Charles Flanagan (Laois, Fine Gael)
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I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to accept the following measure:Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast),a copy of which was laid before Dáil Éireann on 22nd November, 2017.

I am pleased to have the opportunity to present the proposal of Government that the State opts into the EU reception conditions directive, recast, under the terms of Protocol No. 21, annexed to the treaties of the European Union. Last Wednesday, the opt-in proposal was discussed and broadly welcomed by members of the Oireachtas Joint Committee on Justice and Equality. The motion was subsequently passed by Seanad Éireann earlier today. If the House's approval is granted this evening, the formal notification letter will be sent to the European Council and the European Commission immediately thereafter so that we will be in a position to begin the four-month compliance procedure with the Commission. I should point out that this four-month period is mandated under the EU treaties.

The migration crisis and asylum have been in the headlines here and around the world for a number of years now. For this reason, I wish to take this opportunity to clarify some issues. The Government has made a strong commitment to playing its part in addressing the refugee crisis arising from the protracted conflict in Syria. Deputies will be aware of our voluntary opt-in to the EU resettlement and relocation programmes which will see 4,000 people coming to Ireland to begin a new life here. Deputies will also be aware of the commendable work of our Naval Service which has come to the aid of those fleeing conflict as they perilously cross the Mediterranean Sea to Europe. We have made a significant contribution to the international humanitarian aid directed towards victims of the Syrian conflict through our partner NGOs and a raft of international organisations.

It is important to clarify any potential misunderstanding that may arise in respect of those fleeing conflict in Syria. First, those who come to Ireland from conflict zones under our resettlement programme arrive with refugee status. Second, those who have come from Greece under the European Union relocation programme will have their status determined quickly and usually within a period of three months. In both cases, those coming to Ireland under the Irish refugee protection programme will already have full access to our labour market. Separately, based on the current situation, those who come to Ireland of their own volition and make an application for international protection upon arrival generally come from different regions. Currently, Georgia, Albania, Pakistan, Zimbabwe and Nigeria constitute the top five countries of origin of applicants for international protection who present spontaneously at our frontiers and enter the international protection applicant process. Each application is, of course, considered solely on its own merits.

The Supreme Court gave its judgment in the NVH case on 30 May last and, having given the matter detailed consideration, the Government chose to interpret this decision in a broad way, reflecting the calls from Deputies and Senators and acknowledging the work of the McMahon group and a number of NGOs in so far as they were encouraging that Ireland should align its bespoke system with European norms and standards. In opting into the EU reception conditions directive, recast, the Government has chosen to be ambitious and to enhance and protect the rights of international protection applicants and their families. We are using the opportunity afforded to us by the Supreme Court decision to continue our programme of reforms undertaken since 2014. In addition to labour market access, the directive also includes important provisions on children’s rights, including rights for unaccompanied minors, as well as provisions on health care and education. Participation in the directive will place the provision of material reception conditions for applicants, which are currently provided for under the Executive system of direct provision, on a statutory basis and it will be underpinned by EU law for the first time.

The State already has a functioning employment permits system for third country nationals which we must be careful not to disrupt or undermine, nor must we take any action which could be detrimental to our legal migration system. The court’s judgment acknowledges the role of the Executive and Legislature in setting these parameters. Once the State’s participation in the directive is confirmed, I intend to provide for access for eligible applicants by way of an immigration permission which would exempt applicants from the employment permits system and any associated fee. In determining the list of sectors of employment to which access will be granted, regard will be had to the skill set of applicants and to labour market gaps as well as to the expert advice of front-line Departments.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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The balance of the Minister's contribution can be included in the Official Report.

Charles Flanagan (Laois, Fine Gael)
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I did not realise I was so constrained. In any event, I undertake to listen closely to the points to be raised.

Fiona O'Loughlin (Kildare South, Fianna Fail)
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I note that the Government has to seek the approval of the Houses of the Oireachtas on opting in to the directive which will provide for minimum best practice standards for the reception of asylum seekers, and this is only right. There is no doubt that opting in to the directive entails allowing asylum seekers limited access to the labour market. In general, Fianna Fáil supports the decision to opt in to the directive, which was a recommendation of the McMahon working group. It will bring Ireland's asylum system in line with European norms.

