Author
The Reception Conditions Regulations provide that reception conditions can be reduced or withdrawn by the Minister of Justice in one of the following four situations, where the applicant:[1]
- Has not cooperated with the protection application such that the failure to take a first instance decision can be attributable in whole or in part to the applicant. The Regulations detail that delay can be attributed to the applicant when he or she: fails to make reasonable efforts to establish identity; acts in some way which causes delay to processing of applications without reasonable excuse; or otherwise fails to comply with an obligation relating to the asylum application.[2]
- Has not complied with some aspect of the asylum procedure. This ground is particularly vague as it refers to “an obligation under an enactment relating to the application” rather than any specific aspect of the IPA.[3] Hypothetically, this means that a failure to comply with any aspect of the application process – no matter how insignificant – could be a ground for reducing or withdrawing reception conditions, so long as the Minister is satisfied that the applicant has failed to provide a “reasonable excuse”.
- Has seriously breached the house rules of the place of accommodation.
- Has engaged in seriously violent behaviour. “Seriously violent behaviour” is not defined in the Regulations, which raises a question of when violent behaviour will reach the level of being sufficiently serious to warrant the reduction or withdrawal of reception conditions. It is therefore left to the Minister to determine when behaviour will meet the threshold of being “seriously violent”.
In addition to the Minister for Justice having power to reduce or withdraw reception conditions under the circumstances specified in the Regulations, the Minister for Employment Affairs and Social Protection is also empowered to reduce or withdraw the daily expenses allowance provided to a recipient on the same grounds.[4]
Both Ministers, when making a decision to withdraw or reduce reception conditions, must have regard to the individual circumstances of the recipient and, in particular, whether they are a vulnerable person.[5]
The Ministers must also have regard to any explanation provided by the recipient for the conduct which has been deemed to ground the reduction or withdrawal of reception conditions.[6]
The Regulations also provide that a decision to reduce or withdraw material reception conditions shall only be taken in exceptional circumstances where no other action can be taken to address the conduct of the recipient.[7]
Where a decision is taken to reduce or withdraw reception conditions, the Minister nonetheless must ensure the person in question has access to health care and a dignified standard of living, where the person does not have means to provide for themselves.[8] Since it is a requirement of the Regulations that a person will only receive material reception conditions where they do not have sufficient means to otherwise provide an adequate standard of living, it is unclear what safeguarding a dignified standard of living would entail in practice, outside of the Direct Provision system. Arguably, every person receiving material reception conditions would, by definition, require further assistance from the Minister to ensure they are not left destitute. Furthermore, the use of “dignified” rather than “adequate” standard of living in the drafting of this provision raises a question of whether a different standard would be applied to assistance provided to a person for whom reception conditions have been reduced or withdrawn. Neither term is defined which leaves no guidance on what this would entail in practice.
Decisions reducing or withdrawing reception conditions can be challenged by means of review before the Minister for Justice within ten working days,[9] or the Minister for Employment Affairs in case of reduction or withdrawal of the Direct Provision allowance.[10] The decision of the review officer can then be challenged before the IPAT within ten working days.[11] The IPAT has 15 working days to decide on the appeal.[12]
In 2019, the Ombudsman received five complaints about warning letters sent by IPAS for continued breach of House Rules prior to involuntary removals from accommodation centres.[13] In 2020, the Ombudsman received one such complaint.[14] Although it was pointed out that these letters only referred to allegations of a breach and the residents concerned had the option to engage with IPAS before things progressed,[15] in the Irish Refugee Council’s casework there have been instances of people being notified of their removal from accommodation centres due to unjustified absences, without being given any chance to provide an explanation. In 2021, the IPAT received 12 appeals in relation to decisions made under the European Communities (Reception Conditions) Regulations 2018.[16] In 2022, the IPAT received 5 appeals pursuant to the European Communities (Reception Conditions Regulations 2018.[17]
The Irish Refugee Council assisted several individuals who had their material reception conditions withdrawn after being refused re-entry to Direct Provision accommodation centres at the onset of the pandemic. This occurred in circumstances where clients had been absent from their centre for more than one night, in order to visit family or friends, or for the purposes of employment. In many cases, there was no written reasoning provided for the withdrawal and the possibility of withdrawal of accommodation on the basis of absences was not communicated widely prior to the policy being implemented by IPAS. Residents were told that in order to re-access accommodation, they would be required to make a formal request to IPAS.
