Ending Direct Provision

7/23/2019 Ending Direct Provision

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E N D I N G D I R E C T P R O V I S I O N | 1

ENDING

DIRECT

PROVISION

Ógra Fianna Fáil Asylum Seeker Policy




The key issue in the debate is the

right of asylum seekers to work

while waiting for affirmation of their

refugee status or the granting of

leave to stay. While European Union

member states have approved a

common European asylum policy

that includes this right, Ireland lags

behind with government ministers

recently citing concerns that such

a system would “pull” economic

migrants to Ireland. MeanwhileIreland has volunteered to receive

600 asylum seekers from Europe’s

borders to help relieve pressure

on Italy and Greece.

Ógra believes that it is time that

Ireland joined Europe in applying a

consistent and just policy towards

refugees and that the focus must

shift away from wielding the

injustices of direct provision as a

deterent and instead look towards

creating a humane shelter forthese victims of tragic violence

and terror.

In order to do this, Ógra believes

that once-off emergency measures

must be taken to clear the backlog

of applications in the system, that

we must opt in fully to all the

CEAS directives and that a more

efficient judicial process must be

put in place. The most important

part of this policy is that the right to

work after 6 months in the systemmust be granted to asylum seekers

in order to protect their right to

basic dignity.

Ian Woods

Conor Kelly

Will Prasifka

The key issue in the debate is

the right of asylum seekersto work.



4 | E N D I N G D I R E C T P R O V I S I O N

Direct provision was introduced to Ireland on April 10th 2000. Originally envisaged as a short term solutionand that each applicant would get through the process in as little as six months. The system included full bed

and board in private contracted accommodation with an allowance of €19.10 / week for adults and €9.60 /

week per child [1]. No other welfare payments were made available to asylum seekers though the system did

provide for medical care and education up until the age of 18. Most notably, applicants were not granted the

right to work while awaiting their refugee status.




In April 2000 there were 394 applicants and by 2014 there were

4,309 of which a third were children [2]. Over 1,600 people have

been in the system for 5 or more years and over 3,000 have been inthe process for 2 or more years [3]. 59% of applicants have been in

the direct provision system for 3 years, 31% for 5 years and 9% for

over 7 years.

Even voluntary return is not an option for many, given limited financial

means and the fact that the International Organisation for Migration

is not permitted by the Department of Justice to assist a person on

a Deportation Order.

Direct provision accommodation is the responsibility of the Reception and

Integration agency (RIA), which is overseen by the Irish Naturalisation

and Immigration Service (INIS). Allowances are meted out through

the Department of Social Protection and the allowance has not been

altered since its introduction in 2000 [4]. There is no legislative

basis for the system of direct provision and the system operates on

a combination of administrative decisions and Ministerial circulars.

This “informal” system is riven with flaws; no formal practice for theassignment of individuals to reception centres exists and the RIA

claims that this “informal” practice is based on family composition

and matched against optimal available accommodation [5]. No

specific reception centres exists for vulnerable applicant groups e.g.

unaccompanied minors or torture victims in need of psychological

care. While reception centres are managed by external contractors, no

independent appeals process exists for asylum seekers to raise issues

33%were children.

4309applicants

in 2014.




with the accommodation. The quality of reception centres has also

been challenged in numerous reports, for example in 2007 the Human

Rights Commissioner noted with concern reports of overcrowding and

lack of private spaces where children grow up without any recreationalspace “in effect confined to their shared bedroom [6].

Direct provision has been openly criticised in recent years by Emily

O’Reilly the current European Ombudsman and Supreme Court

justice Catherine McGuinness [7]. Reports from the Irish Human

Rights Commission, the Ombudsman for Children, and the Special

Rapporteur for Children have all found the direct provision system

to be significantly damaging. Doras Luimní, a Limerick based agency

which supports all migrants in the Midwest has described the systemas one which has “taken its toll on men, women and children many

of whom are at breaking point” due to a structure which creates

“delays, forced idleness, poverty, cramped and unsuitable conditions,

uncertainty and the threat of deportation” [8]. Furthermore, NGO’s

have reported multiple “informal” attempts at clearing the massive

application backlog.

