Asylum seekers take High Court action against direct provision scheme

Family claims system is in breach of the Constitution


A family has taken a High Court challenge against direct provision, the scheme under which asylum seekers are housed and provided with a small weekly allowance while their applications are being processed.

The family of six, including four children aged between two weeks and 20 years, have been living in direct provision accommodation for more than four years.

Lawyers for the family argue that the scheme was unlawfully established and has no legal basis. They claim it operates unlawfully by ministerial circulars and administrative arrangements without any statutory underpinning, and amounts to a “parallel system” for dealing with asylum seekers.

Under direct provision, asylum seekers are provided with full-board accommodation, with the cost of meals paid directly by the State.

Paid work
They are also given an allowance of €19.10 per adult and €9.60 per child per week, but are not permitted to take up paid work.

The family, originally from Africa, contend there is no statutory basis for the payment of this allowance or for the setting of the amounts paid, and argue that direct provision, by excluding them from receiving basic social welfare payments, violates rights to private and family life under the Constitution and the European Convention on Human Rights.

According to papers submitted to the court, the family also argue that key aspects of the system are in breach of the principle of the separation of powers and invalid given article 15.2.1 of the Constitution. This article provides that the “sole and exclusive” power of making laws is vested in the Oireachtas.

“The operation of the scheme is unconstitutional due to the lack of any originating legislative basis and the absence of parliamentary scrutiny or modalities for review by the Oireachtas,” the family argue. They argue that similar schemes for other categories of people in the State “are required to be, and are, placed on a statutory footing.”

‘Fundamental importance’ Lawyers for the family claim the respondents – the Minister for Justice, Minister for Social Protection and Attorney General – have no legislative authority to determine and control “such far-reaching matters of fundamental importance to the family, personal, educational and business/career lives” of the applicants.

Moreover, the family claim the block on entry to the labour market pending the outcome of a subsidiary protection application is unconstitutional.

Seeking leave to challenge the direct provision scheme, counsel for the family told Mr Justice Colm Mac Eochaidh the case dealt with issues that “strike to the heart of the direct provision system” and requested the earliest possible date for hearing.

Referring to the “systemic challenge” involved, counsel for the State asked for time to consider the papers.

Mr Justice Mac Eochaidh said he accepted there was a “need for urgency” given the “unacceptable circumstances” of the direct provision system. He put the matter back for mention on September 17th.