Tuesday 10 December 2019

Mother and son lose challenge against Ireland's direct provision for asylum seekers

However, the High Court has declared some of the house rules of centres as unlawful
However, the High Court has declared some of the house rules of centres as unlawful

Tim Healy

A MOTHER and her son have lost a legal challenge against the Ireland's direct provision system for asylum seekers.

However, the High Court has declared some of the house rules of direct provision refugee centres, including daily signing on, unannounced inspections, and ban on having guests, are unlawful.

Mr Justice Colm MacEochaidh said the mother and son, who are residents of the Eglinton Centre in Galway since seeking asylum in 2011, had failed to discharge the burden of proof that direct provision, with or without a time limit, breaches their human rights because it constituted inhuman or degrading treatment.

The judge also found the €19.10 per week State allowance to adult residents (€9.60 for children) of these centres was not unlawful.

He said they had succeeded in their claims however that some of the Refugee and Integration Agency (RIA) house rules, and the complaints handling procedure, are unlawful.

However, he said, the claim in relation to direct provision itself was "doomed" - not because the proposition that it breached human rights was wrong - but because they had pursued that claim without presenting oral evidence to the court. 

They also did not cross-examine witnesses for the Ministers for Justice and Social Protection, against whom the case was taken and who had denied direct provision was harmful, he said.

"The central dispute on the facts was not capable of being resolved in the procedure chosen by the applicants", he said.   All the reliefs they had sought against the State could have been brought by way of plenary High Court proceedings rather than through the judicial review mechanism they chose.

The judge said no lawful justification for the RIA rules, which also require residents to notify the centre managers of any absences, and the objectives sought by these rules could be achieved by less intrusive methods.

The judge also found the applicants did not have legal standing to challenge the €19.10 per week direct provision allowance (DPA) on the basis that it is a manipulation of the social welfare code and an unlawful parallel welfare scheme.

The judge rejected the claim that DPA is disguised as a social welfare payment.  The State is not prohibited from making cash payments to asylum applicants and is also no prohibited from using social welfare payment systems to make DPA payments.

He also commented that if he had found DPA unlawful, it would mean this payment to the mother and her son would cease as well as to thousands of others in such centres and that was a "rash suggestion".

He rejected the argument the Government acted unlawfully by not first putting legislation on the entire direct provision system before the Oireachtas.  It did not infringe on the separation of powers or trespass on the function of law making granted to the Oireachtas under the Constitution, he said.

In relation to the appliants' claims that direct provision, because of its cumulative effects, violate the right to respect for family and private life, the judge rejected arguments that the State did not have a right to interfere with those rights providing it was proportionate.

The applicants had argued that communal living and dining breached privacy but this applies in many circumstances in which the State must provide shelter, including in retirement homes, hospitals, and homeless shelters, he said.

The State had properly justified the prohibition of cooking in private rooms and it was central to communal accommodation arrangements, he said.   There would be much greater cost in providing private cooking facilities which would have to meet building and fire regulations.

In relation to respect for family life, the judge said no evidence had been advanced to establish direct provision interfered with this.  However, said it seemed much more could have been done to persuade the court as to the negative psychological effects of the direct provision environment on the boy in this case.

He also found the applicants had failed to establish proof of harm or negative effects from the lengthy periods in which residents must stay in these centres while their asylum applications are being processed.

The judge adjourned an application to amend the mother and son's case in order to seek nominal damages for inhuman treatment.

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