Order of Business, 23 April 2013

Tuesday, 23rd April 2013

At the weekend I had the pleasure of attending the Scouting Ireland delegate conference, which brought together 800 delegates representing 40,000 members. Two motions which were voted on will be of interest to the House. One was on Scouting Ireland’s fears the proposed sale of Coillte will threaten its open access policy. Unbeknownst to me until I arrived, another motion had been tabled calling on the Minister for Justice and Equality to enact legislation requiring ISPs operating in Ireland to block access to all child abuse material, as has been done in Denmark, Sweden, Finland, Malta, Italy and Britain. I have raised this issue in the House and we have had a good discussion on it. Scouting Ireland voted unanimously on the motion. The Minister, Deputy Shatter, has committed that blocking will be fully considered in the context of the development of the planned sexual offences Bill. I am very concerned this Bill is scheduled for 2014. This is an urgent matter. It is about protecting real children from real abuse in the real world. I call on the Leader to convey to the Minister a request to bring forward a separate Bill to deal with this distinctly.

Today is the national day of action and raising public awareness on direct provision. I am disappointed and confused the Adjournment matter I addressed to the Minister for Social Protection, Deputy Joan Burton, has been ruled out of order. Since the introduction of the Social Welfare and Pensions (No. 2) Act 2009, asylum seekers cannot ever be considered habitually resident in the State. Since access to most welfare payments, including supplementary welfare allowance, is now restricted to those habitually resident in the State, and since asylum seekers cannot be considered habitually resident, I asked what is the legislative basis for the continued accommodation and payments made to asylum seekers.

This is a question for the Minister for Social Protection. For example, the payment slips to asylum seekers refer to the Department of Social Protection. However, I take the Leader on his word that the Minister has no responsibility for this matter, even though the payment slips clearly state “Department of Social Protection”. I am now being directed back to the Department of Justice and Equality where I did not get an answer to this question last week, so I ask the Leader to arrange for a debate on direct provision. I have been moved from one Department to another on this issue, yet nobody is willing to take responsibility for it. I believe that we are operating outside a legislative basis with the payments. We need an answer to this question, rather than being shuttled between Departments.

Adjournment Motion – Direct Provision by the Department of Justice and Equality

Thursday, 18th April 2013

Senator Jillian van Turnhout: Although I am disappointed that none of the Adjournment matters I have raised in regard to direct provision has been taken by the Minister for Justice and Equality, who has direct responsibility for the matter, I welcome the presence of the Minister for Health.

The system of direct provision has been in operation since April 2000. However, concerns have been expressed about the lack of a legislative basis for the operation of direct provision. In light of the Ombudsman’s concern about the operation of the former mobility allowance scheme, it is essential that the rule of law operates in all aspects of our social welfare code. When direct provision was initially introduced 13 years ago, it was viewed as a limited system that would operate for a maximum of six months. However, the legal basis for the system is now unclear. When it was initially introduced it was argued that the direct provision for asylum seekers was permitted by providing supplementary welfare allowance in kind rather than in cash. Asylum seekers were offered bed and board by the Reception and Integration Agency and were provided with a weekly allowance of €19.10 per adult and €9.06 per child, amounts that have not changed since 2000.

Since the introduction of the Social Welfare and Pensions (Miscellaneous Provisions) Act 2009, asylum seekers cannot be considered as habitually resident in the State. Given that access to most welfare payments, including supplementary welfare allowance, is restricted to those who are habitually residents, what is the legislative basis for the continued accommodation of and payments to asylum seekers?

Dr. Liam Thornton, a researcher on the law and policy of direct provision in UCD’s school of law, recently published an article on the dubious legality of the direct provision system. The article notes that in 2006 the then Secretary General of what is now the Department of Social Protection, Mr. John Hynes, raised his concern with the then Secretary General of what is now the Department of Justice and Equality, Mr. Seán Aylward, that the regular direct provision payments to asylum seekers were outside the powers, or ultra vires, of the Department of Social Protection. According to documents received by Dr. Thornton after a freedom of information request, an attempt was made in 2006 or 2007 to place the direct provision payment on a legislative footing. However, the attempt was subsequently abandoned. I can provide the Minister with a copy of Dr. Thornton’s article, the correspondence between the Secretaries General and the draft legislation if he so desires.

It is necessary for the Minister for Justice and Equality to provide an assurance that the direct provision system has a clear legislative basis in Irish law. It is of serious concern that the system leaves individuals and, in particular, families to languish for several years without any definitive decision on their entitlement to remain in the State. I welcomed the Immigration, Residence and Protection Bill 2010 but it has been on Committee Stage in the Dáil since 2010. We have now been waiting for that Bill for eight years and counting. What is the legislative basis for the continued operation of the direct provision system?

An Cathaoirleach, Senator Paddy Burke: Before I call the Minister to reply, I ask Members to join me in welcoming the Right Honourable Ivan Rombouts, the honorary consul in Antwerp.

Minister James Reilly: He is very welcome. I recognise the tie. I am responding on this topic on behalf of my colleague, the Minister for Justice and Equality. The question asked by the Senator presupposes that there must be a specific legislative underpinning for the provision of State services to persons who otherwise would not be entitled to such services. Legislating for legislation’s sake is unwise. If a case is being made for a change in how asylum seekers are accommodated, which is a view that the Senator has expressed on a number of occasions, that is an issue for policy in the first instance rather than legislation.

The direct provision system ensures the delivery of services alongside legislative provisions which would otherwise specifically prohibit asylum seekers from being provided with the basic necessities of life. For example, asylum seekers cannot work under section 9(4)(b) of the Refugee Act 1996, cannot access rent allowance under section 13 of the Social Welfare (Miscellaneous Provisions) Act, 2003 and are not entitled to a range of benefits, including child benefit, as they are deemed to be not habitually resident under section 246(7) of the Social Welfare Consolidation Act 2005.

As an administrative system, direct provision is unique in this State but as a result of it no asylum seeker has ever been left homeless. Clearly the system is not without its faults but in the 13 years of its existence over 51,000 asylum seekers have been accommodated under it. Asylum seekers receive nourishment on a par with, and in some cases superior to, that available to the general population. They receive a health service on the same basis as Irish citizens and in many cases the service is far superior to what is available in their countries of origin. Children of asylum seekers are provided with primary and secondary education in the local community on the same basis as the children of Irish citizens. The system of direct provision is not unique to Ireland. Many other countries operate similar systems for meeting the reception needs of asylum seekers and all face challenges which are broadly similar to the issues arising here.

There are no cheaper alternatives to the direct provision system. If we were operating a system which facilitated asylum seekers in living independent lives in individual housing with social welfare support and payments, the cost to the Exchequer would be double what is currently paid under the direct provision system, even discounting the additional pull factor this would entail.

This was a key finding in the value for money report in 2010.

Allowing asylum seekers access to the full array of welfare and housing benefits would run a real risk of resulting in a large upsurge in economic migrants masquerading as asylum seekers coming here in the expectation of accessing these services. Furthermore, in respect of any major change of policy, we have to take account of the common travel area between Ireland and the United Kingdom which facilitates free movement between the jurisdictions.

It must be borne in mind that the persons residing in direct provision accommodation are here for a specific reason, namely, to claim international protection from the State. This entitlement is protected by international obligations which the State has entered into and by a comprehensive national and EU legal framework and accompanying administrative processes which govern the processing of protection applications.

The Minister acknowledges that there is an issue with the length of time applicants spend in direct provision accommodation. While not suggesting applicants are not entitled to the protection of the courts and due process, a consequence of frequent recourse to the courts to challenge decisions in these legislative processes is an extension of the length of time spent in direct provision accommodation. This underlying problem does not arise from a lack of legislation – quite the opposite. There are many reasons applicants spend lengthy periods in direct provision accommodation. I have referred to legal challenges as one reason. Undoubtedly, another significant issue is the cumbersome and multi-layered legal protection process in the State. There is a clear imperative to change and radically reform that process and the Minister is committed to introducing it.

As the Minister has stated, he intends to republish a revised immigration, residence and protection Bill which will substantially simplify and streamline the existing arrangements for asylum, subsidiary protection and leave to remain applications. It will do this by making provision for the establishment of a single application procedure in order that applicants can be provided with a final decision on all aspects of their protection applications in a more straightforward and timely fashion, thus reducing the length of time they spend in the direct provision system.

Pending the enactment and commencement of the new legislation and with a view to improving processing, the Minister proposes to introduce new arrangements for the processing of subsidiary protection applications in the light of recent judgments in the superior courts. His Department, in consultation with the Attorney General’s office, is developing a new legislative and administrative framework for the processing of current and future subsidiary protection applications. This work is being given high priority and applicants will be advised of the new arrangements as soon as possible. In the meantime, the system is overseen by the Reception and Integration Agency of the Department of Justice and Equality. The RIA is subject to the same Civil Service obligations of fairness in the implementation of policy as any other area of government in implementing a scheme, statutory or non-statutory. It is worth noting that since the Minister took office, the number of persons being accommodated in direct provision accommodation has fallen significantly, by approximately 1,000 or 25% in the period in question.

