Wednesday 23 October 2013
For full debate please see http://www.kildarestreet.com/sendebates/?id=2013-10-23a.178#g180
Senator Jillian van Turnhout
“That Seanad Éireann –
notes the calls from civil society organisations, legal practitioners, academics, human rights activists and Members of the Oireachtas for reform of Direct Provision, the administrative system for accommodating asylum seekers;
notes that, according to the latest available statistics from the Reception and Integration Agency (RIA) Monthly Report June, 2013, there are 4,624 RIA residents ‘live on the system’ of whom 1,732 are children;
welcomes the commitment by the Minister for Children and Youth Affairs to meet with the Seanad Cross Party Group on Direct Provision, made at the meeting of the Joint Committee on Health and Children on 10 October, 2013; and
calls on the Minister for Justice and Equality to –
– outline his response to the recommendations of the Government’s Special Rapporteur on Child Protection, Dr. Geoffrey Shannon, in the Fifth Report (July 2012) for
– an examination to establish whether the system of Direct Provision itself is detrimental to the welfare and development of children and whether, if appropriate, an alternative form of support and accommodation could be adopted which is more suitable for families and particularly children; and
– the establishment in the interim of an independent complaints mechanism and independent inspections of Direct Provision centres and give consideration to these being undertaken through either HIQA (inspections) or the Ombudsman for Children (complaints);
– outline the legislative basis for payments to asylum seekers in direct provision accommodation and the effect on these payments, if any, of the Social Welfare and Pensions (No. 2) Act 2009 which precludes asylum seekers from being granted habitual residency status; and
– further to the Minister’s announcement in January, 2013 that ‘[r]eform of the immigration system will be sustained in 2013 and I will be focusing on major
legislative and procedural measures such as the Immigration, Residence and Protection Bill’, to debate with Members of Seanad Éireann how best to reform Ireland’s reception and asylum system.”.
I thank everyone who has signed and supported this motion, particularly my Independent group colleagues for allowing group time to be used. I wish to acknowledge the years the Minister spent as the Opposition spokesperson for children. He demonstrated a real understanding and commitment to the promotion and protection of children’s rights in Ireland and I am confident it has been continued under his remit as Minister for Justice and Equality.
I welcome the Minister’s commitment to re-publish in revised form the Immigration, Residency and Protection Bill, which is currently stalled on Committee Stage in the other House and which has been eight years in production.
I welcome this opportunity to have an open and frank discussion about the direct provision and dispersal system and to make suggestions for its reform process. This is a sensitive societal issue and I appreciate that the Government has decided not to table a counter-motion, thus allowing the debate to continue in a constructive and inclusive manner. All too often we perpetuate a political environment where Government concedes little for fear of exposing itself to liability. I wish this were not the case but I understand that it is. My hope is that the Minister and the relevant Departments are listening to what we are saying in a spirit of constructive engagement. We are all striving to make the society in which we live a better place for all who live in it. I also note that a root and branch challenge of the direct provision system taken by three families, has been given leave to proceed by Mr. Justice Colm MacEochaidh in the High Court yesterday.
It is very important that we as parliamentarians and legislators take ownership of the need to reform the currentdirect provision system rather than waiting and being forced into it by judicial imperative.
My entry point into the issue of direct provision is from a children’s rights perspective. This perspective has been informed by my work on related issues as the former chief executive of the Children’s Rights Alliance; the recommendations of the Government-appointed special rapporteur on child protection, Dr. Geoffrey Shannon; and the concerns raised by advocacy groups. On that note I welcome to the Gallery for this debate Sharon Waters from the Irish Refugee Council and Lassane Ouedraogo and Reuben Hamakachere who have personal experience of the direct provision system and actively campaign to bring about its end. I also welcome the media coverage of the issue and in this regard I would like to commend the Mary Raftery Journalism Fund, set up to advance ethical investigative media coverage of three key issues – mental health; immigrant rights and integration; and children and young people’s rights. It has recently funded Tom Mooney, editor of the Wexford Echo, and his series “The Children of Operation Hyphen”, which included an article on the state of mental health of people in direct provision. The Minister facilitated my own recent visits to two direct provision asylum accommodation centres, with my colleagues Senators Fiach Mac Conghail and Katherine Zappone.
