Thursday, November 20, 2014

OUTCOME OF LEGAL CHALLENGE TO DIRECT PROVISION SYSTEM

C.A. and T.A v The Minister for Justice and others

Last Friday a decision of the High Court was handed down in favour of the current Direct Provision regime that exists in Ireland. The Direct Provision system has been the subject of much political and public debate in recent years. This long-awaited decision stated that this highly controversial system was legal and did not breach the human rights of the people who avail of these facilities around the country. While Justice Colm MacEochaide found in favour of the Minister for Justice, the Minister for Social Protection and the Attorney General in this case, it was held that some elements of the system were illegal on the basis that there were disproportionate to the aim of the direct provision system. 

One of the most strongly contested claims was the legality of the payments to people in the Direct Provision system. It was held by the High Court that that the payments of €19.10 and €9.60 for adults and children per week respectively were in fact legal. This is somewhat surprising as this has been the most widely criticised aspect of the Direct Provision system. The justification for the rejection of this argument was that the payment was not a social welfare payment and therefore no statutory footing for the payment was necessary. 

Similarly, the Court found that the Direct Provision system did not breach the applicant’s ECHR Article 8 rights, namely the right to private family life. Although he accepted that such an environment was not the ideal scenario to raise a family, he held that the court could not be satisfied that the direct provision system had reached the threshold of breaching Article 8 of the ECHR. He stated that it was clear that families could enjoy their lives and that there was no evidence produced in court that would suggest that the system is injurious to families. This is also an aspect of the Direct Provision system that has been criticised on the basis that often entire families share a room between them in the Direct Provision system. 

While the decision found against the applicants in this case, some of the house-rules of the Direct Provision system were deemed by the court to disproportionately interfere with the rights of those in the Direct Provision system. Rules permitting unannounced room inspections, rules that preclude people having guest bedrooms and rules regarding signing-in requirements were all held to be disproportionate by the Court. This aspect of the judgment should be welcomed as a step in the right direction. 

It is noteworthy that the High Court criticised the way in which proceedings were brought by the applicants as opposed the substantive legal arguments. The lack of oral evidence by the applicants was highlighted by the Court in this case. It appears therefore that there may be scope for a further challenge to the Direct Provision system in the appropriate case, brought with the benefit perhaps of oral and expert witness evidence. 

Rebecca Keatinge

1 comment: