Patricia Brazil, Trinity College Dublin
Introduction
November 2019 marked the 20th anniversary of the introduction of the direct provision system in Ireland. During that time criticism has been levelled at conditions in some direct provision centres, the length of time spent by some people living in direct provision and the impact on both the mental and physical health of those people. The McMahon Report in 2015 made a number of recommendations for reform of the direct provision system including in relation to living conditions in designated centres, improvements in supports available for protection applicants and changes to the existing determination process. Two high profile cases in recent years also impacted on the direct provision system: the High Court decision in CA v Minister for Justice [2014] IEHC 432 led to the introduction of an independent complaints mechanism for persons living in direct provision, while the decision of the Supreme Court in NHV v Minister for Justice [2017] IESC 35 struck down the absolute prohibition on the right to work for asylum seekers and ultimately led to the State’s decision to opt into the Recast Reception Conditions Directive.
Despite some improvements to the direct provision system as a result of these developments, a report by NASC in 2017 highlighted that not all of the McMahon recommendations were implemented, including the introduction of vulnerability assessments, measures to address the backlog in processing protection applications and improvements in physical conditions in some direct provision centres. The Ombudsman’s Annual Report for 2019 noted a number of complaints related to the use of emergency accommodation as part of the direct provision system, sometimes in remote locations with limited access to services and supports.
Direct provision and the pandemic
As of March 2020, there were approximately 7,400 people living in direct provision and emergency accommodation in Ireland. Concerns were quickly expressed about the impact of the pandemic on those living in direct provision, including the ability to maintain social distancing guidelines in light of the sometimes overcrowded living conditions. Direct provision was described by one infectious disease specialist as a “powder keg” for COVID19, with calls from NGOs including the Irish Refugee Council to move people in at-risk categories to alternative locations in order to enable self-isolation and cocooning. While the HSE extended access to temporary accommodation for healthcare workers living in direct provision, and the Department of Justice introduced a number of measures in light of the pandemic including off-site self-isolation facilities, MASI (Movement of Asylum Seekers in Ireland) issued a statement criticising the Department’s response on the basis that the measures “[did] not adequately address the situation of asylum seekers having difficulty observing social distancing.”
The Skellig Star
These concerns were brought into sharp relief when it emerged in April 2020 that a number of residents at the Skellig Star Hotel in Cahirsiveen, a recently opened direct provision facility, had tested positive for COVID19. There were reports that residents at the Skellig Star were being unlawfully deprived of their liberty, although the Department of Justice insisted that the doors were not locked and that residents were merely advised to adhere to HSE guidelines regarding self-isolation for the duration of the quarantine period. Other complaints raised included inadequate cleaning and sanitation protocols, lack of social distancing in relation to communal meals and the lack of Garda vetting for some staff prior to the opening of the centre. There have been calls for an inquiry into the decision to transfer over 100 asylum seekers to the Skellig Star in the midst of the pandemic and the lack of consultation with the local community around the opening of the centre.
However, reports have since emerged of further outbreaks in other direct provision centres. On 10 August 2020 the Irish Refugee Council published a report entitled “Powerless”: Experiences of Direct Provision During the Covid-19 Pandemic, which reported that 50% of respondents were unable to socially distance themselves from other residents during the pandemic and 42% shared a bedroom with a non-family member. As the CEO of the IRC Nick Henderson commented on the release of the report, “Until and unless single or household occupancy accommodation is provided, Direct Provision will remain vulnerable to outbreaks.”
Pandemic Unemployment Payment
There was also criticism of the exclusion of asylum seekers who had been in employment from the Covid19 Pandemic Unemployment Payment Scheme. Although this payment had initially been granted to some asylum seekers who were unable to work because of the pandemic, the Department of Employment Affairs and Social Protection subsequently decided that asylum seekers living in direct provision were not eligible for the CPUP of €350 as their bed and board was provided and they were eligible for the direct provision allowance of €38.80. The Irish Human Rights and Equality Commission has expressed concern about the exclusion of asylum seekers from the CPUP scheme and Dr Liam Thornton has queried the lawfulness of this exclusion on a number of grounds.
Recent developments
On 5 June 2020, as the Government confirmed that Ireland was on course to move to phase 2 of the roadmap for easing the COVID-19 restrictions, the Expert Group on the Provision of Support, including Accommodation, to Persons in the International Protection Process chaired by Dr Catherine Day delivered a briefing note on its work to date. According to the Irish Times, the group said “the coronavirus pandemic has exposed the ‘unsuitability’ of the current system” and made a number of recommendations that could be introduced immediately to improve the direct provision system. The Minister for Justice welcomed the briefing note and indicated that he had asked the Secretary General to undertake a review of the Department’s “action on direct provision in the early stages of the pandemic, with particular reference to opening centres such as the one in Cahersiveen, to inform our actions in any subsequent phases. To ensure it is done quickly as possible, this review will be conducted internally with HSE input/involvement. We will seek external expert input on it when it is near completion.”
Conclusion
The Programme for Government agreed in June 2020 between Fianna Fáil, Fine Gael and the Green Party includes a commitment to ending the direct provision system and replacing it with “a new International Protection accommodation policy, centred on a not-for-profit approach.” Responsibility for direct provision has transferred from the Department of Justice to the Department of Children, Disability, Equality and Integration under Minister Roderic O’Gorman, who has described this pledge as “a key priority” and committed to moving people out of emergency hotel and B&B accommodation. A Government White Paper is to be published by the end of the year, which will take into account the report of the Day Group which is due to be published in September 2020. The outcome of the review by the Secretary General of the Department of Justice on its handling of the early stages of the pandemic is awaited, as is a proposed investigation by the Ombudsman into complaints by residents of the Skellig Star. As noted in the Irish Times editorial on 21 July 2020 “At no point since direct provision was established in 2000 have conditions been more propitious for its dismantling.”
Patricia Brazil is the Averil Deverill Lecturer in Law at Trinity College Dublin and a member of the COVID-19 Law and Human Rights Observatory.
Suggested citation: Patricia Brazil, 'Direct provision and COVID19' COVID-19 Law and Human Rights Observatory Blog (31July 2020) https://tcdlaw.blogspot.com/2020/07/direct-provision-and-covid19.html
Return to home page of the COVID-19 Law and Human Rights Observatory.
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