Direct provision system does not breach human rights, court rules

A mother and son have lost their legal challenge to the direct provision system for asylum seekers.

Despite rejecting the claims that direct provision was in breach of the Constitutional or the family's human rights, however, the High Court declared that some of the house rules of the State's asylum seeker accommodation network were unlawful.

These are the requirement for daily signing in and advance notice of absences, unannounced inspections and a ban on having guests. Mr Justice Colm Mac Eochaidh also found that the complaints handling mechanism, run by the Reception and Integration Agency, an arm of the Department of Justice, was unlawful. There was "no compelling reason" why the agency should be the final complaints handling body for residents.

The case, taken against the Minister for Justice, the Minister for Social Protection and the Attorney General, was heard over two weeks in April and May. The applicants, a mother and son known as CA and TA, have been living at the Eglinton Centre in Galway since mid-2011.

Mr Justice Mac Eochaidh rejected the claim that direct provision, under which asylum seekers are paid a weekly allowance of €19.10 a week and banned from taking paid work, breached the privacy and family rights of the applicants.

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

In relation to respect for family life, the judge said no evidence had been advanced to establish direct provision interfered with this. However, he 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 rejected the argument by the mother and son that direct provision required primary legislation and was therefore in breach of constitutional provisions on the separation of powers.

The family had contended that such far-reaching powers which regulate the daily lives of individuals ought to have a legislative underpinning. This was rejected by the court. “The Constitution does not require that the legislature must establish principles and policies in order for the Government to exercise its executive powers,” Mr Justice Mac Eochaidh said. “The Government may exercise executive powers independently of the legislature.”

The mere fact that direct provision could have been placed on a legislative footing did not mean that must happen, he added.

The judge said he was also not persuaded by the applicants’ claim that the payment of €19.10 a week (and €9.60 for children) was in breach of the social welfare code.

Mr Justice MacEochaidh said the applicants’ claim that direct provision breached their human rights was “doomed” not because that proposition was wrong but because they had pursued the claim without presenting oral evidence to the court.

They also did not cross-examine witnesses for the ministers for justice and social protection, 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.

Mr Justice Mac Eochaidh 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.

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