“It has taken

its toll on men,women and

children many

of whom are

at breaking

point.”




In the aftermath of World War II and the massive displacement of civilians it caused, the international

community wrote the Geneva conventions and defined what a refugee is, their rights and the obligations

of the states where they seek asylum. Later, the scope of the convention was expanded by the 1967

Protocol to take account of the problem of displacement as it expanded throughout the world in the

20th century. The difference between refugees and normal migrants is that refugees are forced to flee

because of a threat of persecution and because they lack protection in their own country. A migrant, in

comparison, may leave his/her country for many reasons that are not related to persecution and they

continue to enjoy the protection of his or her own government, even when abroad.

What is a Refugee?

“A person who owing to a well-founded fear of being perse-

cuted for reasons of race, religion, nationality, membership of a

particular social group or political opinion, is outside the country

of his nationality and is unable or, owing to such fear, is unwilling

to avail himself of the protection of that country; or who, not

having a nationality and being outside the country of his formerhabitual residence as a result of such events, is unable or, owing

to such fear, is unwilling to return to it.”

Article 1 of the 1951 Refugee Convention




This protocol is still used today to determine the rights of refugees and

is applied in Irish law in conjunction with EU regulations dealing withrefugees and asylum seekers. The Dublin regulation was negotiated

under Ireland’s EU presidency and determines the EU member state

responsible for asylum claims and enables the transfer of asylum

seekers to the responsible member state, usually the state through

which the asylum seeker first entered the EU [10]

What are our obligations to refugees?

Refugees cannot be removed from the State unless their case has

been dealt with in accordance with the Dublin III regulation, whichmeans that they must be given the opportunity to present their

case fully to the Refugee Applications Commissioner or the Refugee

Appeals Tribunal as appropriate. They must be given legal assistance

in assembling and presenting their case as well as accommodation,

welfare and health care while the application is considered.

Furthermore, the convention stipulates that:

Ógra believes that the direct provision system is a violation of the

spirit, if not the letter of this convention.

“Refugees

cannot be

removed

from the

State unlesstheir case

has been

dealt with in

accordance

with the

Dublin III

regulation”

“The Contracting State shall accord to refugees lawfully

staying in their territory the most favourable treatment

accorded to nationals of a foreign country in the same

circumstance, as regards the right to engage in wage earning

employment” [9]




According to the European Border Management Agency Frontex, more than 220,000 migrants without

papers came to Europe by sea and nearly 67,000 of these were Syrians fleeing the brutal civil war that

has consumed much of the country. Other key migrant groups were refugees fleeing civil war in Mali and

a brutal regime in Eritrea. This mixed flow migration includes both refugees seeking asylum in Europe and

ILLEGAL BORDER CROSSINGS BY ROUTE



1 0 | E N D I N G D I R E C T P R O V I S I O N

economic migrants. Most migrants are coming through a number of key

routes, Northward through the Sahara to Northern Libya or from the

Middle East to Egypt or Turkey and from there to Lampedusa, Sicily or

Greece. According to the UNHCR, of the 9 million Syrians that have fledthe civil war, over 3 million have fled to Syria’s immediate neighbours

(Turkey, Lebanon, Jordan and Iraq), 6.5 million are internally displaced

and under 150,000 Syrians have declared asylum in the EU. The EU

have pledged to resettle a further 33,000 Syrians and the vast majority

of these sports (28,500) are pledged by Germany [12].

This high demand for sea crossings fuelled by a record number of

successful entries have led to new approaches by organised crime

groups in Turkey with the use of large cargo containers being reportedto ferry migrants to Italy since September 2014 and has become a

multimillion euro business and is likely to be repeated along other

coasts. As of last year the land route through the Balkans to Hungary

became the third most populous migrant route.