It has taken me a long time to wade through the mire that is the political discourse on direct provision. It has been difficult to establish which features of the system belong to the Minister’s remit, the remit of the Department of Children and Youth Affairs or that of the Department of Social Protection. I have struggled to understand the distinction drawn between children “cared for by the State”, as is used to describe children in direct provision, and children “in the care of the State”. I have argued strenuously that children are children, irrespective of status, and that it is a stretch in credulity to claim that children in direct provision are in the care of their parents in circumstances where the parents’ autonomy to make even basic decisions about their children’s care – for example what and when to eat – is so limited as to render it absent. This is a concern shared by the Government’s special rapporteur on child protection, Dr. Geoffrey Shannon, which I will refer to again later.
My overwhelming concern is that the administrative system of direct provision, which has been operating in Ireland since April 2000, is detrimental to the welfare and development of asylum seekers, and in particular the 1,732 children currently residing in direct provision accommodation centres throughout Ireland. I am also very concerned that between 2000 and 2010, the direct provision and dispersal system has cost the State an estimated €655 million in contracts to private companies which are operating the centres on a for-profit basis.
In a recent letter to me as part of ongoing correspondences between our offices on direct provision, the Minister stated that the current system allows the State to provide a roof over the head of those seeking asylum in a manner that facilitates resources being used economically in circumstances where the State is in financial difficulty. I am not convinced the current system is the most economical and my colleagues, Senators Trevor Ó Clochartaigh and Martin Conway, will elaborate on alternative models and cheaper options. Furthermore, the best interests of persons seeking asylum should outweigh financial considerations in the discharge of our international, regional and humanitarian obligations.
In my time as a Senator, I have identified and spoken on the Adjournment about a plethora of difficulties, including the dubious legality of the direct provision system, the lack of an independent complaints mechanism for residents, the absence of independent inspections of direct provision centres where children reside, the decision by Ireland to opt out of the EU directive to allow asylum seekers to enter the work force if their application has not been processed after one year, the fact that there are no prospects for post-secondary education for young asylum seekers, which is like hitting a pause button for an uncertain and doubtlessly lengthy period of time, the fettering arid erosion of normal family dynamics and functioning and the lack of autonomous decision making. I do not intend to elaborate on each of these concerns but I will say a few words about the lack of specific legislation underpinning the provision of direct provision.
I know the Minister is aware of this specific concern as we have corresponded in its regard. I note in the same letter I mentioned previously what I took to be a suggestion that since existing laws – and although it is unspecified in the letter I presume social welfare law would be a good example – would “otherwise specifically prohibit asylum seekers from being able to be provided with the basic necessities of life”, we should simply ignore said provisions and carry on regardless. I fully accept and welcome that Ireland has an obligation under international and European human rights law to meet the needs of asylum seekers while their application for refugee, subsidiary protection or leave to remain is being considered. However, this must be done in a manner that complies with our own domestic legislation.
Direct provision was introduced in a haphazard manner in 1999 and 2000, with little concern for its relationship with Irish social welfare law. For several years, direct provision was viewed as part of the supplementary welfare allowance system, and this is evidenced from extensive documentation obtained by Dr. Liam Thornton under freedom of information and which I have furnished to the Minister in previous correspondence. Concerns were expressed by officials in the Department of Social Protection that the payment of €19.10 per week per adult and €9.60 per week per child was ultra vires, and the payment advice slips to asylum seekers continue to view the entirety of the direct provision system as being closely aligned with the system of supplementary welfare allowance, with deductions for accommodation, as administered by the Reception and Integration Agency, RIA. As the Minister is aware, supplementary welfare allowance can be provided in cash or in kind, and it appears that RIA, the Department of Social Protection and the Department of Justice and Equality had until recently considered supplementary welfare allowance as the legal basis for direct provision. To state that this scheme is wholly administrative, or that the Departments of Justice and Equality or Social Protection can act since the introduction of the Social Welfare and Pensions (No. 2) Act in 2009 contrary to legislation that debars asylum seekers from receiving supplementary welfare allowance displays a worrying approach of both Departments, which seem to consider that law does not apply to them.
Ultimate the failing of direct provision is the length of time asylum seekers remain in the system waiting for their claims to be processed. It is important to remember that when first introduced 13 years ago, direct provision was viewed as a time-limited system that would be for a maximum of six months. If this was the case, I would not be standing here today and I could tolerate the inadequacies that would present in that time period rather than the outright failings that present in this system, where the average length of stay is four years and a significant number have remained in the system for between five and ten years. This is far too long and leaves asylum seekers de-skilled, institutionalised, vulnerable to mental health issues and socially excluded.
