Dr. Liam Thornton:

I thank the members of the committee for their questions. First, in regard to Senator Zappone's question on having an independent complaints mechanism, several groups have said that the Health Information and Quality Authority could be the body that would address complaints asylum seekers may have about the quality of accommodation, food or the behaviour of managers at accommodation centres. The structure is in place that would permit HIQA to investigate those types of complaints. It should be done independently of the Reception and Integration Agency because, as Senator Zappone noted, the Government's reply to the list of issues seems to have discounted any possibility of any independent oversight mechanism for complaints within the direct provision system. I imagine the UN Human Rights Committee, by placing this matter on its list of issues, may be very concerned that if an independent complaints mechanism is not in place, a variety of rights under the ICCPR could be violated, such as issues related to access to justice and a fair hearing, and that may impact substantively on the rights to private and family life. Conditions may also be inhuman and degrading and go against the right to equality.
I mentioned in my full report that the direct provision system is legally suspect. I must be careful as there is a case before the High Court on the constitutionality of the direct provision system. Therefore, I will speak in general terms and not with reference to anything that is going on at present. Section 246 of the Social Welfare Consolidation Act, as amended, prohibits asylum seekers from being habitually resident. Therefore, they are not entitled to any social welfare payments except for emergency needs payments. From freedom of information documentation to which I had access, in 2006 and 2007, the then Secretary General of what was then the Department of Social and Family Affairs stated in a letter that the payment of €19.10 per week to asylum seekers was ultra vires- outside the powers - of what is now the Department of Social Protection. That letter was sent to the then Secretary General of the then Department of Justice, Equality and Law Reform who refuted that allegation, but the Secretary General of what was then the Department of Social Family Affairs stated there was no grounds for paying the €19.10 per week because asylum seekers had been prohibited by the Oireachtas from being entitled to any welfare payments whatsoever. It is on that basis I make the charge that the system of direct provision is legally suspect, that payments are being made without any legal authority by the Department of the Social Protection.
Senator Wilson mentioned the costs of the system. Speaking from memory, I believe the cost of direct provision accommodation last year or possibly in 2012 was €62 million. I do not have a recent figure for the amount paid in direct provision allowance but I have seen figures from 2007, 2008 and 2009 that were in or about €3 million, if my memory serves me correctly.
Regarding Senator Wilson's second question, the UN Human Rights Committee, in its general comment No. 15 on the rights of aliens and its general comment No. 31 on nature of state obligations, stated quite categorically that asylum seekers enjoy all rights under the ICCPR as nationals.