According to Frontex, most migrants making the Mediterranean crossing

were Syrians and Eritreans departing from the Libyan cost and the

vast majority were rescued by border control authorities after making

a distress call. The boats used are frail and overcrowded with limited

fuel to maximise profits. Despite efforts by the Italian Navy and the

JO Hermes/ Triton around 3,400 people died or went missing at sea

in 2014 and 2,800 since the beginning of 2015. Italian officials have

estimated that about 600,000 people are awaiting their turn to make

the crossing on the Libyan coast which is another 3 years’ worth of

migration even at the high rates of the last two years [13]

In 2014 Italy, in agreement with the European Union decided to endits Mediterranean migrant rescue operation - Mare Nostrum - after it

had saved the lives of tens of thousands of people at sea. While hoped

that this would prove a deterrent to continued crossings, migration has

continued unabated with an increase in deaths at sea, with Amnesty

International estimating that as many as 900 people disappeared at

sea since operation downgrade [14].

2,800at beginning of

2015.

3,400dead or missing

at sea in 2014

600kwaiting to cross –

three years worth

of migration.



E N D I N G D I R E C T P R O V I S I O N | 1 1

Fig 2. Syrian refugee mother comforts her children, after being rescued from

a shing boat carrying 219 people who had hoped to reach Europe. They are

among millions uprooted by war. In 2014 alone, 13.9 million people became

newly displaced, four times the number in 2010. (UNHCR / A. D’Amato)

In response to this tragic surge, the EU has tripled funding for its border control operation and member

states have dispatched six ships, three airplanes and two helicopters to patrol the Mediterranean until

September 2015. Ireland has taken part in this operation with the LE Eithne rescuing more than 3,200

migrants between May and July 2015 [15].



The Common European Asylum System is a series of directives negotiated between member states to ensure

that EU member states are fully compliant with the Geneva Convention relating to the Status of Refugees

1951 and the New York protocol of 1967. It is designed to make asylum policy consistent and fair across EUmember states and addresses issues in asylum policy brought about by the Schengen Agreement. It consists

of the Dublin and Eurodac regulations and directives on Reception, Qualification and Procedures [16].

CEAS in Practice

Each applicant’s fingerprints are taken and sent to a database called Eurodac. These data are used to help

identify the country responsible for the asylum application.

Asylum applicants receive material reception conditions (Reception Conditions Directive)

An asylum applicant is interviewed by a case worker trained in EU law, with the help of an interpreter, to

determine whether he/she may qualify for refugee status or subsidiary protection (Qualification Directive

and Asylum Procedures Directive)

Refugee or subsidiary protection status is granted which gives the person certain rights, such as access to

a residence permit, the labour market and healthcare (Qualification Directive).

Or Asylum is not granted at first instance, but this refusal may be appealed in court. If this refusal is

confirmed the applicant may be returned to his/her country of original or transit.

Related European Union Directives

Since 1999 the EU has been working to create a Common European Asylum System and improve the current

legislative framework. (CEAS Report)




• Recast Asylum Procedures Directive – aims to ensure fairer, quicker and better quality asylum decisions;

asylum seekers with special needs will receive necessary supports to help them explain their case,

specifically victims of torture and unaccompanied minors

• Revised Reception Conditions Directive – ensures that there are human reception conditions for asylumseekers which protect their fundamental rights and that detention is only applied as a measure of last

resort.

• Revised Qualification Directive – clarifies the grounds for granting international protection and will

make asylum decisions more robust. It will also improve the access to rights and integration measures

for beneficiaries of international protection.

• Revised Eurodac Regulation – allows law enforcement to access the EU database, in strict circumstances,

of the fingerprints of asylum seekers under strictly limited circumstances in order to prevent, detect or

investigate serious crimes such as murder or terrorist.

• Revised Dublin Regulation – protects asylum seekers during the process of establishing the state respon-sible for their application and creates a system to detect issues in national asylum systems.

