What the UK can learn from Ireland’s ‘Direct Provision’ Controversy

By Conor Courtney

Direct Provision is an Irish approach to asylum law which incorporates a series of rights, and constraints, placed upon asylum seekers. These restrictions are places on those who are living in Ireland, awaiting the decision as to their status.

Although the State provides many necessities with regards to asylum applicants, such as healthcare, dental care, housing, food, and a weekly stipend, the corollary of these entitlements are equally important deprivations. As an asylum seeker, the State has maintained that there is no right to seek out employment.

On its face, this lacking right would not seem overly onerous, however, it must be considered in light of the excessive delays which occur during the asylum seeking process.[1] An interesting example of the right to work being unfairly restrictive comes from the case of N.V.H. v Minister for Justice.[2]

This case centred around an asylum seeker who had twice been denied protection from the State. Direct Provision dictated the Appellant’s life for 8 years, denying him the right to seek out employment, and forcing him to live in State-run housing conditions. In 2013, he was offered work within the Direct Provision centre, but was precluded from accepting by S.9(4)(b) of the Refugee Act 1996.[3] Ultimately, his application for asylum was accepted, however, he challenged the constitutionality of Direct Provision, which applies to all asylum seekers.

It was held that his locus standi remained intact, as the infringement was still stark in its effect. Although the appellant was a non-citizen, it was contended that these conditions contravened the protections to human dignity enshrined within the Irish Constitution. The Supreme Court witheld making official orders for six months, allowing the legislature to consider how to address the situation.

The Irish government intended to abide by EU (recast) Reception Conditions Directive, allowing asylum seekers to apply for six-month contracts of employment, if their application for asylum had not been decided upon within nine months.[4]

For the individual at the centre of this case, his application, appeals, and judicial reviews, took over eight years. During that period, he was unable to seek out employment, even when offered employment in the State controlled direct provision housing centres. He was even refused the right to work from the minister for employment, to whom he wrote directly, seeking an express entitlement. As such, the proposed legislative reform was unsatisfactory to ensure the protection of human rights, as his right to work would have been equally curtailed under these provisions.

Although the UK does not have ‘Direct Provision’, many similarities can be seen in the use of Immigration Removal Centres, or also known as Immigration Detention Centres. These State-run centres house asylum applicants who have been unsuccessful in their claims for asylum, or who are awaiting appeals or judicial review of their refusal to remain. Although there are 72-hour time limits on housing pregnant women, there are no explicit time limits on housing detained men. The BBC, earlier this year, reported that, “The Home Office has “utterly failed” to ensure the safety of people held in UK immigration detention centres”.[5] This claim came in the wake of a report which noted that there was no restriction on indefinite detention, and little was done, “to protect vulnerable detainees, for example those who have been tortured”.

The extent of the potential for harm to human rights was noted in the fact that there were reported cases where, due to “bureaucratic inefficiencies”, some asylum seekers had been detained for more than three years.

Many of the same human rights issues at play in these extensive detention periods in Immigration Removal Centres relate to the Irish Direct Provision case. If there is anything to be learnt from the Irish Supreme Court, it is that these detainees, although non-citizens, are entitled to have their basic human rights protected.

Although the Home Office has failed many of these detainees, legislative reform may be able to resolve many of these issues, such as those suggested by the report, including limits to detention periods. Yet the Supreme Court and legislative reforms have been slow to respond to these issues. However, there are meaningful ways for the public to impact this situation. There are many charities and campaigns fighting on behalf of asylum seekers. In the UK, Refugee Action’s Lift the Ban Campaign is petitioning for working rights for asylum seekers. They hope to bring an end to a system where people are refused their right to work and are forced to subsist on just £5.39 per day. These restrictions are in place despite their report claiming that 71% of the public agree that people seeking asylum should be allowed to work.[6] Unfortunately, UK law requires that this work be suspended in the lead up to the General Election on 12 December, further delaying the entitlements of asylum seekers. However, campaigning resumes as normal after this date.

Similarly, in Ireland, the migrant and refugee rights organisation NASC is fighting to end direct provision. NASC is the Irish word for ‘link’ and they strive to link migrants and refugees with their rights. They have been campaigning for an end to direct provision since 2000 and continue to lobby for the full implementation of the recommendations of the Working Group on the Protection Process and Direct Provision.

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[1] Working Group Report, ‘Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers’, (Final Report, June 2015), p.47.

[2] N.V.H -v-Minister for Justice & Equality and ors [2017] IESC 35.

[3] Refugee Act 1996, S.9(4)(b) – ‘An applicant shall not— seek or enter employment or carry on any business, trade or profession during the period before the final determination of his or her application for a declaration’.

[4] EU (Recast) Reception Conditions Directive (2013/33/EU).

[5] Shamaan Freeman-Powell, ‘Home Office ‘utterly failing’ over immigration detention centres’, (BBC News, 21st March, 2019), (https://www.bbc.co.uk/news/uk-47645883).

[6] Refugee Action, ‘Lift the Ban Campaign’, (https://www.refugee-action.org.uk/lift-the-ban/)

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