Fianna Fáil has long advocated for reform of the direct provision system. Asylum seekers spend far too long in the system which was designed in 2000 to be a short-term interim provision to deal with the high number of asylum seekers entering the State. That was to be an interim measure but here we are 18 years later. At present, approximately 36% of residents spend two years or more in direct provision, which some of them have described as a form of internment. The delays in assessing applications for asylum remain unacceptable. The long periods spent in direct provision have a negative impact on both the mental health and well-being of the individual. It also impedes integration and creates a legacy of dependency.

The McMahon working group published its report in 2015. It made a number of recommendations, including that asylum seekers who are awaiting a decision on their application for asylum for more than nine months and who have co-operated with the process should be allowed to work. Fianna Fáil supported the recommendation. Three years have passed, however, and only now is the Government starting to act. I contend that the Government is only acting now because it is being forced into implementing the recommendations of the Supreme Court which concluded in May 2017 that prohibiting asylum seekers from working is unconstitutional. Despite that Supreme Court judgment, the Government has delayed introducing provisions to allow asylum seekers work. The ban on the right to work will be struck down as unconstitutional on 9 February 2018. Therefore, a temporary measure has to be put in place between 9 February and the date on which Ireland will have completed all necessary measures to opt in to the directive. Why did it take so long? I contend that there was appropriate time to deal with this without having to put an interim measure in place. We should have gone straight to a situation of opting in without interim measures. The interim measures permitting asylum seekers to work are restrictive. They are restricted to seeking jobs in specified sectors and the job must attract a salary of at least €30,000. I accept that the Minister spoke about the issue of asylum seekers having to pay for an employment permit. If my understanding is correct, that will not now be the case.

In general, the implementation of the reception conditions directive will have positive implications beyond the right to work. These include greater protections for children and vulnerable applicants seeking asylum. The asylum reception system which we call direct provision will have to be put on a statutory footing and this will ensure that the system has appropriate parliamentary oversight. This must be a welcome step towards introducing a more humane reception system for asylum seekers.

I understand work permits will be restricted by the list of highly skilled and ineligible categories that apply to work permit applicants, which are very restrictive and exclusionary criteria. The current list indirectly discriminates against women, as the majority of employment categories eligible for work permits are in male-dominated jobs. Female asylum seekers would, then, be additionally adversely affected by this intern scheme as it currently stands.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Ar an gcéad dul síos, ba mhaith liom a rá go raibh cuid mhaith díomá faoin bplean agus faoin scéim a chur an tAire os comhair an choiste an tseachtain seo caite agus atá os ár gcomhair tráthnóna inniu. As I said last week in the committee, the Department appears to want garlands and congratulations for this measure, which is quite extraordinary given that despite the positive language and the move to engage fully with the consensus, since 1996 successive Governments have opposed the right to work for asylum seekers. This has been re-emphasised most recently in the International Protection Act 2015 and we are only discussing this directive and the right to work on the basis of the NHV v. the Minister for Justice and Equality last May. The Government now arrives with an interim measure that is impossibly restrictive and it is difficult to anticipate any asylum seeker being in a position to obtain work before the passing of the legislation.

The restrictions have been detailed and include having to pay over €30,000 per annum, with some 60 occupations excluded and a cost of between €500 and €1,000 for a work permit. That would be an extraordinarily high threshold if it applied to Irish citizens and many here would struggle to satisfy the criteria, let alone those who are fleeing war and oppression. To say this is a day late and a dollar short would be a bit of an understatement. The directive is an improvement and we support the Government's decision to transpose it but it needs to go back to the drawing board. Legislation will ultimately issue for the full implementation of the directive although, as Deputy O'Loughlin outlined, despite the fact that direct provision was intended as an interim measure, we are still dealing with it a long time later. The interim measures are simply not good enough and do not constitute a satisfactory right to work. I also believe this would be open to legal challenge in advance of the passing of primary legislation. The NHV judgment is far from perfect and I would have preferred the Supreme Court to have gone a degree further but there was a clear expectation that the Government would act and it has been quite slow to do so. The decision was made in May last year and we are only seeing action now.

