I welcome this opportunity to respond to the points raised in this Private Members’ motion and to speak more generally about the subject in order to assist Members gain a fuller understanding of all the issues involved.
At the outset, as Members will be aware, I have on several occasions in this House and in the other House responded to many, if not all, the points referred to in this motion. I am of course happy to do so again in the course of my contribution to this debate.
In saying this, it is important that I state that for the avoidance of any doubt or misunderstanding that the issues under discussion here this evening are currently being litigated through a Judicial Review application in the High Court, which essentially challenges the legal validity of the Direct Provision system. An application for leave for Judicial Review in that ‘Mundeke’ case – so named after the applicants seeking the review – was formally heard in the High Court on Monday and the likelihood is that a full hearing of the case will take place early next year. I mention this with no purpose other than to ensure that all members are aware of the most recent developments in this highly contested area of public policy which can give rise to sharp differences of opinion among the wider community.
I don’t know if this motion is being coordinated with developments in that case as part of the ongoing campaign against direct provision. Regardless, the House will understand that I cannot say anything here which will pre-empt the State’s response to this legal challenge.
In the context of legal challenges generally, it is worth noting that a substantial number of those residing for long periods within the direct provision system, are adults living with their children who have challenged in the courts by way of the judicial review process decisions made refusing applications for asylum and / or permission to remain in the state and whose cases await hearing or determination. There are presently approximately 1,000 such cases pending before the courts.
These Judicial Reviews take place notwithstanding the existence of a detailed system of examination of asylum claims, involving two bodies statutorily independent of the Minister – the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. These bodies are to fulfill the State’s obligation to distinguish between genuine asylum seekers and economic migrants who have not obtained the appropriate visas for permission to remain in the State or work permits to obtain gainful employment
I’m aware that some of the strongest critics of the direct provision system outside of this House have said all that is required is ‘one last push’ to have it brought down. That, of course, is their right in our democratic system. But in opposing the system of direct provision, which I have already freely admitted has many faults, I have yet to see any proposals – or, at any rate, proposals grounded in the reality of the economic conditions we face, – as to what could replace it without, in short order, re-creating the crisis which led to its establishment in the first place. There is no gainsaying that truth and anybody who believes otherwise is, at best, simply not prepared to face reality.
The system of direct provision in this country is sui generis. There is no real comparator with any other form of accommodation being provided by the State. To understand the system, as well as its strengths and weaknesses, one has to take account of the circumstances which prevailed when it was first set up.
The number of asylum applications in Ireland increased dramatically in the late 1990s. In 1998, 4,426 asylum seekers applied for refugee status. In 1999, this figure rose to 7,724. On the basis of these trends, it was anticipated that between 12,000 and 15,000 would claim asylum in Ireland during 2000. At that time the majority of asylum seekers arrived in Dublin – and still do, by the way - and the provision of accommodation for asylum seekers was handled, in the main, by the then Eastern Health Board who treated the asylum seekers as homeless. In late 1999, the shortage of accommodation reached crisis point and the EHB understandably could not cope. There were reports of asylum seeker families sleeping in parks because no accommodation was available for them.
In November, 1999 the Government decided to deal with the crisis by having the needs of asylum seekers met by a system of direct provision which also involved dispersal throughout the country. The Government's decision was also made in the context of measures taken in other EU countries to control illegal immigration and to process large numbers of asylum applicants. The body set up under the auspices of my Department to carry out the Government policy was the Directorate of Asylum Support Services (DASS), which later became the Reception and Integration Agency (RIA). It was an important objective of the policy to ensure the availability of accommodation for all asylum applicants while their applications for asylum and leave to remain in the State were being processed and determined.
Since then, RIA policy has been to procure commercial properties - hotels/hostels/boarding colleges etc. - from private operators through public advertisements seeking expressions of interest. This procurement policy is reflected in the current RIA portfolio. Of the 34 current centres, only seven are State owned and, overall, only 3 are 'system built' i.e. were built specifically for the accommodation of asylum seekers.
