FLAC welcomes High Court judgment finding excessive delay in determining protection application for family in Direct Provision

3 February 2017

FLAC (Free Legal Advice Centres) welcomes today’s decision of the High Court to award compensation to a mother for the delay in determining her application for subsidiary protection. The delay led to her being refused child benefit and other social benefits to which she might have been entitled.

The woman and her husband applied for international protection in Ireland in 2006 because of the risk faced by them in their home country. Their first child was born in 2007 while they resided in Direct Provision. They made their first application for child benefit in 2008 , which was refused. It was not until May 2012, more than six years later, that a final decision was made on their protection application by the Minister for Justice and Equality and they were finally granted child benefit in respect of their son.

The principal issue in these proceedings was whether the delay in deciding their application for subsidiary protection, which also resulted in lack of access to social benefits including child benefit, was so unreasonable that the rights of the mother were breached under EU law and the Constitution. While the Court did not find that the refusal to pay child benefit to families in direct provision was a breach of rights per se, it did find that the delay on the part of the State in finally making a decision on their application for international protection was culpable. Accordingly, the State is liable to pay appropriate compensation.

Commenting on the case, FLAC Chief Executive Eilis Barry, said: “FLAC has long been critical of the direct provision system. This is not least because of the protracted period for which families and individuals remain in the system without access to basic rights and entitlements such as the ability to work, live independently and access basic State benefits, including Child Benefit. This case is important as it confirms that the delays in decision-making on international protection claims may ultimately lead to a breach of Constitutional and EU law rights that may be vindicated through the Courts.”

She welcomed the comments of Mr Justice White that

Administrative authorities should be conscious of the length of time applicants seeking asylum in this country spend in direct provision whether by way of seeking refugee status, subsidiary protection or other consent mechanisms. The direct provision system meets the basic needs of the applicants but is far from ideal.

He also stated that very lengthy periods in direct provision are undesirable for those applying for refugee status or subsidiary protection, and that it was incumbent on the Department of Justice and Equality to ensure that their applications are processed within a reasonable time.

Sinéad Lucey, FLAC Managing Solicitor, said: “We are delighted that the perseverance of the clients in this case, in pursuing their rights while in direct provision, has been vindicated. While it remains to be seen how the Court will determine the compensation to which the applicant is entitled, the principle established in this case is important for all those with no choice but to accept the direct provision system pending the determination of their international protection claims. While the law is changing in this area, this case gives a further impetus to ensure our administrative systems are sufficiently resourced to avoid the type of delay seen in this case.” 

/ENDS

 

Editors’ notes:

1. FLAC (Free Legal Advice Centres) is a human rights organisation which exists to promote equal access to justice for all. As an NGO, FLAC relies on a combination of statutory funding, contributions from the legal professions and donations from individuals and grant-making foundations to support its work.
2. FLAC offers basic legal information through its telephone information line (1890 350 250) and free legal advice through a network of volunteer evening advice centres – more at www.flac.ie/help/. It also campaigns on a range of issues including consumer credit, personal debt, fairness in social welfare law, public interest law and civil legal aid.