We have been contacted by a number of people in organisations working with asylum seekers. They are very disappointed and are angry at the deeply restrictive nature of this approach. I am also concerned that the final legislation might involve pull factors and gaps in the labour market, although the Minister attempted to reassure me in a previous debate. The right to work, as the Supreme Court recognised, is based to a large extent on human dignity and on people's ability to play a full role in the community. There should not be a utilitarian approach to fill gaps in the labour market. We must have a full and realistic right to work, with nine months much too long to wait. I would not like to see anything like the restrictions that exist under the Employment Permits Act 2003 and in the unacceptable interim measures, on which the Government should go back to the drawing board.

Brendan Howlin (Wexford, Labour)
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This proposal is a belated response to a long-running scandal. All of us have become somewhat inured to the unconscionable delays in the asylum seeking decision-making process. As Minister of State, my colleague Senator Aodhán Ó Ríordáin invited Mr. Justice Bryan MacMahon and a group of experts to review the whole asylum system in 2014 and that investigation resulted in 172 recommendations including, crucially, on the right of asylum seekers to access the labour market. Nothing happened on this front until May last year when the Supreme Court declared section 16(3)(b) of the International Protection Act, which prohibits access to employment for applicants, to be unconstitutional. Significantly, the court did not immediately strike down that section, as it might have produced a chaotic result. Instead, it invited a response from Government on how it wished to proceed. The court adjourned consideration of its order for six months and invited the parties to make submissions on the form the order might take. At the hearing on 30 November, the Government outlined its plans to opt into the directive and ask for another extension of time to cover the seeking of Oireachtas approval and an additional four-month process which would be required, as the Minister has again said tonight, to inform the European Commission that we were opting in.

The Supreme Court was clearly unhappy with the further delay in dealing with this issue that has characterised every stage and which can only be seen as unreasonable. The court struck down the prohibition on international protection applicants accessing the labour market as and from 9 February 2018. As usual, it is the legislative branch, this House and the other House, which is the last to be informed of this, with this only coming before committee last week and expected to be passed by both Houses now. If we do not opt into the directive by 9 February we will need temporary measures. Applicants will, as an interim measure, be applying via the employment permit system in the Department of Business, Enterprise and Innovation on the same basis that applies to other non-EEA nationals, even though no other non-EEA nationals have the benefit of a Supreme Court decision regarding their employment rights. We have not, as yet, seen a full solution to this long-running issue but perhaps one is in sight, as the Minister said.

We welcome and support the decision to opt in to the directive but we are all agreed that the access to the labour market the Minister proposes as a interim measure is not acceptable or adequate. The degree of access he proposes is not something decided by the directive or EU law but is a decision for the Minister and the Government themselves and one on which the Minister is taking a far too restrictive and cautious approach. I recognise that there are issues in determining the level of access to be provided by applicants but many applicants will have to be examined in very great detail once the information is known. The Minister says that, in determining the list of sectors of employment to which access will be granted, regard has to be had to labour market gaps. We will need to be told considerably more than that.

In fact, it may be good to contemplate social employment to involve people and to ensure they are fully integrated into Irish society. I ask the Minister to consider that. The UK and Ireland opted out of the reception conditions directive in 2003 and 2013, in line with their treaty entitlements. Up to now we have been semi-detached members of the common European asylum system. We are in the Dublin regulations and Eurodacbut have opted out of the reception conditions directive. We will obviously have to reconsider these matters given the implications of Brexit. While I welcome that we have finally opted in to this directive, albeit belatedly, it really behoves the Minister to come up with a better interim solution than the inadequate one he is proposing.