The impact on children is particularly worrying. According to the Government’s special rapporteur on child protection, Dr. Geoffrey Shannon, “the specific vulnerability of children accommodated in the system of direct provision [is] 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 and the damage that may be done by living for a lengthy period of time in an institutionalised setting which was not designed for long term residence”. The long-term solution has got to be a streamlined status determination system where decisions are taken fairly and speedily, with quick recognition of those identified as in need of refugee or subsidiary protection or leave to remain, or a speedy human rights compliant removal or deportation process. I hope this will be delivered through the Immigration, Residence and Protection Bill. I will make some recommendations when summing up the debate.
Minister for Justice and Equality, Alan Shatter TD
I thank the Senators who proposed the motion and all of those who have spoken on an issue of great importance in which I have had great personal interest for a considerable time. This important debate coincides with some events which have taken place over the past 48 hours in the State, which are not directly related to the direct provision issue but are related to the welfare of children.
I want to say to the House, and it is important I have an opportunity to say this, two children were removed from two families in the State in the past 48 hours in circumstances in which An Garda Síochána had serious concerns about the welfare of the children. Normally I would not address any specific cases which arise, and up to now when asked I have stated these are matters to be dealt with by the courts, but I want to report to the House the concerns which arose relating to the children have been proved to be groundless. I understand the two children concerned are children of the parents concerned and there is no reason for any doubts in this regard.
I am conscious An Garda Síochána has a very important role in dealing with child protection issues, particularly under the child care legislation of 1991 as amended, and circumstances do arise where for the protection of children it is necessary that An Garda Síochána intervenes and takes them to a safe place. I have no doubt the gardaí in this instance acted in good faith in the intervention which took place. However I have concerns with regard to each of these matters and I will ask the Garda Commissioner for a report on the background to each of these instances with a view to reviewing the procedures which applied in a manner which ensures An Garda Síochána continues to perform the very important role it must play for the protection of our children while also ensuring the type of situation which has arisen in each of these cases, which impacts on family members, mothers, fathers and children, can be avoided in so far as it is possible
I am conscious these events took place in a background or backdrop of events which have taken place outside the State, but it is very important in ensuring the welfare of all children is safeguarded and that every child in the State is afforded, where necessary, the protection of the State, that no group or minority community is singled out for unwarranted attention or suspicion with regard to child protection issues.
It is important that events which take place off this island in other states are not automatically assumed to be replicated in this State or in other states throughout Europe to the detriment of any particular group or minority being singled out. I am not suggesting this in any way was a motivation of the members of An Garda Síochána who in good faith acted in a manner they deemed appropriate in the interests of children, but it is important we do not get caught up in some of the concerns and the media spotlight which have arisen in the context of cases in other states about which there are genuine causes for concern. One case elsewhere, which is very high profile, is still a matter of investigation and a matter to be dealt with in the courts of another jurisdiction. I hope Senators will forgive me if I have taken this opportunity.
As I sat here, Members may have wondered why, on occasion, I was accessing my phone. It was not out of a discourtesy to anyone but because the results of certain tests were coming through to me and I was anxious to ensure I knew as soon as possible. The families concerned are being informed and, indeed, the court and the HSE are being informed. I believe these matters are sufficiently serious to warrant being mentioned in this House. I am conscious there is a very substantial interest in these matters outside this House, across the country and, indeed, elsewhere across Europe. It is important that the record on these matters be addressed.
I now want to return to the issue we are dealing with this evening and perhaps the House will give me some latitude by way of time to address these very important issues.
As I said earlier, I welcome this debate and the opportunity to respond to the points raised by Senators, and to speak, if I can, more generally about the subject in order to assist Members gain a fuller understanding of all the issues involved. At the outset, as Members will be aware, I have on several occasions in this House and in the other House responded to many, if not all, of the points referred to in this motion, and one of the earlier speakers referred to the number of times I have addressed this issue in this House. I am, of course, happy to address these issues again in the course of my contribution to this debate.
