Mr. Nick Henderson:

I am grateful for the opportunity to brief the committee. The transposition of the RCD marks for the first time how we treat asylum seekers when they come to Ireland will be set down in law, which we welcome. We also welcome the committee’s engagement on the issue. As of March 2018, 5,318 people were living in direct provision and the issue, therefore, affects many people. Transposition will be by way of statutory instrument. We previously recommended that this be done by way of primary legislation. Statutory instrument reduces the opportunity for Oireachtas scrutiny of this important issue, while there has been no civil society opportunity for meaningful input into drafting of the statutory instrument. We have requested several meetings with Department of Justice and Equality officials to discuss the contents of the statutory instrument but have been unsuccessful in doing so.

The directive provides for how we treat people in a wide range of ways and not just in the context of the right to work. It contains provisions relating to detention, vulnerability, education, health and the withdrawal of reception conditions. The committee is not entirely toothless in respect of the use of statutory instruments. It could consider, for example, the recommendation of the Joint Committee on European Affairs of the previous Dáil. The committee produced a report in April 2014 regarding the assessment of current structures for Oireachtas scrutiny of EU affairs. The 17th recommendation in the report is that "draft statutory instruments together with an explanatory note be circulated to the relevant committee one month before they are signed". That is something the committee could consider.

I would like to mention three issues, the first of which is access to the labour market. Last May, the Supreme Court recognised that people awaiting an asylum decision had a constitutional right to work. As the chief commissioner of the IHREC said earlier, article 15 of the directive requires that member states must allow for effective access to the labour market. Unless access is effective, the right recognised by the Supreme Court on 31 May last year will be rendered illusory. The temporary scheme has been much criticised by a wide spectrum of organisations, including ourselves. Its restrictive nature is reflected in the fact that as of 1 May, according to a reply by the Minister for Justice and Equality to a parliamentary question tabled by Deputy Ó Laoghaire, there had only been one application for a work permit.

That is not a decision; it is just a single application. There have been 368 successful applications for self-employment granted . This is positive in that it reflects the intention to work, to integrate and to use the skills they have and the experiences of people who are waiting for asylum decisions. As has been remarked by this committee, however, there are issues regarding the precarious nature of self-employment.

Fundamentally, the work permit process is not designed for asylum seekers. The work permit process is designed to protect the Irish labour market. It is designed to identify gaps in the latter and then bring people in from elsewhere to fill those gaps. The work permit process is entirely inappropriate for people seeking asylum. A much more generous scheme is required. The Minister, Deputy Flanagan has said - and the Chief Commissioner of the Irish Human Rights and Equality Commission recognises - that when Ireland finally opts into the directive, the provisions will be more generous. However, we have no more information than that. We understand that there will be a nine-month timeframe but there will continue to be some sort of restricted professions. When the Minister was before the committee in January, he informed Deputy Clare Daly that he would make provision for a review - or, at least, that a final review would be done in April - and that he would supply its findings to the committee. Perhaps this could be followed up. The review could look at labour market gaps of some sort.

It is problematic that there seems to be an approach within the Department to tie Ireland's policy to that of the United Kingdom. The latter has a very restrictive approach to the right to work; it is only available to people who have waited for 12 months and then they are restricted to applying for a particularly small number of niche jobs on what is known as the shortage occupation list. We deem this to be problematic, especially in anticipation of Brexit, as two policies diverge.

The Irish Refugee Council calls for the right to work for people who have waited six months, with no restrictions as to the professions they can pursue. This provision should be immediately available to those who have already waited six months. This is against the background of long delays in Ireland's asylum procedure. It is estimated that if a person's case is not prioritised, he or she could be waiting at least 19 months just for an initial interview on the application.

We are also calling for a review of the barriers that make it difficult to access the labour market. These include: difficulties obtaining driving licences; opening bank accounts; and accessing housing. In our experience, these barriers exist for people who may have status and who are trying to transition out of direct provision and for those in direct provision who would like to work but who face these difficult problems.

I shall now turn to the issue of the withdrawal of reception conditions. Article 20 of the directive provides that a member state may reduce or withdraw reception conditions but requires that under no circumstances may a person be left in a state of destitution. This is very topical to our work at the moment. Since July of last year, we have worked with 30 people who have had difficulty accessing direct provision accommodation. This difficulty arises when, for example, a person applies for asylum in Ireland but does not enter direct provision or is in direct provision and then leaves it. People face difficulties re-entering the direct provision system to the point where we have worked with individuals who have been homeless or at risk of homelessness. This is very troubling. It is also in the context of existing homelessness services that are stretched. An additional problem arises because when a person is not in direct provision, he or she is not entitled to the allowance of €21.60 per week. Not only is the person without State-provided accommodation, he or she is also without an allowance. This is of major concern to us.

The Irish Refugee Council calls for Ireland to rule out any situation whereby somebody in need of basic subsistence may be subject to a complete withdrawal of reception conditions. Any decision regarding the withdrawal of reception conditions must be individual and it must recognise, as the directive does, that everybody is entitled to a dignified standard of living. Crucially - and this is where Ireland's policy and procedure will be required to change - the directive requires that a person has the right of appeal against the withdrawal of reception conditions. If a person is told that he or she is not entitled to live in direct provision accommodation, under the directive, he or she would theoretically have the right of appeal. This measure does not exist under current practice or procedure and it requires change.

The third and final issue that requires quite significant change from existing policy and procedure is the vulnerability assessment required under the directive. Currently, beyond a basic health screening provided to applicants who choose to avail of direct provision, there is no multidisciplinary assessment of vulnerability of the special needs of people seeking asylum. This is an important point. Early and ongoing identification of vulnerability is important, not just to ensure humane living conditions but also to ensure that applicants are supported in engaging with the asylum procedure. Vulnerability identification leads to better quality decision-making and can reduce delays that are prevalent in the Irish asylum system. For this to happen, there needs to be training, guidelines and robust systems that can work to identify vulnerability. It also needs to be cross-departmental to include the Department of Health and the HSE. This must be set out clearly. We are slightly concerned that the statutory instrument has the potential to not detail in full how a vulnerability identification mechanism would actually work.

It is important to say that the reception conditions directive provides member states with a wide degree of latitude in transposition and implementation of the legislation. Article 4 of the directive says that member states may introduce more favourable measures. In other words, the directive is a floor rather than a ceiling, and we will work towards ensuring this. The Irish Refugee Council is ready to work with its partner organisations in civil society, with this committee and with the Department of Justice and Equality on how the directive is designed - so far we have been relatively unsuccessful in that regard - and, crucially, on how it will be implemented. The directive contains a broad range of provisions, the working of which will only be identified when they are rolled out in practice.

I thank the committee and I welcome any questions that members may have. I reiterate that there is a recommendation from the European Union Affairs committee, and an opportunity for this committee if it wished, to request the statutory instrument from the Department. It could be provided in that way.