Compensation awarded for excessive delay in determining protection application for family in Direct Provision
17 February 2017
FLAC (Free Legal Advice Centres) welcomes today’s ruling to compensate a mother who experienced excessive delay in processing her application for subsidiary protection, saying the case is one of the first where someone in direct provision has received compensation for such delay. The legal rights group believes it highlights the long overdue need to address human rights failings in the Direct Provision system.
The High Court gave judgment in the case on 3 February and determined that compensation was due to the mother. It ordered today that the mother should be awarded compensation for the period of delay in deciding her application.
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.
The delay in determining her application for subsidiary protection led to her being refused Child Benefit to which she would othewise have been entitled. FLAC represented the woman in her case.
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 therefore very significant 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 added.
Ms Barry 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.
The judge 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. 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 new International Protection Act should address the level of egregious delay in decision-making that has dogged the asylum system, this does not remove the onus on the state to be proactive in bringing the Direct Provision system to an end,” concluded Ms Lucey.
/ENDS
Editors’ notes:
- 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.
- 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.
- In the case decided by Mr Justice White on 3 February, DN v Chief Appeals Officer & ors, the woman was seeking remedies on behalf of her son. She and her husband applied for international protection in Ireland in 2006 because of the risk to 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. - IN FLAC’s 2010 analysis of Direct Provision, One Size Doesn’t Fit All – A Legal Analysis of the Direct Provision and Dispersal System in Ireland, 10 Years on, (available at http://www.flac.ie/publications/one-size-doesnt-fit-all/) among the rights violation identified were:
- Right to work: Direct Provision residents are prohibited from working which causes them considerable distress and could be remedied if the Government opted in to the European Union Reception Directive, where “Member States cannot deny applicants for asylum access to the labour market and vocational training six months after they have lodged their application”. There is flexibility within this Directive for the State to define how this would work. Note that the issue of whether an asylum seeker may have a right to work is presently pending before the Supreme Court.
- Social welfare supports: In Direct Provision, residents are deemed to have their material needs met and thus receive a small weekly allowance: The allowance of €19.10 for adults has not been updated in 17 years since its introduction in 2000. In 2016, the weekly allowance for children was increased from €9.60 to €15.60. FLAC’s analysis in 2010 showed the weekly allowances were insufficient to allow the residents to live a life of dignity. Various amendments to the social welfare code have excluded asylum seekers from basic social welfare entitlements, including Child Benefit.
5. The Working Group to Report to Government Working Group on the Protection Process on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers, chaired by Dr Bryan McMahon, issued its Final Report in June 2015, available at http://www.justice.ie/en/JELR/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf/Files/Report%20to%20Government%20on%20Improvements%20to%20the%20Protection%20Process,%20including%20Direct%20Provision%20and%20Supports%20to%20Asylum%20Seekers.pdf
This report also highlighted the issues of extended delay in processing applications and the negative effects of prolonged periods of time spent in the Direct Provision system.