Individuals were prevented from accessing emergency accommodation and owing to delays in re-accommodation, a number of clients became street homelessness or were forced to stay in cars or with friends. Some clients had to wait up to 10 days prior to accommodation being restored and this only occurred after IRC entered direct correspondence with IPAS, with intervention by the CEO to senior IPAS staff. With advocacy and assistance from IRC, reception conditions were restored in the vast majority of cases.
Throughout 2022, the Irish Refugee Council also assisted approximately 147 international protection applicants at risk of, or experiencing, homelessness. A number of these individuals had been staying in private rented accommodation since their arrival in the State and had never accessed state-provided accommodation, while others lost their accommodation within the Direct Provision system due to alleged breaches of the House Rules. In the experience of the Irish Refugee Council, in the vast majority of these cases, requests for re-accommodation went unanswered by IPAS for several weeks, sometimes months. During this period, many applicants were forced to sleep on the street, without access to food or shelter and often in very severe weather conditions.
With regard to the second cohort of applicants, those evicted from their accommodation for alleged breaches of the House Rules, it should be noted that pursuant to Regulation 6 of the Reception Conditions Regulations 2018, the State can only withdraw or reduce an applicant’s reception conditions in a very limited set of circumstances. Moreover, the Minister must inform the applicant in writing of the decision and the reasons for it. In the vast majority of the above cases, the applicant’s alleged breach could not be said to fall within the limited set of circumstances established pursuant to Article 6. Moreover, the vast majority of applicants receive anything in writing notifying them of the withdrawal of their reception conditions or the reasons for same, thus making it practically impossible to appeal or review the withdrawal.
While many clients were ultimately re-accommodated following sustained advocacy and intervention by the organisation’s CEO, the above practices amount to a clear breach of the State’s obligations pursuant to the Reception Conditions Regulations. Such breaches continued to occur at the time of updating.[18]
[1] Regulation 6(1) Reception Conditions Regulations 2018.
[2] Regulation 27 Reception Conditions Regulations 2018.
[3] The corresponding EU law provision, Article 20(1)(b) recast Reception Conditions Directive, refers to non-compliance with reporting duties or information requests, or failure to appear for personal interviews.
[4] Regulation 6(2) Reception Conditions Regulations 2018.
[5] Regulation 6(3)(a) Reception Conditions Regulations 2018.
[6] Regulation 6(3)(b) Reception Conditions Regulations 2018.
[7] Regulation 6(5) Reception Conditions Regulations 2018.
[8] Regulation 6(6) Reception Conditions Regulations 2018.
[9] Regulation 20(1)(d) Reception Conditions Regulations 2018.
[10] Regulation 20(2)(d) Reception Conditions Regulations 2018.
[11] Regulation 21(1) Reception Conditions Regulations 2018.
[12] Regulation 21(4)(a) Reception Conditions Regulations 2018.
[13] Ombudsman, ‘The Ombudsman & Direct Provision: Update for 2019’, April 2019, available at: https://bit.ly/2Xku2Dr.
[14] Ombudsman, ‘The Ombudsman & Direct Provision: Update for 2020’, March 2021, available at: https://bit.ly/2PbgkSe.
[15] Ombudsman, ‘The Ombudsman & Direct Provision: Update for 2019’, April 2019, available at: https://bit.ly/2Xku2Dr.
[16] Information provided by IPAT, February 2022.
[17] Information provided by IPAT, January 2023.
[18] Information provided by Irish Refugee Council’s Information and Advocacy Service, January 2023.