In saying this, it is important that I state that, for the avoidance of any doubt or misunderstanding and as has already been referred to, the issues under discussion here are currently being litigated through a judicial review application in the High Court, which essentially challenges the legal validity of the direct provision system. An application for leave for judicial review in that Mundeke case, so named after the applicants seeking the review, was formally heard in the High Court on Monday of this week, and the likelihood is that a full hearing of the case will take place early next year. I mention this with no purpose other than to ensure that all Members are aware of the most recent developments in this highly contested area of public policy. This can give rise to sharp differences of opinion among the wider community and, on occasion, is discussed in simplistic terms and in the colours of black and white when, unfortunately, in the complexities that arise, there are various shades of grey.
I do not know, and it may not be the case, whether this motion is being co-ordinated with developments in the case that is taking place in the courts as part of what is obviously an ongoing campaign against direct provision. Regardless, the House will understand that I cannot say anything here which will pre-empt the State’s response to the legal challenge that is taking place.
In the context of legal challenges generally, it is worth noting that a substantial number of those residing for long periods within the direct provision system are adults living with their children who have challenged in the courts, by way of the judicial review process, decisions made refusing applications for asylum and-or permission to remain in the State and whose cases await hearing or determination. There are presently approximately 1,000 such cases pending before the courts. Indeed, in many of the direct provision homes and accommodation I have visited, an overwhelming number of those being so accommodated, either themselves or their spouse, are engaged in litigation by way of judicial review, having been refused asylum. I believe that is an important statement to make. I am not challenging their right legally to bring judicial reviews but it is important to make the case clearly, as someone who comes from the perspective that, where someone is a genuine political refugee he or she should get refuge in this State, that there are many who claim to be political refugees who are not. I can say this having read the papers and seen the files.
These judicial reviews are taking place notwithstanding the existence of a detailed system of examination of asylum claims involving two bodies statutorily independent of the Minister, namely, the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. These bodies are to fulfil the State’s obligation to distinguish between genuine asylum seekers and economic migrants who have not obtained the appropriate visas for permission to remain in the State or work permits to obtain gainful employment.
I am aware that some of the strongest critics of the direct provision system outside of this House have said all that is required is “one last push” to have it brought down. They have been very slow to explain what they will replace it with. It is, of course, their right in our democratic system to take such an approach. However, in opposing the system of direct provision, which I have already freely admitted has many faults, I have yet to see any proposals, or at any rate, proposals grounded in the reality of the economic conditions we face, as to what could replace it without, in short order, recreating the crisis which led to its establishment in the first place. There is no gainsaying that truth, and anybody who believes otherwise is, at best, simply not prepared to face reality.
I listened with great interest to Senator Hayden telling me we should provide housing for practically everyone in direct provision and every future person who comes to the State seeking asylum. I do not know where I am to obtain the funding to do that. There is no reality in that. We have people born and living in this State who are currently in difficult financial circumstances but for whom the State cannot afford to provide housing because of the parlous financial circumstances of the State. We have to discuss these issues with a degree of realism. What would be the effect if we were providing a house for every applicant for asylum in the State? How many tens of thousands of people who are economic migrants would arrive in the State and say, “Hello. Could I have a house, please?”
Could we have some realism in this discussion? We must provide properly for those who are genuinely seeking political asylum, coming from some parts of this world where people are treated appallingly. However, let us not fall into the trap of believing that everyone who claims asylum is always, in all circumstances, telling the truth. Sadly, they are not.
The system of direct provision in this country is sui generis. There is no real comparator with any other form of accommodation being provided by the State. To understand the system, as well as its strengths and weaknesses, one has to take account of the circumstances which prevailed when it was first set up. The number of asylum applications in Ireland increased dramatically in the late 1990s. In 1998, some 4,426 asylum seekers applied for refugee status. In 1999, this figure rose to 7,724. On the basis of these trends, it was anticipated that between 12,000 and 15,000 would claim asylum in Ireland during 2000. At that time, the majority of asylum seekers arrived in Dublin, and still do, and the provision of accommodation for asylum seekers was handled, in the main, by the then Eastern Health Board, which treated the asylum seekers as homeless. In late 1999, the shortage of accommodation reached crisis point and the Eastern Health Board, understandably, could not cope. There were reports of asylum seeker families sleeping in parks because no accommodation was available for them. We have now forgotten that.
