Overview of Direct Provision & Government Policy

1. Overview of Direct Provision & Government Policy FLAC – the Free Legal Advice Centres

2. Direct Provision • Asylum seekers allocated accommodation on a full board basis by Reception and Integration Agency, a unit of the Department of Justice and Equality • Scheme introduced in 1999 – Official Government policy in 2000 • Direct Provision Resident • Asylum Seeker • A person who seeks to be recognised as a refugee in accordance with the terms of the 1951 Geneva Convention Relating to the Status of Refugees and the related 1967 Protocol • Persons seeking another form of protection • Leave to Remain • Subsidiary Protection under the EU Qualification Directive FLAC

3. Accommodation Centres and Residents • 40 centres • 1 reception centre - Balseskin • 36 Accommodation Centres • Former hotels, hostels, guesthouses, convents, nursing homes, system built facilities and a mobile home site • 2 Self Catering Centres, Dublin and Co. Louth • 7 of these centres are State Owned but all are managed by private contractors • RIA Statistics indicate that as of September 2011 there were 5585 residents • 2026 children and young people under 18 • 2303 people aged 18-35 • 1238 people aged 36-65 • 11 people over the age of 65 • 7 people where date of birth was not yet known FLAC

4. Length of time spent in direct provision • Government’s original intention • Six months in Direct Provision Accommodation – Minister for Justice John O’Donoghue • Moved into self catering accommodation after 2 years • Policy reversed • Deliberate reduction in number of self catering centres • Two centres closed in 2010 and limited spaces to remain in self-catering • As of September 2011 • 691(12.8%)– less than 12 months • 732 (13.4%)– between 1 and 2 years • 1046 (19.3%)- between 2 and 3 years • 2962 (54.5%)- Over 3 years • 154 cases – duration of stay not categorised • Statistics available at www.ria.gov.ie FLAC

5. Dispersal • Policy to compliment direct provision and is a key element of the scheme • Asylum seekers are dispersed to various parts of the country • No needs assessment carried out before deciding where to place an individual asylum seeker • No consultation with local communities, NGO’s or asylum seekers themselves • Residents cannot request where they are placed FLAC

6. Direct Provision and Dispersal: A Deterrence? • Is the direct provision and dispersal system seen as a deterrent to people seeking the protection of the State? • Policy Decisions acting as push factors • System • Direct Provision vs. Self Catering • Dispersal • Length of Stay • Lack of Autonomy • Prohibition on the Right to Work • Opt-out of EU Reception Directive • Restricted access to social welfare payments • Removal of access to Rent Supplement • Habitual Residence Condition (HRC) • Integration policies do not apply prior to obtaining status to remain • Not included in Anti-Poverty and Social Inclusion strategies FLAC

7. Lack of Autonomy • Direct provision resident does not have a choice where he or she will live • No right to transfer • Set meal times • Cannot cook for themselves • Cannot store food • Limited freedom of movement • Location and financial constraints • Have to share room • Lack of Privacy • Whole families share one or two rooms • Single people share with up to 3 other people in some instances FLAC

8. Prohibition on Right to Work • Direct Provision residents prohibited from working • S. 9(4)(b) Refugee Act 1996 • Ireland and Denmark only two EU Countries to opt-out of the Reception Directive • Right to work seen as a pull factor • Article 6 International Covenant on Economic Social & Cultural Rights “the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts” FLAC

9. Limited Social Welfare Entitlements • Weekly Direct Provision allowance €19.10 per adult, and €9.60 per child- the only social welfare payment not to have increased in the past 11 years • Exceptional Needs Payments (ENPs) • Not subject to the Habitual Residence Condition • Usually granted 2 payments per year for clothing • At discretion of Community Welfare Officer • Other payments such as the Back to School Clothing Allowance • No automatic entitlement • Restriction on Rent Supplement introduction in 2003 • Value for Money Report by the Irish Naturalisation and Immigration Services (INIS) concluded that removal of rent supplement was a factor which led to a reduction in asylum applications FLAC

10. Habitual Residence Condition (HRC) • Introduced on 1 May 2004 • EU enlargement • To prevent ‘welfare tourism’ • British government introduced residency condition • Applied to: • All means tested allowances • Child Benefit • Prior to introduction of HRC DP residents entitled to certain social welfare payments if they met qualifying criteria • If they already received child benefit they would continue to receive it for other children so as not to create inequality amongst siblings FLAC

11. Legislation amending HRC • Section 246 of the Social Welfare Consolidation Act 2005 (Principal Act) • Section 246 of Principal act amended by • s. 30 of the Social Welfare and Pensions Act 2007 (Swaddling criteria put on statutory footing) • ss. 186D and 161G of Social Welfare and Pensions Act 2008 (HRC applied to Domiciliary Care Allowance and Blind Allowance) • S. 15 of the Social Welfare and Pensions (No. 2) Act 2009 (Certain categories of person excluded from satisfying HRC) FLAC

