The Irish Times view on direct provision: The courts step in – again

The Court of Appeal has made an important decision on Irish-citizen children in the asylum system

Ellie Kisyombe, from Dublin, at a rally in 2016 calling for the end to the direct provision system for asylum seekers, in Dublin. Photograph: Dara Mac Dónaill

Ellie Kisyombe, from Dublin, at a rally in 2016 calling for the end to the direct provision system for asylum seekers, in Dublin. Photograph: Dara Mac Dónaill

 

Under the Social Welfare Act, the mother of an Irish-citizen child living in direct provision cannot receive child benefit until she gets residence rights in the State. Anyone can see this is an unfair and mean provision. Now we know it’s also unconstitutional.

In an important judgment written by Mr Justice Gerard Hogan, the Court of Appeal ruled that the relevant section of the Act breached the equality provisions under Article 40.1 of the Constitution. The three-year-old girl in the case lives in direct provision with her Nigerian mother, who sought child benefit in October 2015 but was refused until she got residence status in January 2016. A related case involving an Afghan couple and their children, also living in direct provision, raised similar issues. The court suspended the declaration until February 2019, giving the Government time to prepare for the consequences.

The judgment is further evidence of what has now become a trend: the use of suspended declarations of unconstitutionality, deployed initially by the Supreme Court as a way of containing the immediate fallout from such decisions, appears to be making senior judges quicker to strike down laws. The latest judgment also suggests an interesting judicial willingness to explore the equality provisions in the Constitution in new ways.

More significant still, the judgment is a reminder that in recent years it has been the courts, not the Oireachtas, that has been pushing back against the restrictions of the direct provision system. Just last year, the Supreme Court struck down the absolute ban preventing asylum seekers working in the State as unconstitutional.

Meanwhile, the Government is failing to get to grips with the wider issue. A study by the Economic and Social Research Institute (ESRI) this week found that despite a new asylum applications system, which was designed to speed up the process, waiting times today are actually longer than they were in 2015. The report blamed staff shortages. But the real problem is a lack of political will to tackle chronic problems in a system that provides for some of the most vulnerable people in society.

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