“PERSON OR NUMBER?” ISSUES FACED BY IMMIGRANTS ACCESSING SOCIAL PROTECTION – JANUARY 2015

This week, the Minister of State for Equality, New Communities and Culture, Aodhán Ó Ríordáin, launched the report, Person or Number?, which was commissioned by a number of human rights organisations, including NASC, the Irish Immigrant Support Centre and FLAC. It is the second report of its kind with the first being published in 2012. The report examines the hardships faced by immigrants seeking to access social protection services in Ireland. 

The report is based on the analysis of 54 cases where immigrants encountered difficulty in accessing social protection, 35 of which are highlighted in the report. Many of these cases involved more than one issue. The report found several incidents of “serious customer service issues”, including some reports of racism and general rudeness towards immigrants. One such immigrant was allegedly told “‘if you are not happy, go back to ****”, in a manner described as “racist and aggressive”. Another immigrant was told “too many people from **** are coming here to take benefits for free”.

Fiona Hurley of the Irish Immigrant Support Centre, said that “Customer service issues need to be tackled as a priority, as it is unacceptable that anyone should be subjected to any kind of aggressive or abusive behaviour or racism when they present to a State service.” The report noted that while only a few of the cases examined have alleged such behaviour; any instance of this behaviour is exacerbated by the fact that such remarks are coming from someone who is effectively representing the State.

Another difficulty faced by immigrants that is highlighted in the report is poor provision of information. In three of the cases examined, people were told by their local Social Welfare Office that visiting family abroad for up to 3 weeks would not pose any risk to their payments. This information was false because in each case, the people were told when they returned to Ireland that they no longer satisfied the Habitual Residence Condition. This left each person without income while they were waiting for the outcome of the appeal of the decision. The report found that several cases had also shown that people were not told by their Social Welfare Office that they could go to their local Community Welfare Office to apply for short-term financial assistance. The report also found “significant knowledge deficits” among frontline staff regarding the qualifying criteria for some payments. To combat this, the report recommends that an audit of the level of knowledge of frontline staff would highlight areas where training is needed.

Many of the cases examined in the report illustrated the problem of significant delays in processing applications. While this is an issue for most applicants, such delays can cause significantly more difficulty for immigrants, particularly when many are unaware that they can apply for short-term assistance from their local Community Welfare Office. If immigrants do apply for this, they still must satisfy the Habitual Residence Condition if they are to receive Social Welfare payments. To help reduce these delays, the report recommends that decisions on short-term assistance should not require that the Habitual Residence Condition be satisfied as it will be examined in the initial application for Social Welfare. The report also notes some deficiencies with how the Habitual Residence Condition is applied and it also includes recommendations on how to remedy these deficiencies, for example, periodic examinations of Habitual Residence Condition decisions.

While these are some of the key issues that are noted in the report several other issues, including recommendations on how to remedy them, are also included, such as domestic violence and decisions based on speculation.


The full report is available online and can be found here: http://www.livinginireland.ie/images/uploads/Person%20or%20Number.pdf



Rebecca Keatinge
Brophy Solicitors
 

DIRECT PROVISION ACCOMMODATION IN IRELAND – A BREACH OF FUNDAMENTAL CONSTITUTIONAL RIGHTS AND VALUES

Writing in Jesuit Quarterly Studies this week, the Ombudsman Emily O’Reilly has heavily criticised the system of direct provision for asylum seekers. According to O’Reilly, the system is in breach of the Irish Constitution and international human rights law as there is a real risk of child abuse and a lack of protection of family rights. Delays in processing asylum applications result in some families living in direct provision centres for years. The Ombudsman argues that the centres are suitable only for very short periods of time and not for long-term residency.

Nearly 5,000 asylum seekers currently reside in direct provision centres and over 1,800 of those are children. Meals are prepared for the asylum seekers, meaning that they have no control over their diet, families are often required to share rooms with other families, leading to a lack of privacy, and each person receives a sum lower than €20 a week to live on, with children receiving less than €10 per week. The Ombudsman also notes that enforced idleness is common, as asylum seekers cannot work while there asylum status is under review. 