12. Initial Response to Refusals by Social Welfare Appeals Office on basis of HRC • Inconsistency in decisions by Appeals Officers but some relied on following decision of Chief Appeals Officer (CAO) which said that an asylum seeker or person seeking another form of protection could be found habitually resident • In 2007 the CAO held: “It seems to me therefore, that the failure of the State to provide for the expeditious hearing of asylum appeals, thereby giving rise to the artificial status of entitled to remain pending appeal, should not be used as a reason for penalising appellants who can exercise no control over the timescale within which their artificial status will be finally determined.” FLAC

13. Strategic cases taken by FLAC • In 2008 four asylum seekers were found habitually resident and granted a payment on appeal but the Department of Social and Family Affairs refused to make payment • The Department sought a review of these decisions by the CAO under section 318 of the Principal Act • These appeals had been taken by OPEN, Integrating Ireland and FLAC • In five further similar appeals where a negative decision was reached, FLAC sought a review by the CAO FLAC

14. CAO’s decisions • In all nine decisions the CAO found in favour of the appellant. He held: • Individual circumstances must be taken into account • “The facts of the matter are that the Goncescu case did not have a social welfare relevance and that the judgment pre-dated the introduction of the habitual residence legislation”. • The legislation did not exclude any category of persons from accessing social welfare payments FLAC

15. Social Welfare and Pensions (No. 2) Act 2009 • In December 2009 an amendment was introduced to exclude all individuals in the asylum, leave to remain or subsidiary protection processes from being able to satisfy the HRC in order to qualify for social welfare payments • Introduced one week after the CAO’s final set of decisions • “Right to reside” test also introduced FLAC

16. Government Anti- Poverty and Social Inclusion Policy • Government definition of poverty • People are living in poverty if their income and resources (material, cultural, social) are so inadequate as to preclude them from having a standard of living which is regarded as acceptable by Irish society generally. As a result of inadequate income and resources people may be excluded and marginalised from participating in activities which are considered the norm for other people in society • National Action Plan for Social Inclusion 2007-2016 • Towards 2016 • Lifecycle approach –places the individual at the centre of policy development and delivery • 2026 residents under 18 • 3541 residents of working age • 11 people over the age of 65 • Children and people of working age represent the majority of residents FLAC

17. Anti Poverty and Social Inclusion measures in the Programme for Government • “The elimination of poverty will be an objective of this Government. We are committed to achieving the targets in the National Action Plan for Social Inclusion to reduce the number of people experiencing poverty” • “We will adopt a new area based approach to child poverty, which draws on best international practice and existing services to tackle every aspect of child poverty. “ • “We will promote policies, which integrate minority ethnic groups in Ireland, and which promote social inclusion, equality, diversity and the participation of immigrants in the economic, social, political and cultural life of their communities” FLAC

18. Children, Poverty and Social Exclusion • “Every child should grow up in a family with access to sufficient resources, supports and services, to nurture and care for the child, and foster the child’s development and full and equal participation in society” • “Every child should have access to world class health, personal social services and suitable accommodation” (National Action Plan for Social Inclusion 2007-2016 &Towards 2016) • UN Convention on the Rights of the Child • Article 3 (1) “Best Interests of the Child” • Article 2 (2) Prohibition against discrimination • Child Benefit – formerly a universal payment • Creates inequality between children living in Ireland FLAC

19. People of Working Age • “Employment has proven to be a major factor for people exiting poverty and also influences quality of life and social well being” National Action Plan for Social Inclusion 2007-2016 • Asylum seekers prohibited from working • “...while social welfare income support remains crucial and must be adequate to meet needs, passive income support alone is not sufficient if poverty and social exclusion are to be comprehensively addressed” National Action Plan for Social Inclusion 2007-2016 • Asylum seekers unable to access a wide range of social welfare supports FLAC

20. Conclusions • Direct provision and dispersal used as a ‘push factor’ • Scheme established to suit needs of those who administer it rather than the needs of the people who live within the system • State is obliged to protect and promote the rights of all persons within its jurisdiction regardless of immigration status • States are granted a degree of discretion in relation to immigration but any such discretion must be proportionate to the legitimate aim pursued • Changes in social welfare legislation have been aimed to reduce the number of asylum applications • Conditions for direct provision residents have deteriorated since the introduction of the scheme eleven years ago FLAC

21. More Information • See our website www.flac.ie • FLAC report: One Size Doesn’t Fit All (2009) • Direct provision campaign page: http://www.flac.ie/getinvolved/campaigns/current/direct-provision-campaign/ • Briefing Notes on the HRC and CAO’s decisions August and December 2009 • FLAC news FLAC