Senator Jillian van Turnhout: Perhaps my question was not clear enough. I will take it up again with the Minister for Social Protection. The correspondence between the then Secretary General of the Department of Social Protection and the Department of Justice and Equality in 2006 states payments made to asylum seekers were ultra vires the Department of Social Protection. The Social Welfare and Pensions Act 2009 clearly states asylum seekers cannot ever be considered habitually resident in the State. My question is: how is the State making these payments? I advise the Cathaoirleach that I propose to submit a request to raise this matter on the Adjournment with the Minister for Social Protection. While I appreciate the response given by the Minister for Health, Deputy James Reilly, it does not answer my question.

Minister James Reilly: The Minister would like to be here, but that is not possible. On his behalf, I acknowledge the points made by the Senator. However, this is essentially about policy rather than legislation, as emphasised by the Senator in her follow-up remarks. The reasons behind that policy remain unchanged. The direct provision system was not put in place by accident; it was a necessary response to the increasing number of asylum seekers arriving in the State. Before 1999, asylum seekers were treated as homeless persons under the structures in place. These structures were unsuited to the situation facing Ireland; the homeless persons service of the then Eastern Health Board could not cope and there was a serious prospect of widespread homelessness among asylum seekers. The direct provision system is only one element of the State’s response to its international obligations on the asylum issue. As well as educational, health and welfare costs, there are asylum determination system and downstream judicial and policing costs. Meeting our international obligations in this respect consumes considerable public moneys. However, Ireland is not unique in this respect. All countries which take this issue seriously are faced with similar calls on their financial resources. The role of the Reception and Integration Agency is to adapt to circumstances in ways which specific legislative provisions might not anticipate. In recent years it has introduced child protection measures, including Garda vetting, and will in the coming months begin to publish on its website completed inspection reports on each of the centres under contract to it. It has also to adapt to the decline in the number of persons seeking accommodation. In the four year period 2009 to 2012, inclusive, it closed 25 centres and accommodated 2,161 fewer persons. This flexibility and adaptability of the direct provision system would not be assisted but, possibly, hindered by specific legislation underpinning it.

Senator Jillian van Turnhout: My question is about the legal status of the payments being made. It is not about the legal status of the policy in place. I appreciate the Minister’s response, but it does not address my question.

Minister James Reilly: I will make the Minister for Justice and Equality, Deputy Alan Shatter, aware of the position.

Order of Business, 27 March 2013

Wednesday, 27th March 2013

On behalf of the Independent group of Senators, I pay tribute to and thank Jimmy Walsh. As I will have only been a Member for two years in May next, my memories of Jimmy do not go back as far as those of other speakers. However, I used to read Jimmy’s accounts of Seanad proceedings before I entered the Oireachtas and had the opportunity to meet the legend. I thank him most sincerely for his advice and the insights he gave me in the corridors of Leinster House. His journalistic skills are clear. He is able to get to the heart of an issue and understand what speakers are driving at. He has given me great encouragement in my work as a Senator, including, on occasion, to press a little harder on certain issues as perhaps I seek consensus a little too much. We will, however, leave that issue for another discussion. Even in the relatively short time I have known Jimmy, I feel I have made a real friend, someone who will give critical advice but also explain in his newspaper articles what takes place in the House. I echo the tributes paid to him.

The issues of insolvency and early childhood education and care must be decoupled. The latter is about the child, not the status of his or her parents or whether they are working. We need to decouple these issues and discuss them separately.

On the issue of direct provision, last Saturday The Irish Times featured an excellent article by Breda O’Brien under the title “Inhumane asylum seeker system needs radical reform”. A letter by Dr. Joan Giller in today’s edition of the same newspaper is a must-read for all of us as it provides a marvellously accurate account of the harrowing system of direct provision offered in this country. Given that Dr. Giller has worked in direct provision accommodation since 2007, her comments are not hearsay. I have raised the issue of direct provision several times, primarily on the Adjournment, and recently took it upon myself to visit the direct provision accommodation in Hatch Hall as well as a site in Athlone located behind a Department of Education and Skills building which houses 100 mobile homes for asylum seekers. I was accompanied by Senators Fiach Mac Conghail and Katherine Zappone.