Paul Murphy (Dublin South West, Solidarity)
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It was Tony Benn who said that the way a government treats refugees is very instructive because it shows how it would treat the rest of us if it thought it could get away with it. That is true, but it is a horrifying thought to think that the rest of us would be put in what, for those living in them, are open air prison camps where people have very little autonomy and very little control over their lives. People in such places have, until now, had no right to access work. They are struggling to get by on just over €20 a week. These people are prey to mental health problems, and the potential for exploitation exists. It is an inhumane and barbaric system, and it is a stain on our society.

I recently had a parliamentary question answered by the Minister which illustrated the power imbalance. It related to a case in Limerick, and the fact that the centre that a person happens to stay in can simply tell a refugee that he or she is not staying there and is not using his or her bed. One can dispute that but will have no access to an independent appeals process where his or her side of the story can be set out. All of the power, unfortunately, lies with those who are not the asylum seekers.

I welcome that we are signing up to this directive, but we should have signed up to it a very long time ago. The reality is that the Government has been dragged, kicking and screaming, to do this. The only reason it is doing this is that it is being forced by the Supreme Court to do it, and even then it is acting belatedly and in the most limited fashion possible. The Minister knew about this. He had notice about this since May. Instead of acting then he has waited until now, when we are a couple of weeks away from the February deadline.

The interim solution is extremely poor. Refugees are not allowed access to some 60 occupations and have to have a job that pays more than €30,000. This will simply exclude a very big majority of asylum seekers. In response, the Minister and the Government have said that it is a temporary measure and that they are working on something else. The "something else" is still quite vague, as previous Deputies have referred to, and how limited it will be remains to be seen. The key point is that direct provision was originally supposed to be a short-term solution, and this stain on our society, this barbaric system, still exists today. People have to be given the right to access work fully. Their rights to asylum and to stay in this country should be respected.

Bríd Smith (Dublin South Central, People Before Profit Alliance)
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The 2013/33EU directive seeks to guarantee a dignified standard of living for asylum seekers in the EU and to ensure that their human rights are respected. We now have an extraordinary situation where we are guaranteeing the human rights of asylum seekers, but in the interim - we are not sure how long that will be - they will be barred from working in care work, as health professionals, in construction, retail, domestic work and hospitality. The list of restricted occupations is shocking. I would like to know what they can work at. I have been making representations for almost a year to the Department of Justice and Equality for a Libyan man who was offered a job as a surgical consultant at Galway University Hospital but his application for a work permit has been refused by the Minister's Department and he cannot start that employment. The Irish Naturalisation and Immigration Service, INIS, has finally told me that it has a policy of not employing Libyans except for those involved in aviation and the beef trade.

We take an extraordinary attitude to human beings and to human labour. We have said repeatedly in this House that with every hungry belly comes a pair of hands and a brain. People have much to contribute to society, but they are being treated poorly. They are told they can do one thing but not the other, and they can be imprisoned for 12 or 14 years. The damage is being done to those who had hoped for so much when this Supreme Court ruling came out, and indeed those who had dared to hope when Mr. Justice Bryan MacMahon issued his report. I would love to know what he would say to the Minister about this measure today.

I am shocked by the vindictiveness of this and I cannot fathom why the Minister and his Department are taking these measures. The only thing I can think of is that the Minister does not really respect or get the idea that refugees need refuge, and he has no problem punishing them for fleeing persecution and war. It also might be a matter of sending a signal to low-paid workers in this country, to show them what is being done to protect them by not allowing refugees to compete against them for jobs. I believe it is a combination of all of these things, and it is outrageous. The brave Rohingya man who took the case to the Supreme Court in the first place may now ironically find himself unable to work in this country because he does not have €1,000 and he cannot get a job outside of all of those listed industries which will pay him at least €30,000 a year. The Government's response is outrageous and lacking in empathy and dignity.

Mick Wallace (Wexford, Independent)
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We all welcome the fact that we are opting in to this directive. I was surprised that a rushed 40 minute debate was arranged for this evening. I do not know how the decision was arrived at. A more serious debate a little bit further down the road might have made more sense.

