Direct provision: time to grasp the nettle
Using social policy as an instrument of border control risks closing avenues to integration
With its declaration that the absolute ban on asylum seekers seeking paid work is unconstitutional, the Supreme Court has produced a landmark decision that could reverberate widely. In a clear, humane and cogently argued judgment, the seven-judge court has cut through years of political obfuscation about the asylum process to deliver a strong statement on the individual rights of those who seek sanctuary in the State.
The problem is that the Refugee Act, which bans asylum seekers from seeking work, does not just 'severely limit' the freedom to seek work but 'removes it altogether'
The case was taken by a Burmese asylum seeker who spent eight years in the direct provision system. But this was plainly also a test case that drove at a key plank of the State’s asylum policy. In its decision, written on behalf of the seven by Mr Justice Donal O’Donnell, the court stressed that the State could legitimately restrict employment for asylum seekers. The problem is that the Refugee Act, which bans asylum seekers from seeking work, does not just “severely limit” the freedom to seek work but “removes it altogether”. The resulting damage to an individual’s self-worth, and sense of themselves, “is exactly the damage which the constitutional right seeks to guard against”, the judgment notes. Evidence of the Burmese man’s “depression, frustration and lack of self-belief” bore that out.
Successive governments have argued that a more generous system would create a 'pull factor' and lead to a spike in applications
The court has left room for the Government to respond: the case has been adjourned for six months, and the judgment makes clear that a time-limited work ban, rather than the current open-ended one, could pass the constitutional bar. But the Government should take the opportunity to overhaul the degrading direct provision system, which is largely unchanged since 1999. Successive governments have argued that a more generous system would create a “pull factor” and lead to a spike in applications. Yet among EU states, just one other – Lithuania – has come to the conclusion that the answer is to ban paid work at all stages of the process.
Using social policy as an instrument of border control in this way is not only morally questionable but risks creating long-term poverty and closing avenues to integration.