The Rights of Others: Asylum Seekers & Direct Provision in Ireland

Dr Liam Thorntonliam.thornton@ucd.ie

A. Introduction

Key Issues

• What is direct provision?

• Why is the system of direct provision problematic from a rights/ethics perspective?

• To what extent can international & European human rights law lessen rights differentiation?

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The Right to Have Rights

• “[T]he national appropriation of ‘human rights’ – their entanglement with citizenship – has given rise to new categories of persons without rights, such as refugees, displaced and stateless persons. How are we to conceive of the rights of these people, whose number is in the millions in the world today?”

President Michael D. Higgins, 06 June 2014

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B. The System of Direct Provision in Ireland

Protection Applicants

19982000

20012002

20052009

20122013

416400

2000

4000

6000

8000

10000

12000

14000

Protection Applicants

People in Direct Provision in Ireland

2000 2001 2002 2005 2009 2012 20130

1000

2000

3000

4000

5000

6000

7000

People in Direct Pro-vision

Time Spent in Direct Provision (Based on Initial Asylum App)

1 Year or less

1-2 Years 2-4 Years 4-6 Years 6 Years +0

200

400

600

800

1000

1200

1400 As of at December 2013

Number

Why/How Was Direct Provision Established?

• Non Statutory Basis

• Abuse of welfare state

• Implied criminality

• Surveillance

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C. Judicial Challenges to Direct Provision in Northern/Ireland

From the Irish Supreme Court

• “…the State makes available to [asylum] applicants an elaborate system of legal advice and free legal representation as well as social welfare or direct provision for their needs. All this is as it should be…”

Mr Justice Hardiman, Lobe & Osayende v Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1 at p. 128.

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From the Northern Ireland High Court

• Judicial Review by ALJ and Others• NI Court would not send back asylum seekers to direct provision, why?• Unable to work in the Republic of Ireland• Forced to live in a communal direct provision hostel;• The minor children, B and C, could “develop their own sense of

belonging and separate identity” in Northern Ireland, which they could not do in direct provision centres in the Republic of Ireland;

• Significant physical and mental health issues amongst asylum seekers in direct provision;

• As a matter of UK policy, the children would not be returned to Sudan, but this is not automatically the case in Ireland.

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Direct Provision before the Irish High Court

• C.A and T.A. (a minor) v Minister for Justice and Equality

• Key arguments of the applicants

• What next?

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D. The Promise and Limits of Human Rights

International Human Rights Law

• Presumption that human rights apply to all equally, but legitimate and proportionate differentiation permitted

• Compare approach of the Committee on ESCR and Committee on Rights of the Child

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European Human Rights Law

• European Union Law & Reception Conditions Directive

• European Court of Human Rights: Inhuman and degrading treatment

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E. The Rights of Others: Asylum Seekers in Direct Provision

• The Limits of Rights Discourse

• The Lack of National/Public Concern

• Justifying rights for ‘the others’

“Nothing sacred in the abstract nakedness of being human”

Arendt, The Origins of Totalitarianism, 1951

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For detailed analysis, see:

• Thornton, L. (2014) The Rights of Others: Asylum Seekers and Direct Provision in Ireland

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