Seanad debates

Tuesday, 27 June 2017

Commencement Matters

Direct Provision System

2:30 pm

Photo of Trevor Ó ClochartaighTrevor Ó Clochartaigh (Sinn Fein)
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I dtús báire, tréaslaím leis an Aire as a athcheapachán mar Aire. I congratulate the Minister on his reappointment as a Minister. I thank him for coming in to take this question, which arises out of the case of a Burmese man who spent eight years in direct provision before getting refugee status. He unanimously won his Supreme Court appeal over laws preventing him working in Ireland before his status was decided. The seven-judge court unanimously agreed that the absolute ban was in principle unconstitutional but has adjourned making any formal orders for six months to allow the Legislature to consider how to address the situation. The court found in principle that when there is no statutory for processing asylum applications, the absolute prohibition on asylum seekers seeking employment in the Refugee Act 1996 and continued in the International Protection Act 2015 was contrary to the constitutional right to seek employment.

This is an issue we have raised on a continuous basis in the Seanad. In fairness, it has been raised by Senators across the House. This raises the question of what the Government is now going to do about the Supreme Court ruling in the six months that it has been given. We had a briefing last week from the Irish Refugee Council on this issue and it has made a number of recommendations. In summary, it has stated that the right to work should be granted to international protection applicants if no decision on their application has been made within six months of the date of the application. The Irish Refugee Council has stated that the period is recommended for several reasons. It is consistent with the timescale for granting the right to work as stated in the commission proposal for a further recast reception conditions directive. It is also in line with the requirement contained in article 31(3) of the recast asylum procedures directive that an examination procedure be concluded within six months. Similarly, six months is the same time period provided by section 39(5) of the International Protection Act 2015 from when a person may request information from the International Protection Office as to when a recommendation will be made on his or her application. This suggests that the Oireachtas, in line with other EU member states, should consider six months to be a reasonable period within which a person can expect an application to be fully examined in a single procedure.

The Irish Refugee Council also recommends that the right to work be provided to persons who are caught by the transitional arrangements in the International Protection Act 2015, that is, the persons who are at different stages of the process but who are now back under the International Protection Office for the single procedure.It notes, as we have noted, that Ireland is currently one of only two members states that currently do not provide the right to work to protection applications. The Government now has the opportunity to align our practice with other member states as a member of the common European asylum system. It is of note that several member states provide protection applicants with access to the labour market at a much earlier stage. For example, Greece does so in zero months, Sweden does so in zero months, Italy does so in two months, Austria does so in three months and Germany does so in three months. I note that the Irish Refugee Council also submits that no conditions or restrictions should be attached to the right to work such as restricting it to particular professions or sectors. It believes, and I agree with it, that such restrictions or conditions may undermine the essence of the constitutional right itself, meaning that the right becomes illusory rather than effective in practice.

As the Minister will be aware, I would have been and still am very critical of the direct provision system, but this is a constitutional issue. It has the full backing of the Supreme Court in this regard. I would like the Minister to outline how the Government intends to address the issues outstanding around the right to work to allow these people that right.

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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I thank An Seanadóir Ó Clochartaigh for raising this important matter today. I welcome an tuasal Ó Bruadair and the boys and girls from the oak leaf county, Derry. They are always welcome to Leinster House and particularly welcome to the Seanad on this summer's afternoon.

This is an very important judgment and its full implications are being carefully examined. The court recognises the complexities around this issue. It acknowledges the role of the Executive in controlling and regulating this sensitive area of law and policy. It has had to consider the distinctions of rights between citizens and non-citizens in the context of Article 40.1 of the Constitution. The court has concluded that an absolute ban on the right to work for international protection applicants, as distinct from a time limit being set in legislation or some other means, is contrary to the rights under Article 40.1 of the Constitution. The court recognises that this is a matter for the Executive and Legislature to consider and, accordingly, has adjourned consideration of the order the court should make for a period of six months. It is expected the State will make a submission to the court in regard to the format of the order the court is to make at the appropriate time.

This judgment raises obvious policy, legal and operational issues across a wide range of Government Departments and agencies. To reflect the whole-of-Government approach which the judgment necessitates, I intend to seek the approval of Government to establish, with immediate effect, an interdepartmental working group to examine the implications of the judgment and to consider appropriate solutions as quickly as possible. Proposals will be brought to Government as soon as that process concludes.

The judgment should not be looked at in isolation without recognising the considerable reforms 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. Our new international protection legislation, which commenced on 31 December last, is specifically designed to address the delays in decision making with consequent increased time spent in direct provision.

The processing times for first instance decisions are closely intertwined with the question of the right to work. In many EU member states, the right to work is not an unfettered right, often arising after a particular period of time - usually nine months to a year - and in many instances is limited to particular job categories, etc. For example, in Sweden and Portugal the granting of a right to work coincides with the withdrawal of financial supports. One of the principle aims of the International Protection Act is to process cases as quickly as possible so that persons who are granted a permission to stay have an automatic right to work.

The full implications of the judgment will be examined in the coming period, including wider implications in regard to the operation of the common travel area and the ongoing Brexit negotiations. However, what can be said is that the Government, through its various measures to improve processing rates, is already moving to the stage whereby first instance decisions on status will be made as quickly as possible with persons granted status having an automatic right to work. The dovetailing of this work with the court judgment will be examined in the coming period. I will endeavour to keep Senators informed of progress as the situation develops.

Photo of Trevor Ó ClochartaighTrevor Ó Clochartaigh (Sinn Fein)
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I appreciate the Minister's response. To cut to the crux of the matter, we have a six-month period between now and Christmas. The basic question that these people, who are awaiting a awaiting a judgment on their asylum application, have is if they will be allowed to work.Will the Government bring forward legislation between now and Christmas that will grant them that right to work because many of these people in the system may have been waiting five, ten or even 15 years? They have not had the right to work in this State as a result. Can the Minister give us a guarantee that the Government will bring forward legislation between now and Christmas to make sure this right is adhered to and put in place by next Christmas?

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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I assure the Seanadóir, and the House, that I am committed to continuing the ongoing process. The Supreme Court judgment is clearly a most important judgment that will have significant implications for our international protection system across Government. I assure the House that my Department has made significant efforts to reform our protection system to ensure that applicants do not spend long periods awaiting a final decision on their application. This dovetails with persons granted status having an automatic right to work.

Our previous multi-layered and sequential system had many more opportunities for appeals on judicial reviews and ongoing legal challenges. Many of these did not foster a timely process of engagement. The single procedure is streamlining the process with the aim of providing first instance decisions as quickly as possible. My Department is also working hard to improve the living conditions in State provided accommodation centres, particularly for families. This is in line with a commitment given in A Programme for a Partnership Government. The latest update on the implementation of the recommendations of the McMahon report over the past two years by many Departments and agencies will be published shortly.

I am committed to continuing the positive work on this process. The Supreme Court ruling is now a priority focus for this ongoing programme of reforms and will receive full and careful consideration by the interdepartmental working group to be established by Government to propose an appropriate way forward in the shortest possible timeframe. Senators will appreciate that the judgment has raised issues not only of importance, but of some degree of complexity, which will obviously require detailed and careful consideration.