In terms of room capacities and facilities, RIA centres operate in compliance with relevant legislation. In relation to determining minimum room capacities, RIA relies on the Housing Act, 1966 with particular reference to section 63 thereof dealing with the definition of overcrowding. In relation to shared bathroom and toilet requirements, RIA relies upon the Tourist Traffic Acts, 1939 to 1998.
Where a family member, already in RIA accommodation, reaches 10 years of age, RIA offers that family alternative accommodation which is deemed suitable for their needs. In many cases, where the family profile has changed on the basis of age or newly arrived family member, RIA can only offer alternative accommodation at another centre in order to keep within the above rules. However, a family may choose to refuse the offer of a transfer to an alternative centre because either (a) it prefers the current arrangement or (b) it wants to await a better offer. Where a family refuses an offer of alternative accommodation in such circumstances, RIA keeps the family details under review and further offers are made as deemed suitable.
The key point being made is that RIA must adapt existing premises for the purposes of accommodating asylum seekers. It is not realistic to expect 'bespoke' accommodation for asylum seekers in accordance with what one may wish to ideally have in a centre.
In the current campaign against direct provision, there can be a tendency at times towards extreme claims which do little to help the residents involved. No matter how many times it’s refuted, the canard that asylum seekers in centres resort to suicide as a matter of course still surfaces. Then, there are claims that residents resort to prostitution in centres. Such claims have been investigated by Gardaí in the past and found to have no basis. And any such allegations will continue to be investigated by the appropriate authorities in accordance without the laws of our country. Yet assertions about suicide, child abuse and prostitution among residents in asylum accommodation centres are still made by purported supporters of asylum seekers who would not dare to make such assertions in respect of any other identifiable group of persons in Irish society.
The direct provision system is not ideal but it is a system which facilitates the State providing a roof over the head of those seeking asylum or seeking other grounds to be allowed, on humanitarian grounds, to stay in the State. It allows the State to do it in a manner that facilitates resources being used economically in circumstances where the State is under financial difficulty.
No Government can afford to ignore the likely consequences of any change to the Direct Provision system. The system was examined in considerable detail in the 2010 Value for Money (VFM) Report which found that there are no cheaper alternatives to that system. In fact, if we were operating a system which facilitated asylum seekers in living independent lives in individual housing with social welfare support and payments, the cost to the exchequer would be double what is currently paid under the direct provision system. Moreover, if the State were to allow all asylum seekers avail of full social welfare supports, including rent supplement, the immediate impact would be for all asylum seekers, including those not currently in RIA accommodation, to avail of that financial support. As things stand, not all asylum seekers live in direct provision. Some live with friends or family or provide from their own resources.
A further concern is the ‘pull factor’ involved. Whilst I believe our State has an obligation to provide refuge for those in genuine need of protection and asylum and that it is crucial that we comply with our international obligations in this regard, it is right that I also acknowledge that a significant number of those who have over the years sought asylum have been economic migrants evading our immigration and visa
requirements whose personal narratives have ultimately proved to be both untrue and unreliable. This State at this time cannot afford to provide supports and accommodation to individuals who so behave. The decline in the number of those applying for asylum arriving in Ireland – from 11,600 in 2002 to 1,000 in 2012 – is bucking the generally upward trend in the EU overall. It has to be borne in mind that the Common Travel Area (CTA) between Ireland and the UK - which for many decades has delivered immeasurable economic, social and cultural benefits – would possibly be abused by those using the asylum system simply to avail of better economic advantages.
No asylum seeker has ever been left homeless. Unfortunately and it gives me no pleasure to say it, the same cannot be said by the public authorities responsible for homelessness issues among our indigenous population. Asylum seekers receive nourishment on a par with, and in some cases superior to, that available to the general population. Asylum seekers receive a health service on the same basis as Irish citizens and it is, in many cases, far superior to what is available in their countries of origin. Children of asylum seekers are provided with primary and secondary education in the local community on the same basis as the children of Irish citizens.
The Direct Provision system remains a key pillar of the State's asylum and immigration system and I have no plans to end it at this time. I do accept that the length of time spent in direct provision and the complexity of the asylum process itself is an issue which needs to be addressed. I myself have visited a number of asylum accommodation centres – most recently last Friday in the Ashbourne centre in Glounthane in Cork – and I am concerned at how long people spend in the system. My resolve therefore is to deal with the factors which lead to delays in the processing of cases so that asylum seekers spend as little time as is necessary in that accommodation system.
We, of course, have like other States individuals and families who apply for asylum and who have genuine grounds for seeking asylum under the relevant international provisions in place and under our own domestic law. Indeed, 195 of those granted Irish Citizenship in the ceremonies held on Monday last in the Convention Centre in Dublin were political refugees. We also have a substantial number of people who are economic migrants and who present with stories seeking asylum which turn out to lack validity. There are individuals who adopt false identities, who pretend to come from troubled parts of the world when they do not. There are individuals who will claim to be in war zones and when the matter is further investigated it turns out they were in London, Birmingham or elsewhere when they alleged they were in the Sudan, Somalia or some other troubled part of the world. This is a real problem in dealing with the asylum system. Many also "play the system" by instituting one legal challenge after another to delay the inevitable - sometimes to the point of launching legal challenges as they are about to board an aircraft to be returned home. That is their right, of course. We should not lose sight however of the fact that the right of easy access to our courts in this respect is almost without equal in the world.
There is a need to bring balance to the discussion in relation to asylum seekers. In the context of the wider community and those campaigning there is an assumption that every single individual who applies to seek asylum is giving a truthful account of their circumstances and is a genuine asylum seeker. On the other side of the debate there are small numbers of individuals who doubt whether any applicant for asylum is telling the truth. We must, in this country, adopt a balanced approach. We must ensure that no individual who truthfully documents events or circumstances in respect of which asylum should be granted is refused the protection they seek whilst also ensuring that those who deliberately abuse the asylum process to evade our immigration laws do not benefit and do not, by their conduct, undermine our asylum system and the basic humanity it is right to afford to those in need. We must ensure that the integrity of our asylum and immigration system is upheld, so that assistance is afforded to those who genuinely seek asylum whilst not allowing the system to be undermined by those seeking unfair advantage.
Having made these general points about the direct provision system, let me deal with the various points raised in the motion, the first being the view of the Government’s Special Rapporteur on Child Protection, Dr Geoffrey Shannon, in his fifth Report –in July 2012 - that the system should be examined with a view to establishing whether the system itself is detrimental to their welfare and development and, if appropriate, an alternative form of support and accommodation adopted which is more suitable for families and particularly children.
The first thing to be said here is that RIA affords the highest priority to the safeguarding and protection of children through the full implementation of the Children First Guidelines. It has a fully staffed Child and Family Services Unit, the head of which is seconded from the HSE. Any review of the type proposed would have to take account of the wider purpose of the Direct Provision system in the overall context of the State’s response to the issue of asylum seekers and immigration control generally. The accommodation system cannot exist solely in its own context. It is inextricably linked to the surrounding international protection process. An amended Immigration, Residence and Protection Bill will be published the purpose of which will be to substantially simplify and streamline the existing arrangements for asylum, subsidiary protection and leave to remain applications. It will do this by making provision for the establishment of a single application procedure, so that applicants can be provided with a final decision on all aspects of their protection application in a more straight forward and timely fashion.
I would have wished, of course, to have brought forward this legislation much sooner. However as members will be aware, by necessity Troika related legislative requirements have had to trump all other proposals no matter how meritorious they are. When it comes down to it, the available pool of legislative drafting expertise is quite small and of course is subject to the same resource restrictions as all other areas of the public service. That said I expect that this situation will be alleviated shortly and that the Bill will come before the Oireachtas next year.
In relation to the establishment of an independent complaints mechanism through the Ombudsman for Children and independent inspections of Direct Provision centres undertaken through HIQA, it’s not clear from the Rapporteur’s report that he was aware of how these issues are actually dealt with.
I see no basis for HIQA involvement. RIA centres are already subject to inspections three times a year, twice by Department of Justice staff and once by an independent company called QTS. Indeed, the media reports last week about shortcomings in some RIA centres came about from the release under FOI of inspection reports carried out by RIA which showed that the inspection system was indeed working. RIA will be publishing on its website all completed inspection reports on its centres undertaken since 1 October, 2013.
Although not stated explicitly in the Report, the Rapporteur appeared to be making an analogy with the HIQA inspections of Children’s Detention centres. But there are several distinctions to be drawn. Firstly, there are only a small number of children at present in detention while there are approximately 1,200 children in the 34 RIA centres around the country. Secondly, HIQA does the inspections on a 'contract' basis for the Department of Children and Youth Affairs, not under the specific HIQA legislation. The inspections are based on the standards drawn up by DCYA, not by HIQA. Thirdly, the inspection standard by DCYA takes into account that these children are 'in the care of' the State i.e. the State acts in loco parentis. Whilst RIA has, of course, a duty of care to all its residents, in no case is it acting in loco parentis in respect of children in the centres.
In relation to the recommendation in relation to extending the remit of the Children’s Ombudsman to Direct Provision centres, I see no basis for changing the law in this regard. Section 11(1) (e) of the Ombudsman for Children's Act, 2002 provides that the Ombudsman shall not investigate any action taken by a public body where the action was taken in the administration of the law relating to, inter alia, asylum. While the Office currently does not have the power to investigate asylum related matters, the Irish Naturalisation and Immigration Service (INIS), including RIA, has administrative arrangements in place with the Office to assist and provide information and help resolve any matters brought to its attention. The Rapporteur’s report also does not make clear that the Ombudsman does not serve as a first instance appellant authority in relation to day to day administrative complaints mechanisms. It is a requirement that a person who wishes to appeal to the Ombudsman must first try to solve the problem with the public body concerned using formal local appeals mechanism.
In relation to the legislative basis for payments to asylum seekers in direct provision accommodation, asylum seekers cannot work under section 9(4)(b) of the Refugee Act 1996,
cannot access rent allowance under section 13 of the Social Welfare (Miscellaneous Provisions) Act, 2003 and are not entitled to a range of benefits, including child benefit, as they are deemed to be not habitually resident under section 246(7) of the Social Welfare Consolidation Act, 2005.
The Minister for Social Protection has already responded to Dáil questions on this to the effect that under the Direct Provision system asylum seekers are provided with full board accommodation and other facilities such as laundry services and access to leisure areas. To take account of the services provided, a direct provision allowance of €19.10 per adult per week and €9.60 per child per week is payable in respect of any personal requisites required.
Following the introduction of the statutory habitual residence condition in May 2004 and subsequent legislation, asylum seekers are not entitled to receive most social welfare payments. The payment of the weekly direct provision allowance is made on an administrative basis by the Department of Social Protection on behalf of my Department.
It continues to be open to any asylum seeker to seek assistance for a particular once-off need by way of an exceptional needs payment under the supplementary welfare allowance scheme as contained in Section 201 of the Social Welfare Consolidation Act 2005. There is no automatic entitlement to an exceptional needs payment as each application is determined based on the particular circumstances of the case.
In relation to the final issue raised concerning a debate with Members of Seanad Éireann as to how best to reform Ireland’s reception and asylum system, all I can say is that only someone unfamiliar with parliamentary affairs would think that there has been little or no debate about the merits or otherwise of the Direct Provision system. I have answered over 50 Dáil Questions on the topic this year, as well as five Seanad adjournment debates – not including this one - and RIA has facilitated three visits by Senators to asylum accommodation centres. In its previous iterations, the Immigration Residence and Protection Bill has been extensively debated in the Oireachtas and no doubt will be again when it is reintroduced as soon as possible.
I wish this were an issue with an easy resolution. But it isn’t. It’s a challenge not just for Ireland but for the EU as a whole. The Direct Provision system is a necessary feature of this country’s asylum and immigration system. But I want to see a situation where asylum seekers spend less time in that system. That is where my energies will be spent.