In November 1999, the Government decided to deal with the crisis by having the needs of asylum seekers met by a system of direct provision which also involved dispersal throughout the country. The Government’s decision was also made in the context of measures taken in other EU countries to control illegal immigration and to process large numbers of asylum applicants. The body set up under the auspices of my Department to carry out the Government policy was the Directorate of Asylum Support Services, DASS, which later became the Reception and Integration Agency, RIA. It was an important objective of the policy to ensure the availability of accommodation for all asylum applicants while their applications for asylum and leave to remain in the State were being processed and determined.
Since then, RIA policy has been to procure commercial properties such as hotels, hostels, boarding colleges and so on, from private operators through public advertisements seeking expressions of interest. This procurement policy is reflected in the current RIA portfolio. Of the 34 current centres, only seven are State-owned and, overall, only three are “system built”, that is, built specifically to accommodate asylum seekers. In terms of room capacities and facilities, RIA centres operate in compliance with relevant legislation. In regard to determining minimum room capacities, RIA relies on the Housing Act 1966, with particular reference to section 63 thereof dealing with the definition of overcrowding. In regard to shared bathroom and toilet requirements, RIA relies upon the Tourist Traffic Acts 1939 to 1998.
Where a family member, already in RIA accommodation, reaches ten years of age, RIA offers that family alternative accommodation which is deemed suitable for their needs.
In many cases, where the family profile has changed on the basis of age or a newly arrived family member, the Reception and Integration Agency can only offer alternative accommodation at another centre to keep within these rules. A family may, however, choose to refuse the offer of a transfer to an alternative centre because it prefers the current arrangement or wants to await a better offer. Where a family refuses an offer of alternative accommodation in such circumstances, the RIA keeps the family details under review and further offers are made as deemed suitable. The key point is that the Reception and Integration Agency must adapt existing premises for the purposes of accommodating asylum seekers. It is not realistic to expect bespoke accommodation for asylum seekers in accordance with what one may ideally wish to have in a centre.
In the current campaign against the system of direct provision there can be a tendency at times towards extreme claims which do little to help the residents involved. Regardless of how many times it is refuted, the canard continues to surface that asylum seekers in centres resort to suicide as a matter of course. Claims are also made that residents resort to prostitution in centres. Such claims have been investigated by the Garda in the past and found to have no basis. Any such allegation will continue to be investigated by the appropriate authorities in accordance with the law. Assertions about suicide, child abuse and prostitution among residents in asylum accommodation centres are still made by purported supporters of asylum seekers who would not dare to make such assertions in respect of any other identifiable group of persons in society.
While the direct provision system is not ideal, it facilitates the State in providing a roof over the heads of those seeking asylum or seeking to be allowed, on humanitarian grounds, to stay in the State. It allows the State to do this in a manner that facilitates resources being used economically in circumstances where it is under financial difficulty.
No Government can afford to ignore the likely consequences of a change to the system of direct provision. The system was examined in considerable detail in the 2010 value for money report which found there were no cheaper alternatives. 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. I remind Senators that Ireland has still not exited the troika programme and even when we do, the State will next year spend €10 billion more than it receives through the many ways in which it obtains funding. If the State was to allow all asylum seekers to avail of full social welfare supports, including rent supplement, the immediate impact would be for all asylum seekers, including those not currently in accommodation provided by the Reception and Integration Agency, to avail of this financial support. As matters stand, not all asylum seekers live in direct provision accommodation as they are not compelled to do so. Accommodation is provided for those who cannot provide accommodation for themselves and do not have friends, family or others in the State who are willing to provide accommodation for them. Some asylum seekers live with friends or family or provide, from their own resources, for their accommodation needs.
A further concern is what is known across Europe as the “pull factor”. While the State has an important obligation to provide refuge for those in genuine need of protection and asylum and it is crucial that we comply with our international obligations in this regard, it is also appropriate to acknowledge that a significant number of those who have during the years sought asylum here have been economic migrants evading our immigration and visa requirements whose personal narratives have ultimately proved to be both untrue and unreliable. The State at this time cannot afford to provide supports and accommodation for individuals who so behave.
The decline in the number of those applying for asylum arriving in Ireland, from 11,600 in 2002 to 1,000 in 2012, is bucking the generally upward trend in the European Union. It must be borne in mind that the common travel area between Ireland and the United Kingdom, which for many decades has delivered immeasurable economic, social and cultural benefits, would possibly be abused by those using the asylum system simply to avail of better economic advantages in a context where Ireland provided better social supports and housing than are available in the United Kingdom.