EU Voluntary Relocation Scheme

While these new directives form a roadmap toward a more consistent and just asylum process, they do

little to address the needs of EU members currently inundated with asylum requests due to their peripheral

location. As such, the EU has triggered an emergency response system envisaged under Article 78(3) of

the Treaty on the Functioning of the European Union and has introduced a temporary relocation scheme to

relocate asylum seekers arriving in EU states throughout the EU in order to relieve high strained borders.

A distribution key has been drawn up which allocates asylum seekers on quantitative objective basis

throughout the EU according to size of population, total GDP and average number of spontaneous asylum

applications and the number of refugees already resettled per 1 million inhabitants since 2010, as well as

the unemployment rate of the country. Although Ireland has the right to opt out of the scheme, the govern-

ment has decided to take up a commitment to an extra 600 migrants [17].




As the refugee crisis intensifies and the effects reverberate throughout the

Europe and as Ireland commits to providing refuge for more asylum seekers, the

failings of the current system must be fixed or else we are failing not just ourinternational obligations but also our moral obligations to treat fellow human

beings seeking asylum within our borders in a humane and decent fashion. Ógra

is highly critical of the government’s failure to enact any meaningful reform in

their 4 years in office. The resignation of key groups such as the Irish Refugee

Council from the working group investigating direct provision must show that

the government is not serious about meaningful reform.

Former Justice Minister Alan Shatter when in opposition described the system as

comparable to prisoner of war camps and said it was not the “type of approach

that a civilized Western European democracy should apply in any situation”.

In government he described the system as “the most economical way of

providing for those who are effectively in the country illegally” [1]. This blatant

hypocrisy is just the latest in a series of promises broken by the coalition and

Ógra unequivocally rejects justifying direct provision and the violation of human

rights on the basis of cost.

Ógra agrees with the IRC that any bills dealing with reform of Direct Provision shouldnot be used as an enforcement tool which treats people as economic migrants

instead of refugees fleeing adverse situations to whom we have internationally

recognised obligations. Asylum is a right and those seeking to exercise that

right should not be punished. However the single procedure envisaged in the

government’s bill is concerned with speeding up decisions relating to deportation

rather than early identification of people in need [18]

Furthermore, these issues stem from the fact that Ireland has “opted out” of




participating in revised laws negotiated under our own presidency in 2013 which

form CEAS. Ireland has also failed to transpose the EU reception directive relating

to asylum policy as of the 20th of July. This directive (2013/33/EU) lays down

minimum standards for the reception of asylum seekers including the areas ofclothing, food, financial allowance, family unity, medical and psychological care

as well as access to education. Most importantly it ensures that asylum seekers

have the right to access the labour market and vocational training 6 months after

lodgement of their application. The Directive allows for member states to control

the type, duration and qualifications needed for work in each case. Included are

also special provisions to ensure the medical and social wellbeing of women and

children throughout the process of applying for asylum [3,4].


Fig 3. LÉ Niamh in Malta to refuel & resupply ahead of her

Search and Rescue Operations in the Mediterranean

(Irish Embassy, Malta)



The key problem with Direct Provision is the length of time spent by asylum

seekers in the system. If Direct Provision were a temporary condition lasting only

a few months, many of the hardships associated with it would be acceptable. Any

proposal that aims to reform the asylum system has to deal with delays inherentin the system itself.

It should therefore be understood that any reform that proposes expediting the

asylum process is not necessarily pro-asylum seeker but early identification of

asylum seekers for approval is in their interest. Any single-procedure system

introduced cannot only by concerned with speeding deportation and for those

concerned with the often cited “pull factors”, a fair and efficient system capable

of quickly processing claims is one of the best ways of discouraging economic

migrants while also in the best interests of refugees.


Table 2.

Asylum seekers who have

applications refused under 13(

b can lodge an appeal within 15

days. Applicants who are refus

under section 13(5) means that

the Commissioner has made

a recommendation that the

applicant should not be granted

refugee status and has included

in his report a finding under

section 13(6). An appeal to the

Refugee Appeals Tribunal mus

be taken within 10 days.



