David Stanton (Cork East, Fine Gael) | Oireachtas source

I thank the Deputies for tabling this Topical Issue which provides a useful opportunity for me to outline some initial views to the House. Clearly, this is a very important judgment and its full implications are being examined carefully. The court recognises the complexities of this issue in that it acknowledges the Executive function in not only controlling who should enter the State but also in regulating the activities of non-citizens while in the State. It has also had to consider the distinctions in rights between citizens and non-citizens in the context of Article 40.1 of the Constitution.

The right of asylum seekers to work is an issue I have raised previously and in recent weeks both the Tánaiste and I asked our officials to begin work to identify the options for and barriers to asylum seekers in accessing the labour market in particular defined circumstances. Yesterday’s judgment gives this work increased emphasis and priority. The judgment has concluded that an absolute ban on the right to work, as distinct from a time limit being set in legislation or by some other means, is contrary to rights under Article 40.1 of the Constitution. The court recognises that this is a matter for the Executive and the Legislature to consider and, accordingly, has adjourned consideration of what order it should make for a period of six months. Full consideration will be given to the judgment in the coming period and it is expected that the State will make submissions to the court on the format of the order it is to make at the appropriate time.

The judgment raises obvious policy, legal and operational issues and my Department, working with the Office of the Attorney General and in consultation with other Departments, will be examining its impacts in the coming period. Proposals will be brought to the Government as soon as that process concludes. Contributions from Members of this House to this process will also be carefully considered.

The judgment should not be looked at in isolation without recognising the considerable changes that have already been made to the system of international protection and the improvements that have been made and are continuing to be made to the direct provision system. The new asylum legislation which commenced on 31 December last has been specifically designed to address the delays in decision making which resulted in increased time spent in direct provision accommodation. Positive determinations have been made in 115 cases in the first three months of this year, the result of which is that the individuals in question are fully entitled to access the labour market.

Regarding the overall length of stay in direct provision accommodation, since the working group led by Mr. Justice McMahon examined the issue, there has been a radical improvement in the length of time persons spend in the direct provision system. Figures show that 72% have been in direct provision accommodation for three years or less since the date of their application. This compares to a figure of 36% for persons who had been there for three years or less when the data were compiled for the working group in 2015. In other words, there has been a complete reversal in the profile of the length of stay since the working group examined the matter. These improvements are as a result of concerted efforts to deal with the cases of applicants five or more years in the system.

Overall, 92% of the McMahon report’s 173 recommendations have been implemented, partially implemented or are in progress. This is a significant increase on the figure of 80% reported in the first audit of progress published last June. That means 121 of the recommendations made have been implemented, with a further 38 either partially implemented or in progress. Two of the most recent recommendations to be implemented involve bringing the offices of the Ombudsman and the Ombudsman for Children into the system whereby they can now hear complaints from residents of direct provision centres.

The McMahon report also focused on improvements in living conditions in direct provision centres. A programme of independent living is being rolled out across the centres to enable residents to have access to self-catering options. A self-catering system is in operation in Mosney, with further kitchens installed and becoming available for use by residents in centres in Clonakilty, on the Kinsale Road, in Knocklisheen and St Patrick’s in Monaghan. In addition, a food hall was opened at Mosney in January this year which allows residents to acquire their own food through a points system.

The question of the right to work is closely intertwined with the processing times for first instance decisions. In many EU member states the right to work is not unfettered. It often arises after a particular period of time, usually nine months to one year, and in many instances is limited to particular job categories. In Sweden and Portugal, for example, the granting of a right to work coincides with the withdrawal of financial supports. One of the principal aims of the International Protection Act is to process cases as quickly as possible in orrder that persons granted permission to stay will have an automatic right to work. Providing for a legal or practical limitation on the time taken to process an application for asylum is one option mentioned in the judgment that may be permissible. This will be a matter for further consideration.

The full implications of the judgment are being examined, including the wider implications for the operation of the common travel area and the upcoming Brexit negotiations. However, what can be said at this point is that the Government, through its various measures to improve processing rates, is moving to the stage where first instance decisions on status will be made as quickly as possible, with persons granted status having an automatic right to work. Clearly, the alignment of these important developments will form part of the detailed consideration and response to yesterday’s Supreme Court judgment.

See this speech in context