No asylum seeker has ever been left homeless in the State. Unfortunately – it gives me no pleasure to say this – the same cannot be said by the public authorities responsible for homelessness issues among the indigenous population. 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 it is, in many cases, far superior to what is available in their countries of origin, rightly so. 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 direct provision system remains a key pillar of the State’s asylum and immigration system and I have no plans to end it at this time. I accept, however, that the length of time spent in direct provision accommodation and the complexity of the asylum process are issues that need to be addressed. I have visited a number of asylum accommodation centres, most recently last Friday when I visited the Ashbourne centre in Glounthane, County Cork. I am concerned at how long people spend in the system. My resolve, therefore, is to deal with the factors which lead to delays in the processing of cases in order that asylum seekers spend as little time as is necessary in that accommodation system.
As with other states, Ireland has individuals and families who apply for asylum and have genuine grounds for seeking asylum under the relevant international provisions in place and our domestic laws. Of those granted citizenship in the ceremonies in which I was engaged on Monday last in the convention centre in Dublin, 195 were political refugees. A substantial number of people who are economic migrants present with stories seeking asylum which turn out to lack validity. There are individuals who adopt false identities and pretend to come from troubled parts of the world when they do not. There are also individuals who will claim to have been in war zones and when the matter is further investigated, it transpires they were in London, Birmingham or elsewhere when they alleged they were in Sudan, Somalia or some other troubled region. This is a real problem in dealing with the asylum system. Many also play the system by instituting one legal challenge after another to delay the inevitable, sometimes to the point of launching legal challenges as they are about to board an aircraft to be returned home. That is their right, but we should not lose sight of the fact that the right of easy access to the courts in this respect is almost without equal in the world.
There is a need to bring balance to the discussion on asylum seekers. In the context of the wider community and those campaigning, there is an assumption that every single individual who applies to seek asylum is giving a truthful account of his or her circumstances and is a genuine asylum seeker. On the other side of the debate, there are small numbers of individuals who doubt whether any applicant for asylum ever tells the truth. We must adopt a balanced approach and ensure no individual who truthfully documents events or circumstances in respect of which asylum should be granted is refused the protection he or she seeks, while also ensuring those who deliberately abuse the asylum process to evade our immigration laws do not benefit or, by their conduct, undermine our asylum system and the basic humanity it is right to afford to those in need of protection. We must ensure the integrity of the asylum and immigration system is upheld in order that assistance is afforded to those who genuinely seek asylum, while not allowing the system to be undermined by those seeking unfair advantage.
Having made these general points about the direct provision system, let me deal with the various points raised in the motion, the first being the view of the Government’s Special Rapporteur on Child Protection, Dr. Geoffrey Shannon, in his fifth report in July 2012 that the system should be examined with a view to establishing whether it is detrimental to the welfare and development of children and, if appropriate, an alternative form of support and accommodation should be adopted which is more suitable for families, particularly children. The Reception and Integration Agency affords the highest priority to the safeguarding and protection of children through the full implementation of the Children First guidelines. It has a fully staffed child and family services unit, the head of which is seconded from the Health Service Executive. Any review of the type proposed would have to take account of the wider purpose of thedirect provision system in the overall context of the State’s response to the issue of asylum seekers and immigration control generally.
The accommodation system cannot be in place solely in its own context. It is inextricably linked with the surrounding international protection process. An amended immigration, residence and protection Bill will be published, the purpose of which will be to 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 application in a more straightforward and timely fashion. I had wished to bring forward this legislation much sooner. It has been one of my great frustrations that it has not yet proved possible to publish the legislation in its final form.
However, as Members will be aware, by necessity, troika-related legislative requirements have had to trump all other proposals, no matter how meritorious. The available pool of legislative drafting expertise is quite small and is subject to the same resource restrictions as all other areas of the public service. However, I expect that this situation will be alleviated shortly and that the Bill will definitely come before the Oireachtas next year. It was originally my hope to have seen it in 2012 but that proved impossible. Everything possible is being done on the legislative drafting side to bring about publication by 2014.