The key problem with the asylum system as it presently stands is that the process

comes in multiple stages and that each stage is amenable to judicial review. Those

seeking asylum must first apply for refugee status to the Office of the Refugee

Applications Commissioner. Refugee status is defined in the Refugee Act 1996and consists of a well-founded fear of being persecuted due to race, religion,

nationality, political opinion or membership of a social group. It is a narrow legal

definition and most applications fail to meet the threshold. If such an application

is refused then there is an option of appeal to the Refugee Appeals Tribunal. The

only way of appealing a finding of this body is by way of judicial review. Judicial

review examines the process by which the decision was made rather than the

merits of the decision itself. Only once an application for refugee status has been

completed can an applicant apply for Subsidiary Protection. Again this process

is also amenable to judicial review. While the efficiency of the court system hasimproved in recent years, it can still take up to four years for an application for

judicial review to be determined by the courts. Even if all of the above applications

are denied, it can take years for the government to carry out a deportation order.

The solution to the delays inherent in the asylum process is the establishment of

a unified system where applications for Refugee Status and Subsidiary Protection

are determined simultaneously. Furthermore such a process should also allow

for a determination as to whether an applicant should be able to remain in the

state on humanitarian grounds. The Government should provide criteria (through

legislation) on how such humanitarian applications should be determined. A

consistent and fair approach is needed.

With regard to delays in the judicial review process, one of the problems is that

all applications to judicially review asylum decisions must be on notice to the

State. Normally speaking, judicial review applications consist of two phases. The

first is an ex parte (i.e. the respondent, the state, is not notified of the hearing and

is not required to appear in court) application to a High Court judge for leave toseek judicial review. Only once this is accepted will the matter go to full hearing.

In migration proceedings there is a requirement that all applications for leave to

seek judicial review must be on notice to the State. While intended to cut down on

the number of asylum judicial reviews, it has in fact had the opposite effect. There

are considerable delays (up to 27 months) in getting a date to make an application

for leave due to the volume of applications. Abolition of this requirement would

help speed up the process.




Ógra proposes the following in order to ensure that Ireland can provide a humane a decent application

system to asylum seekers:

1. Removal of private operators from the direct provision system and a public body to be set up to admin-

ister the system after meaningful consultation with organisations representing asylum seekers and the

Children’s Ombudsman.

2. We demand an increase in the monetary allowance to asylum seekers in the direct provision system.

3. Ógra calls on the government to transpose the European Directive 2013/33/EU to bring our laws into

line with the minimum standards expected throughout Europe.

4. Ógra calls for a once-off amnesty for all asylum seekers in the system for longer than two years, through

the granting of leave to remain and a commitment to make a final decision within 6 months.

5. Ógra believes that the application process and the judicial review process must be reformed to speed

up the application process to prevent the build-up of applicants in the future.

6. We back the call of the IRC and Doras Luimní that people with outstanding leave to remain applications

should be granted it immediately in the following cases [20];

a. Families with school age children

b. Families with a child or children born in Ireland

c. Former separated children who have been moved into Direct Provisiond. Adult Spouses or partners of different nationalities

e. Adults or children with serious physical or mental health issues and their families

f. Adults who have been in the system for 2 years

g. Separated children who are in the care of the HSE where there is no realistic possibility of returning

them to care of their parents in their country of origin

h. Adults or children with close relatives who already have permission to reside in the state.




Ógra believes that direct provision is a moral travesty that shows a callous disregard for the dignity of

vulnerable families and individuals seeking shelter and succour on our island. This system is another sad

chapter in Irelands demoralizing history of institutional abuse. For too long Ireland has treated asylum

seekers as criminals within its borders instead of as refugees fleeing torture, murder, rape and situations

unimaginable to those of us lucky enough to be living in Ireland.