I refer to the work done on this issue by a group of committed Senators from all parties and none. As such, this not a party political issue. I call on the Leader to arrange a debate on the system of direct provision, in particular, to address the appropriateness of direct provision for the welfare and development of the 1,725 children who have been in the system not for one or two months, but several years. When we speak of institutionalising people, we should not forget this is being done now. I call for the establishment of an independent complaints mechanism and inspection system for direct provision centres. The Government’s Special Rapporteur on Child Protection called for such a system to be introduced one year ago. Let us debate and face up to this issue as it can no longer be tolerated. Will we wait for another 20 years to have another Ryan report published, this time on direct provision?

Adjournment Motion – Children in Direct Provision

2nd October 2012

I welcome the Minister of State, Deputy Perry, to the House.

The Reception and Integration Agency, RIA, of the Department of Justice and Equality is responsible for the accommodation of asylum seekers in accordance with the Government policy of direct provision. According to RIA’s latest monthly report, that of June 2012, there were 4,900 people its live system, that is, living in direct provision accommodation centres throughout Ireland. Of this number, 1,723 were children. Of this number, 907 were children between the ages of 17 and five, and 816 were aged four years and younger.

The Minister, Deputy Shatter, is very aware of the Irish Refugee Council’s report entitled “State Sanctioned Child Poverty and Exclusion: The case of children in accommodation for asylum-seekers”, published on 18 of September last. The report paints a bleak and, indeed, worrying picture about the treatment and care of children in direct provision. It documents frequent instances of poverty, malnutrition and dietary related illnesses among young children in Ireland.

The findings of the IRC report are very much in keeping with the concerns raised by the Government’s Special Rapporteur on Child Protection, Dr. Geoffrey Shannon, in his 2011 report, in which he highlighting “the specific vulnerability of children accommodated in the … Direct Provision and the potential or actual harm which is being created by the particular circumstances of their residence including the inability of parents to properly care for and protect their children …”

Dr. Shannon had also expressed concern about the “real risk” of child abuse in direct provision accommodation where single parent families are required to share with strangers and where families with teenage children of opposite gender are required to share one room. He cited, in support of his concern, the case of a 14 year old girl in a centre in Mayo who became pregnant by a male resident in the same centre in September 2011.

Given the parallels between Dr Shannon and the IRC’s respective supports, I was surprised by the tenor of the response on behalf of the Minister, Deputy Shatter, to my colleague Senator Ó Clochartaigh’s recent adjournment motion that the IRC’s findings and contentions simply “seems unlikely”.

That said, I welcome that the Minister has directed that the report be comprehensively examined and any issues arising be addressed. I welcome in particular his directing that issues relating to child welfare be dealt with without delay. I would be interested to hear from the Minister about the logistics for this comprehensive examination, who will carry it out and when we can expect a report.

What we cannot lose sight of when we are talking about children in direct provision accommodation is the fundamental premise that a child is a child. Irrespective of country of origin and regardless of the application status of the parent or parents, the welfare and protection of children must always be at the forefront of what we do.

It is timely to be debating this adjournment motion on the same evening as we passed Second Stage of the Thirty-First Amendment of the Constitution (Children) Bill 2012. In recent years the Oireachtas has spent significant time discussing horrific reports about the institutional abuse of children.

To get to the point of my question, what I am genuinely concerned about here is that our treatment of children in direct provision will become our shameful report of the future. Like many others, I am doing my best to ensure this does not happen.

At this juncture, I will limit my questions to the following. Can the Minister confirm the number of children living in direct provision who have been born in Ireland or born to an Irish parent? Are the HIQA National Standards for the Protection and Welfare of Children (For Health Service Executive Children and Family Services), published in July 2012, applicable to children in direct provision?

I understand that RIA’s child and family services unit is responsible for the monitoring and implementation of RIA’s child protection policy and does so in close partnership with the HSE child protection and welfare service nationally. I note, in particular, the standards stipulates that “Child protection and welfare services provided on behalf of statutory service providers are monitored for compliance with legislation, regulations, national child protection and welfare policy and standards”. Features to meet the requirements of the Standard include:

3.4.1 Formalised agreements are in place for the provision of child protection and welfare services for children and families, which are sourced externally.

3.4.2 Formalised agreements include the scope of service provided, resources required to deliver the service, monitoring and governance arrangements, including compliance with national policy, Children First and relevant standards.

3.4.3 External service providers are monitored on a regular basis to assure the service provided to children and families is compliant with legislation, regulations, these Standards and national policy.

In my opinion, the National Standards for the Protection and Welfare of Children clearly apply to direct provision. However, in preparing for this evening, I contacted HIQA and RIA and nobody could assert this for me. I would like to know what arrangements are in place for the inspection of direct provision accommodation centres in accordance with these standards.