In relation to the establishment of an independent complaints mechanism through the Ombudsman for Children and independent inspections of direct provision centres undertaken through HIQA, it is not clear from the rapporteur’s report that he was aware of how these issues are actually dealt with. I see no basis for HIQA involvement. Reception and Integration Agency, RIA, centres are already subject to inspections three times a year, twice by Department of Justice and Equality staff and once by an independent company called QTS. Indeed, the media reports last week about shortcomings in some RIA centres came about from the release under FOI of inspection reports carried out by RIA which showed that the inspection system was indeed working. Where problems within direct provisionaccommodation are identified, I ensure that these are addressed. RIA will publish on its website all completed inspection reports on its centres undertaken since 1 October 2013. In future, anyone seeking these reports will not have to make any application under freedom of information legislation. I want these reports to have maximum transparency.
Although not stated explicitly in the report, the rapporteur appeared to be making an analogy with the HIQA inspections of children’s detention centres but there are several distinctions to be drawn. Senator van Turnhout had some difficulty with some of these distinctions but they are valid distinctions. First, only a small number of children are at present in detention while approximately 1,200 children are in the 34 RIA centres around the country. Second, HIQA carries out the inspections on a contract basis for the Department of Children and Youth Affairs, and not under the specific HIQA legislation. The inspections are based on the standards drawn up by the Department of Children and Youth Affairs, not by HIQA. Third, the inspection standard of the Department of Children and Youth Affairs takes into account that these children are in the care of the State, that the State acts inloco parentis, in the context, in most cases, of proceedings having been taken in respect of child care matters. While the RIA has, of course, a duty of care to all its residents, both adults and children, in no case is it acting in loco parentisin respect of children in the centres.
On the recommendation to extend the remit of the Ombudsman for Children to direct provision centres, I see no basis for changing the law in this regard. Section 11(1)(e) of the Ombudsman for Children Act 2002, provides that the ombudsman shall not investigate any action taken by a public body where the action was taken in the administration of the law relating to, inter alia, asylum. While the office currently does not have the power to investigate asylum-related matters, the Irish Naturalisation and Immigration Service, INS, including RIA, has administrative arrangements in place with the office to assist and provide information and to help resolve any matters brought to its attention. The rapporteur’s report also does not make clear that the ombudsman does not serve as a first instance appellant authority for day-to-day administrative complaints mechanisms. It is a requirement that a person who wishes to appeal to the ombudsman must first try to solve the problem with the public body concerned using formal local appeals mechanism.
With regard to the legislative basis for payments to asylum-seekers in direct provision accommodation, asylum-seekers cannot work under section 9(4)(b) of the Refugee Act 1996, they cannot access rent allowance under section 13 of the Social Welfare (Miscellaneous Provisions) Act 2003, nor are they 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.
The Minister for Social Protection has already responded to Dáil questions on this matter, to the effect that under thedirect provision system asylum-seekers are provided with full board accommodation and other facilities such as laundry services and access to leisure areas. To take account of the services provided, a direct provision allowance of €19.10 per adult per week and €9.60 per child per week is payable in respect of any personal requisites required. Following the introduction of the statutory habitual residence condition in May 2004 and subsequent legislation, asylum-seekers are not entitled to receive most social welfare payments. The payment of the weekly direct provisionallowance is made on an administrative basis by the Department of Social Protection on behalf of my Department. It continues to be open to any asylum seeker to seek assistance for a particular once-off need by way of an exceptional needs payment under the supplementary welfare allowance scheme as contained in section 201 of the Social Welfare Consolidation Act 2005. There is no automatic entitlement to an exceptional needs payment as each application is determined based on the particular circumstances of the case.
With regard to the final issue raised concerning a debate with Members of Seanad Éireann as to how to best reform Ireland’s reception and asylum system, only someone unfamiliar with parliamentary affairs would think that there has been little or no debate about the merits or otherwise of the direct provision system. I have answered over 50 parliamentary questions on the topic this year, as well as five Seanad Adjournment debates, not including this one. RIA has facilitated three visits by Members to asylum accommodation centres. Senators are welcome to visit any further centres they wish to visit. It is one of my practices as I travel around the country and without media attention to quietly visit our prisons and our courts and to meet with members of An Garda Síochána. Quietly and without any great fanfare I have visited a number of our asylum-seeker accommodation centres and met and talked to many of the people residing therein. I intend to continue this practice. In its previous iterations, the Immigration, Residence and Protection Bill has been extensively debated in the Oireachtas and no doubt will be debated again when finally I can introduce the new Bill which we hope to publish.