As Ireland commits itself sheltering a new group of vulnerable and weary refugees over the next few years,

this country must commit to maintaining the basic minimum standards set out in the Common European

Asylum System. In order to do this, we must admit that the direct provision system has failed in its stated

aims and that without clearing the backlogs that have built up over the last 15 years, any new system will be

paralysed from the beginning. By clearing this backlog through swift and decisive action, we acknowledge

that some asylum seekers who do not meet our criteria for refugee status will be given leave to remain in

Ireland. However, Ógra believes that thit is a small price to pay to do justice to those whom have suffered

in the system for so many years and who continue to suffer today.

Asylum seekers in Ireland should receive the same rights in Ireland as they receive throughout the rest

of the EU and to this end Ógra demands that the government opts in to the CEAS. Ógra believes that the

right to work is fundamental to human dignity and that denying asylum seekers this right after 6 months

is a breach of their rights.

i. Adults or children from states to where there is no possibility of removal due to instability within

that country.

j. Women whose relationships have broken down as a result of violence (verbal or physical) in the State

who would be vulnerable on return

7. Ógra calls for the right to work for all asylum seekers after 6 months of their application for asylum.




1. Griffin, Dan. (2014, 7 February) Long-term direct provision ‘’unsuitable’’ for asylum seekers, Irish Times,

accessed 21/4/15; http://www.irishtimes.com/news/social-affairs/long-term-direct-provision-unsuitable-

for-asylum-seekers-1.1683547

2. Answer to PQ by Minister for Justice, Frances Fitzgerald (4/11/14)

3. The Economic and Social Research Institute (2014) The Organisation of Facilities for Asylum Seekers

in Ireland, www.ersi.ie, retrieved April 21, 2015 from: http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/reports/docs/emn-studies/11.ireland_national_report_reception-

facilities_en_version_feb2014_finals.pdf

4. European Commission (2008) Minimum Standards on the Reception of Applicants for Asylum in

Member States, www.europa.eu, retrieved April 21, 2015 from: http://europa.eu/legislation_summaries/

justice_freedom_security/free_movement_of_persons_asylum_immigration/l33150_en.htm

5. Joyce C. & Quinn E. “The organisation of reception facilities for asylum seekers in Ireland” European

Migration Network (EMN)

6. http://www.ombudsman.gov.ie/en/News/Speeches-Articles/2013/Asylum-Seekers-Wrong.html

7. Thornton, Liam. (2014, 3 April) More asylum seekers in ‘’Direct Provision’’ than prisoners in jail, Irish

Times, accessed 21/4/15; http://www.irishtimes.com/news/education/more-asylum-seekers-in-direct-

provision-than-prisoners-in-jail-1.1747679

8. Sheridan, Anne (2015) “Ten years a slave to asylum system in Limerick, Limerick Leader” http://www.limerickleader.ie/news/local-news/ten-years-a-slave-to-asylum-system-in-limerick-1-6596373

9. United Nations Refugee Agency (1966) Convention and Protocol relating to the Status of Refugees, New

York: United Nations

10. Regulation No. 604/2103




11. Frontex Annual Report (2015)

12. UNHCR Global Trends “World at War” (2015)

13. Lind D. “The right to asylum: Why Europe has to take in migrants fleeing persecution” Vox http://www.

vox.com/2015/4/22/8464623/asylum-refugees-law-europe

14. Amnesty International 2015 “Europe’s Sinking Shame”

15. Lynch S. Irish Times (2015) “State will take 600 extra migrants in EU initiative” (http://www.irishtimes.

com/news/social-affairs/state-will-take-600-extra-migrants-in-eu-initiative-1.2289128

16. Malmstrom C (2015) CEAS Report, European Commission

17. European Agenda on Migration (2015) http://europa.eu/rapid/press-release_MEMO-15-4957_en.htm

18. Irish Refugee Council, 30/3/2015 http://www.irishrefugeecouncil.ie/news/the-heads-of-the-international-

protection-bill-2015-raise-fundamental-issues-about-irelands-commitment-to-providing-protection-says-

the-irish-refugee-council/3896

19. Directive 2013/33/EU

20. “Direct Provision: Framing an alternative reception system for people seeking international protection”

(2014) Irish Refugee Council


Ending Direct Provision

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