This matter was debated for more than an hour at the Committee for Justice and Equality last week and many of the issues were teased out. The opt-in is not the issue. Everything else is. As has been stated by others, if the Supreme Court had not made the ruling it is unlikely we would be acting on this yet. We argued about the interim arrangement, which is totally ridiculous. The notion that an asylum seeker is expected to pay €1,000 for a permit to work for one year and to get a job that pays more than €30,000 a year is, as we discussed at the committee, out of the question. At least 99% of asylum seekers will not have an opportunity to work in that space. As we pointed out to the Minister at the committee, we have a suspicion that, given the clarity of the Supreme Court decision, there is a very good chance the Government's position of not allowing these people direct access to work from 10 February this year is unconstitutional. This may come back to bite it, but the State is very familiar with fighting avoidable legal battles.

The manner in which we have treated asylum seekers in this country is horrific. In the Minister's defence he is not alone, given that 20 years ago asylum seekers had the right to work in Ireland, but it was taken away. We introduced direct provision in 2000, so successive governments since have done nothing about it. They changed nothing. The length of time these people have spent living in these conditions does not bear thinking about. Deputy Clare Daly and I have been in contact with a number of people in direct provision, in the past few months in particular. These places are like refugee camps, to a degree, and I suspect the way we are organising them is part of the problem. The State is paying more than €60 million per annum for this. That is a large amount of money. We are outsourcing responsibility to private companies which are not treating well many of these asylum seekers in direct provision.

I know some of them really well and I have some detailed descriptions of what is going on in the place, what the food is like, the arrangements for young people and what they have to go through in terms of shared space and God knows what else. One of the bigger companies that has the contract here, and it is all being privatised, Aramark, is the largest prison catering company in the United States, and we know how they run their prisons. Those guys are making a fortune in Ireland.

A report was drawn up by Keelin Barry in 2014 into one of its units called What's Food Got To Do With It: Food Experiences of Asylum Seekers in Direct Provision. To cite that report, quite a lot of people said their food was inedible or not palatable on any level. Many people said the level of waste was disgraceful. There was not enough fruit and vegetables, with high sugar and high fat content monotonous food. Food was culturally inappropriate, bland, inedible and too salty.

It is not easy to fix any of these issues but given that this problem has being going on for so long, the State should hang its head in shame in terms of the way we have dealt with asylum seekers. I am sorry to say that while we will take in 4,000 over a period, we have not had a good approach across the board in this area. We should be ashamed of that.

Michael Healy-Rae (Kerry, Independent)
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The first thing I would say to the Minister is that I do not blame him one iota for this situation. He inherited the situation in which he finds himself. I am horrified at the way these people have had to live over many years but I certainly do not lay the blame for that at the Minister's door. I would not do that but I would say there is no point in looking backwards. We have to look forward and be positive. I am terribly sorry for the way these people have had to live. I have dealt with them for many years in Killarney town and I always thought it was horrible to have healthy, fit, fresh people who wanted to work, to be part of our communities and to make a few euro for themselves but, unfortunately, our rules prohibited them from doing so. My late father was always horrified at the idea of fine, fresh people being told that they can stay in their rooms, they will be given a few euro but they cannot go to work, despite the fact that there was plenty of work available for them. That was alien to everything we stand for because all we want is for people to be able to go out in the morning to do some work and get a bit of money for it, and more power to them.

Any way we can work together to improve this situation and to right the wrong that existed in the past is what this is all about. I agree with my colleagues here who said that this measure does not go far enough, and I respect the way the Minister is putting the case forward on which he is 100% right, but we will have to try to improve it gradually to ensure that in terms of the fine, respectable people who come here for whatever reason, and I will not go into that, we welcome them, try to allow them be part of our society, get work to earn money and live the same as every one of us want to live. We are here for a very short time, not a long time, and the idea of people being inside a room and not allowed to work is awful.