I wish this were an issue with an easy resolution but this is not the case. It is a challenge, not just for Ireland but for the EU as a whole and the issue is discussed at practically every Justice and Home Affairs Council meeting at the various locations. The direct provision system is a necessary feature of this country’s asylum and immigration system. It is a system which ensures a roof over the head of every asylum-seeker. However, I would prefer to have a system where asylum seekers spend less time in that system. That is where my energies will be devoted. I want to see the new Bill published. I want us to get to a position, which we have not as yet achieved, where all the applications made by those seeking asylum, including all the different applications that can be made, are dealt with in one application. I want to have an appeals system which is to the satisfaction of everyone so that in the future, those seeking asylum do not feel the need to make multiple applications to the courts.
In conclusion, after we have enacted our legislation, which I hope will meet with a widespread welcome, which will ensure that we are fully meeting all our international obligations and which will address issues of concern to some, I will then revisit the possibility of our becoming parties to some of the EU measures to which Senators have referred. There is merit in looking at a system which ensures that we treat those who are genuine asylum-seekers as best we can, with the caveat that in all contributions on this issue, I urge Senators to take note of what I have said that many people are genuinely seeking asylum but, unfortunately, others are economic migrants masquerading as asylum-seekers. This is a problem right across Europe. We live in a State that does not have an open-ended fund into which we can simply dip to provide ideal accommodation and supports for everyone who arrives at our borders. We cannot provide the ideal within the current economic climate for all of our citizens. There are limits to what we can do. We need to take a reality check when debating this issue.
I am very conscious, in the context of those who are currently within the direct provision system, as well as those still involved in the process but living with friends, relations or in their own accommodation, of the welfare of children resident in this State for many years. It is an issue that will have my continuing attention, and Senators should notice that the number of people currently in direct provision is a smaller than it was on 9 March 2011.
I will first deal with the Minister’s statement on the events of the past 48 hours. I thank him for his honesty in sharing his concerns and the plans for the proposed review. I agree the Garda Síochána has an important role to play as part of the child protection system. Nevertheless, I am concerned about the amount of detail that went into the public domain with these cases, and I support the Minister’s proposal for a review.
I have plenty of food for thought arising from this evening’s debate and I thank all colleagues for the contributions. I assure the Minister I am fully aware of the separation of powers, and the motion today is a culmination of my work as a Senator and that of my colleagues. Senator Moran raised the 2010 value-for-money report, which clearly indicates that the social welfare option costs are the same as direct provision, so I am finding it quite difficult that we are being played against each other. Examining the current funding of some providers, it seems many have moved to unlimited companies to hide profits. I would happily sit down with colleagues to work on an alternative model that would be based on human rights and be economically sound, if we felt it would get a fair hearing.
I have been careful with my wording on this issue and I am disappointed at the response. I wanted to have a constructive debate; instead the Minister’s response has added bricks to the wall. I do not want to table Adjournment debates and use up departmental time going back and forth. I would like to sit down to talk about how we reform this system. I do not want to ask questions about this case or that case. That is why I worded the motion as I did. Along with my colleagues, civil society organisations, legal practitioners, academics, human rights activists, I am calling for reform. I am sure Senators would be happy to co-ordinate with a grouping to sit down to talk about the solutions if we believe they will get a fair hearing.
The Minister mentioned Dr. Geoffrey Shannon’s report. Why not ask him to conduct the examination he proposed in his special rapporteur report if he is so assured of the facts? There is merit in doing a report on the effects of direct provision on the welfare and development of children.
I worked to have a constructive debate but I feel like I have had a few wallops. The Minister said “No” to any independent mechanism and to investigating conditions for children and he refuted the economic arguments, even though the value for money report defends what we said. There has to be a better way for us to reform policy. We are here together and we want to work with the Department. I read what the Minister said when he was in opposition. His comments were much stronger than mine during this debate. Why can we not find a way to sit down to reform this system? The difficulty when it is all boiled down that is my colleagues and I can put faces to the many figures that have been provided in this debate. I realise what we are doing and I do not want in ten years’ time to stand anywhere and say, “Well, we knew that was happening but we did nothing”. We have to do something.