Colin Lenihan is a trainee solicitor with KOD Lyons Solicitors, a leading human rights & public interest law firm who represent asylum seekers and other vulnerable migrants
Mr Justice Colm Mac Eochaidh delivered his decision in the case of C.A. and T.A v The Minister for Justice and others on Friday, 14 November 2014, a challenge to the legality of the State’s provision of material support to protection applicants in Ireland, known colloquially as 'direct provision'. This analysis is based on an unapproved copy of the judgment and the approved judgment shall be published online in due course.
The applicants, a Ugandan national and her Irish born son, sought to challenge the legality of direct provision, claiming that the negative experience of living in direct provision coupled with the prohibition on employment and social welfare was a breach of their fundamental human rights. The applicants also sought to challenge the system on the grounds that it had no legislative basis and that the payment of the weekly allowance was ultra vires social welfare legislation.
MacEochaidh J, in refusing the main grounds, found that the manner in which the application was brought before the Court, through judicial review rather than plenary summons, was ‘doomed’. The Court held that as no oral evidence was provided, the applicants failed to prove the negative effects alleged and therefore they did not reach the threshold necessary to successfully argue a breach of human rights.
The learned judge nevertheless found that certain aspects relating to the 'Reception & Integration Agency (RIA) House Rules' were incompatible with the applicant's rights under Article 8 of the European Convention of Human Rights.
The applicants argued that the invasive nature of the direct provision system was evidenced by the control exerted by RIA over housing, privacy, food and diet, freedom of movement, monitoring of individuals, social interaction, financial support and personal welfare. The applicants alleged that the RIA House Rules, especially, the daily registration requirement, the requirement to notify proposed absences from accommodation, and the unannounced searches of bedrooms without consent and the prohibition of guests in bedrooms, all breached their Article 8 right to private and family life.
MacEochaidh J, having stated that the bedrooms occupied by the applicants within direct provision could be considered to be their 'home', found that [at para 8.9]
"Article 40.5 of the Constitution which provides 'The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law' may condemn the rooms inspection regime".
MacEochaidh J also found that the monitoring of presence and absences from direct provision through recorded registration was an interference with private life and that there were less intrusive ways for staff to monitor occupancy levels. On the issue of RIA's prohibition on guests entering bedrooms in direct provision, Mac Eochaidh J stated [at para 8.12]
"the room allocated to applicants is their home and the complete ban on guests goes much further than what is required to meet the stated aims of the rule"
The Court also found that the complaints mechanism within RIA lacks independence and therefore is substantially flawed. In addressing this issue and finding a breach of fair procedures, the learned judge noted [at para 8.16]:
"it is understandable the residents sense a lack of independence in complaints handling where the final arbiter is in a commercial relationship with the body about which complaint is made: RIA is the author of the House Rules, breach of which may give rise to the complaint and it is not appropriate that RIA having written the rules and appointed persons as operators of the centre then ultimately decide on disputes between operators and residents about the rules"
The dicta of MacEochaidh J echo those of FLACand Office of the Ombudsman. In the 2009 FLAC report entitled One Size Doesn’t Fit All they argued that:
“The referral of complaints to the RIA may indicate that the process is not independent due to the contractual nature of the RIA’s relationship with the centre manager or a general manager of a number of centres” [at p.37]
The complaints mechanism within RIA has been subject to numerous concerns of applicants in its lack of independence. Up to January 2011 vexatious complaints made of the direct provision system would result in a negative impact in applicants protection applications. The ruling that an independent complaints mechanism needs to be established will bring much needed confidence to applicants to speak out about conditions/treatment within the system.
While the main grounds of the applicants challenge to the direct provision system were ultimately unsuccessful, the findings that the RIA house rules breach Article 8 of the ECHR and that there is a lack of an independent complaints mechanism are significant findings which will have a positive impact on the every day lives of those within direct provision.
This judgment, whether appealed or not, will have a profound impact on the Direct Provision Working Group’s recommendations expected at some stage next year.