Food, Catering and Cooking Facilities
- Person Centred Care and Support
- Individual, Family and Community Life
- Safeguarding and Protection
- Health, Wellbeing and Development
- Identification, Assessment and Response to Special Needs
The National Standards are aimed at the private operators of Direct Provision centres. They are, however, distinct from the tendering process and contractual relationship between private actors and IPAS. Furthermore, the mechanism for assessing adherence to the National Standards is a self-auditing process. There is no provision for oversight of adherence by IPAS or any independent monitoring body. While an important next step to the reforms proposed by the McMahon report, compliance with the National Standards, as currently proposed, lacks any oversight or enforcement mechanism which may undermine their usefulness. While welcoming the introduction of a set of coherent accommodation standards, the Irish Refugee Council expressed concern at the lack of accountability mechanisms in its submission to the Standards Advisory Committee during the public consultation.
In November 2019, the Government announced a new expert advisory group to look at a ‘long term approach to how people seeking asylum are accommodated and supported’. The group, which is being chaired by former European Commission secretary general Catherine Day, will report to the Government on potential long-term approaches to accommodating protection applicants by the end of 2020.
Joint Committee on Justice and Equality
In December 2019, the Joint Committee on Justice and Equality of the Oireachtas published the ‘Report on Direct Provision and the International Protection Application Process December 2019’. This report calls for a fundamental reform of the Direct Provision system and describes it as ‘not fit for purpose’.
The members of the Committee found that ‘shared, institutionalised living fails to fully respect the rights to privacy and human dignity of those placed in these centres’. The issues pointed out in the report of the all-party group include:
- Inadequate support and services that do not cater to the needs of vulnerable individuals arriving in Ireland;
- Long delays in the single application process;
- Issues with accessing the labour market; and
- Issues relating to children in the Direct Provision system.
The report makes 43 conclusions and recommendations and follows a series of public hearings with stakeholder groups and the receipt of more than 140 written submissions and visits by the Committee to Direct Provision centres in Mosney and Monaghan. Amongst its recommendations there is the change to ‘own door’ accommodation units for individuals and families; leaving behind the current ‘for profit’ running of direct provision, and the involvement of approved housing bodies in the provision of accommodation and services.
Committee for the Elimination of Racial Discrimination
In 2019, the UN Committee for the Elimination of Racial Discrimination (CERD) in its Concluding observations on the combined fifth to ninth reports of Ireland expressed its concerns about Ireland’s Direct Provision system, referring to its continuous failure to provide adequate accommodation for protection applicants and in particular regarding:
(a) The lengthy stay in inadequate living conditions in Direct Provision centres and its significant impact on mental health and family life of protection applicants;
(b) The operation of Direct Provision centres by private actors on a for-profit basis without proper regulation or accountability mechanisms;
(c) The extensive use of emergency accommodation for lengthy periods due to the capacity limit of Direct Provision centres and the housing crisis, the substandard living conditions of emergency accommodation and the lack of necessary services and support provided therein;
(d) The reported lack of transparency regarding the deaths of persons residing in these centres (art.5).
After expressing such concerns the CERD made the recommendation to Ireland to phase out the Direct Provision system and develop an alternative reception model, with a series of interim measures:
(a) Improve living conditions in Direct Provision centres and reduce the length of stay in the centres;
(b) Set up clear standards of reception conditions for Direct Provision centres; regulate and inspect the operation of Direct Provision centres; and hold those responsible accountable in case of breach of standards;
(c) Halt the emergency accommodation as soon as possible and develop a contingency planning framework with a view to effectively responding to capacity pressures;
(d) Ensure transparency regarding the deaths in Direct Provision centres and collect and publish data on the deaths in the centres.
The Chapter: Reception Conditions in Ireland contains sections on: