The Government cannot use housing shortages as an excuse for not accommodating asylum seekers, the European Court of Justice (ECJ) has said.
The Luxembourg-based court, the highest in the EU, issued its decision on Friday on foot of referral to it by the High Court in December 2023.
The High Court was hearing a case taken by two International Protection (IP) applicants – an Afghan national and an Indian national known as SA and RJ respectively who had spent long periods homeless, having been left without accommodation.
Since December 2023, single adult male asylum seekers are not guaranteed shelter due to “shortages of accommodation”, the Department of Justice has said.
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While the Department of Children, then responsible for IP accommodation, agreed in court in December 2023 that EU rules on reception conditions for applicants were being breached, it argued a large influx in the context of wider accommodation shortages amounted to a “force majeure” – providing a derogation to the State from the rules.
The High Court referred this point to the ECJ for adjudication.
In its ruling on Friday, the ECJ said: “EU law must be interpreted as meaning a member state which has not guaranteed, for a number of weeks, access by [an asylum seeker] to [accommodation] ... may not avoid liability under EU law by pleading temporary exhaustion of the housing capacity ... owing to an influx of third-country nationals seeking temporary or international protection; an influx which, because of its significant and sudden nature, was unforeseeable and unavoidable”.
The judgment comes two days after the Court of Appeal ruled asylum seekers left without accommodation on arrival into the State were “placed in a situation of extreme material poverty”, but it was not proven they were in “a state of degradation incompatible with human dignity”.
That judgment had overturned a High Court finding that the State’s failure to provide accommodation for homeless asylum seekers was a breach of their fundamental right to dignity.
Welcoming Friday’s ECJ ruling, the Irish Refugee Council, which represented SA in the case, said it was “important ... for all vulnerable groups”.
Katie Mannion, managing solicitor with the council’s independent law centre, said the European court had “confirmed that individuals whose rights are breached by the State can access a remedy and that the State must be held accountable”.
She said SA had experienced 71 days of “street homelessness, hunger and fear”, because he could not access accommodation.
“He was prohibited from working and could not access any emergency accommodation or payments during that time and was left destitute. Having written seeking a bed in IPAS accommodation numerous times and experiencing suicidal thoughts and constant pain, he had no further option but to seek shelter through the courts,” she said.
As of July 30th, a total of 942 male IP applicants were “awaiting offer of accommodation”. Since December 4th, 2023, a total of 9,981 have applied for asylum, of whom 1,417 were offered accommodation on arrival when triaged as “vulnerable”.
Those left without accommodation are provided with an allowance of €113.80 a week and information on charities providing food and tents.
The matter will be referred back to the High Court for it to make final determinations after considering the judgment of the ECJ, which is a binding interpretation of EU law.