Mattie McGrath (Tipperary, Independent)
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I am delighted to speak on this very important issue of direct provision and employment. The system of direct provision for asylum seekers is almost 18 years old and from the beginning, it has been a cause of significant controversy and debate. Among the issues raised most recently are the duration of the stay in direct provision, the impact of that on family life, children, adults, spouses, siblings and so on, oversight and monitoring and the right to work.

In 2015, the Joint Committee on Public Services Oversight and Petitions stated that the system is not fit for purpose and recommended that it be replaced. That is almost three years ago. Why the delay? From a humanitarian perspective, we are duty bound to offer whatever assistance we can to those genuinely in need of asylum and ensure that those who enter the direct provision system are treated with dignity and respect. That is the very least we should do as a Christian country. It is a duty of the State under any human rights charter, never mind international human rights charters, to look after people and give them a modicum of respect and dignity.

I submitted a parliamentary question well over a year ago on this issue to the then Tánaiste and Minister for Justice and Equality seeking the number of children who have been born to those in the direct provision system since its introduction in 2000. I received a reply from the then Minister of State, Deputy Stanton, that the information I had requested is not readily available as it is not collated by either the Department of Justice and Equality or the Registrar of Births, Deaths and Marriages. That is outrageous. Are we just locking them away behind closed doors? Is it a case of hear no evil, see no evil, speak no evil? It is unbelievable. I am not blaming the then Minister of State for that but it is outrageous that we cannot tell the number of newborns in the centres. I hope we can tell the number of adults in them. It is scandalous and extraordinary, when one thinks about it. Presumably, the children born to those in the asylum process are de facto part of that process, yet we have no data or numbers available. That is shocking. The number of asylum seekers accommodated on 31 December 2015 was 4,696, an increase of 332 persons or 7.6% on the same date in 2014. This is the second year-on-year increase in seven years.

The Reception and Integration Agency spent €57.025 million on accommodation for asylum seekers in 2015, an increase of 4.7% on 2014. Therein lies the problem, and Deputy Wallace and others referred to it. It is a gravy train for some unscrupulous so-called businessmen and entrepreneurs, and it is a shame. We will be having tribunals into this issue as we have inquiries now into so many things that went on in the past. We are told that we have done all our washing and that we have a lovely clean country now. We will have inquiries into this issue when the Minister and I are no longer in this House. Shame on all of us to have allowed this go on under our noses.

Eamon Ryan (Dublin Bay South, Green Party)
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We need to change our entire refugee asylum system. For many years it has been need of reform because compared with neighbouring similar countries, we are remarkably negative and restrictive in our assessment of asylum applications. Our percentages of refusals are a multiple of those in similar countries.

The direct provision system is incredibly expensive in terms of the amount of money we have to spend. Even the deportation process is unclear, not effective and deeply destructive to people who are caught in the middle of it in terms of their health and welfare. We are implementing a system that is inhumane and wrong, as the Supreme Court recognised. The delay in reacting to that Supreme Court judgment and the fact that we have a two-phase response without any real clarity in terms of the end point reflects that lack of priority, attention, concern and care within the Minister's Department regarding this issue.

We also need to carry the public with us on this issue. I believe the public are with us in recognising that the current direct provision system is wrong but we need to get people in the process working, and have the public with them on that.

I read the Minister's contribution in terms of the example of Syrian refugees. He said that under the relocation they will be covered because their cases are determined within three months. My experience of refugees within that programme is that they are not being determined within three months and they are being maintained in the same difficult system where their health and well-being are being undermined.

The way we are introducing that scheme and working with it, in that their relocation will be to towns which almost by definition will not have huge employment opportunities, will make the problem worse. We need to approach this not just in terms of how we get those refugees and others working but how we can introduce them into a community where everyone is working.

It would work in a kind of collective way with public support for what was being done. We should use it as an opportunity to get public support for getting our asylum seekers working by engaging in a creative scheme where those towns which have been selected are given huge support to get employment working across the board. It is that sort of innovative, creative big thinking that we need but we see none of it in what has happened over the past nine months or the years preceding them. That needs to change. While we support opting into the directive to help us do that, the Minister must use the interim period to be really ambitious about what we do and how we manage our asylum process.