In her investigation into a complaint made by one family, O’Reilly found that they had been separated due to a failure on the part of the HSE to implement a Social Welfare decision. An African woman and her two daughters who came to Ireland to seek asylum were placed in a direct provision centre and lived there for fifteen months. The family left because of serious concerns over the mental health of one of the daughters, who had attempted to take her own life. Her mother felt that the conditions in the centre they were living in were having a negative impact on her child’s mental health and decided to leave the centre on this basis. The child was placed in foster care because the family had no income. Initially, the mother’s application to receive Social Welfare was rejected, but following a lengthy appeal process, she was eventually approved to receive payments. However, the decision was not implemented, which had adverse consequences for the family, who are still separated. The Ombudsman has criticised the lack of implementation of the decision in strong terms.

O’Reilly believes that the conditions described are in breach of Article 41.1.1 of the Constitution, which protects family rights and Article42A.1, which was inserted as a result of last year’s referendum to protect children’s rights. In her article, the Ombudsman notes that while there are some contradictory Supreme Court rulings, there is general consensus that the natural rights provisions of the Constitution apply to all people in the state and not only to Irish citizens. 

Regarding international human rights, FLAC has commented that ‘the direct provision system does not provide an environment conducive to the enjoyment or fulfilment of the most basic human rights, including the rights to health, food, housing and family life. It also has negative repercussions on the right to education and the right to work as well as to freedom of expression, freedom of movement and freedom of association.’ Ireland is party to a number of international human rights conventions, including the European Convention on Human Rights and the International Convention on the Rights of the Child, and therefore is required by law to respect the rights of all people as listed by FLAC.

At Brophy’s, we have encountered appalling reports from clients living in such accommodation. We welcome the Ombudsman’s review and call for the Minister to take immediate action to review the living conditions in Direct Provision centres around Ireland. 

Katie O’Leary

Brophy Solicitors

Social Welfare Benefits Refused on basis of Delay in Seeking Judicial Review and not holding a Work Permit in the State

Case Study: Solovastru & Anor v The Minister for Social Protection [2011] IEHC 532

The first named applicant sought a judicial review of a number of decisions in relation to his application for jobseekers allowance, welfare allowance and rent supplement.

The second named applicant sought to judicially review the decision in relation to her application for child benefit.

The first named applicant, a Romanian national, arrived in the state in September 2004. He first worked as a carpenter, then for a company and was subsequently self-employed from 2007 to 2008 as a metal fixer. He stated that he was not aware that a work permit was required to work in the state. The second named applicant came into the state in February 2007 with her three children, and a further three children were born to her in the state.

The first named applicant was refused jobseekers allowance in 2009, and his appeal was refused in 2010. He was also advised that he did not meet the requirements to receive welfare allowance and rent supplement. The second named defendant was refused child benefit in April 2009.

The respondents contended that the applications for leave to apply for judicial review were not made promptly and consequently the applicants were not entitled to bring their applications. The second named applicant failed to explain why she did not make an application for judicial review promptly. Due to this delay the High Court was satisfied that she was not entitled to seek leave to apply for judicial review in respect of the decision to disallow her the provision of child benefit

The respondent contended that the first named applicant failed to act promptly in bringing an application for certiorari. The High Court held that the applications for relief by way of certiorari could be maintained as there was correspondence taking place between the solicitors on behalf of the applicant and so he was trying to deal with the matter and acting promptly.

The first named applicant was permitted to reside in the jurisdiction as a self-employed person, but since he is no longer self-employed he is no longer entitled to a right of residence. The High Court acknowledged that under EU regulations the right of EU citizens to reside in another member is restricted. The first named applicant was unlawfully present in the country prior to the accession of Romania to the European Union. He was subsequently engaged in paid employment, but by virtue of the transitional measures contained in Annex 7 in relation to Romanian nationals, he was still bound by existing national rules and obliged to have a work permit to enter into employment.

This means that he was not lawfully employed in the jurisdiction and did not have a right of residence and so is not entitled to seek jobseekers allowance without a work permit.

The issue in relation to supplementary welfare allowance and rent supplement was dependent on the outcome of the situation in relation to jobseekers allowance. Therefore the court concluded that the first named applicant was not entitled to those allowances either and there is no basis for challenging the decisions made by the respondent in respect of those allowances.

Brophy Solicitors

22.05.12