Joint Committee on Justice and Equality debate -
Wednesday, 9 May 2018

Access to the Labour Market for International Protection Applicants: Discussion

Chairman

At the outset I ask members, visitors et al. to please switch off mobile phones as they interfere with the recording equipment in the committee rooms. The purpose of today's session is to discuss access to the labour market for international protection applicants and the transposition of the recast reception conditions directive. We will be joined first by representatives of the Irish Human Rights and Equality Commission and then by representatives of the Irish Refugee Council. I welcome the chief commissioner, Ms Emily Logan, who is joined by Professor Siobhán Mullally, commission member. Attending in the Gallery is Ms Jean O'Mahony, head of strategic engagement; and Mr. Walter Jayawardene, senior human rights and equality officer.

Before beginning, members should be aware that under the salient rulings of the Chair, they should not comment on criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. Witnesses are protected by absolute privilege in respect of the evidence they are to give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. I invite Ms Logan to make her opening statement.

Ms Emily Logan

My thanks to the Chair and to the members of the committee for the invitation to appear here today. I might begin by briefly referring to the relevant statutory functions of the Irish Human Rights and Equality Commission in the context of today's discussion. The commission is Ireland’s national human rights and equality body. We were established in November 2014 and enjoy full institutional independence. That means we are independent officers of the State and we account directly to the Oireachtas. Our founding legislation gives us a range of powers on a spectrum running from promotion and education activities, to significant powers to take proceedings, and to act as amicus curiae, or as adviser to the courts in superior courts in Ireland, and to initiate inquiries. I am sure members are aware that with the NHV case, the Supreme Court judgment which has given rise to the issues under discussion today, the commission was amicus and intervened in the case.

A further statutory power of the commission is to keep under review the adequacy and effectiveness of law and practice in the State and to make recommendations on measures to strengthen, protect and uphold human rights and equality in the State. It is in this context that the commission has prepared a policy position on access to the labour market for applicants for international protection, or asylum seekers, which has been circulated to members, as well as to the Minister for Justice and Equality, in advance of today’s discussion.

The question of the right to work for asylum seekers has been a priority issue for the commission since its inception. One of the commission’s first acts as the newly constituted Human Rights and Equality Commission was its December 2014 Policy Statement on the System of Direct Provision, which highlighted the severe impact that lack of access to employment has on asylum seekers and their families and recommended that asylum seekers be permitted to work through opting into the recast directive. This is an issue that has been consistently pursued by the commission over the past number of years through our legal and policy work, including our direct engagement across eight centres of direct provision in Athlone, Galway, Kerry, Cork, Limerick and Dublin.

The document I have circulated outlines some of the more complex arguments in the amicus case. As members will be aware, the Supreme Court’s judgment in the NHV case struck down as unconstitutional the absolute prohibition on access to the labour market for asylum seekers. Since the Supreme Court’s declaration in February, and in advance of opt-in to the reception conditions directive, interim measures are in place that permit asylum seekers to apply for work permits under the current law and to engage in self-employment. The combination of salary restrictions and ineligible sectors of employment applicable under these measures pose a very significant barrier to entry level employment, and in the view of the commission are insufficient in their scope to provide effective access to employment. The commission is also extremely concerned that in the absence of a means of accessing entry level or minimum wage employment, the self-employment scheme may serve to perpetuate vulnerability to labour exploitation and to discrimination in the workplace. This would be contrary to Ireland’s legal obligations to effectively protect against potential violations of equality and human rights standards.

Opting in to the directive presents an important opportunity for the State to put in place a sustainable solution to the long-running human rights and equality issue of access to employment for asylum seekers, bearing in mind that many of those seeking protection in Ireland may remain permanently in Ireland. Ensuring a right to work while seeking asylum is also critical to overcoming both direct and indirect discrimination and barriers to integration, in ensuring equality in access to employment and effective enjoyment of the human right to work and equal enjoyment of rights in the workplace. We have an obligation to put in place a framework for access to employment for asylum seekers that realises the constitutional protection of dignity of all persons, which is compatible with our international and European human rights obligations, and with our obligations under the Geneva Convention. Helpfully, the recast directive itself presents that opportunity. While the directive gives member states the power to set the conditions for access to the labour market, including the requirement to give priority to EU and European Economic Area, EEA, citizens, they must do so in a way that ensures that asylum seekers have "effective access" to the labour market. It is the view of the commission that effective access can be achieved from the outset if a number of key principles are observed.

First, restrictions on the sectors in which asylum seekers may work should be limited to the greatest possible degree, and access to employment should not be contingent on wage, salary or working time restrictions that are not generally applicable to other jobseekers. Second, any limitations that may apply should be devised with the principle of "effective access" as the primary consideration. In the interests of transparently assessing that threshold, any limitations which may apply should be based on publicly articulated and available policy criteria, which are subject to regular review. Third, discrimination has a significant effect on blocking effective access to the labour market. Effective safeguards against discrimination are therefore an essential component in the design of the provisions. A targeted information campaign for all asylum seekers on the right to work and supports available in accessing employment and while in employment will be essential.

Finally, it is an established principle of equality and human rights law that, for particularly vulnerable groups, targeted policy measures may be required to make what is a right on paper a right in reality.

The Commission, in its legal work, has been made aware of significant administrative barriers faced by asylum seekers in accessing a range of services. This includes difficulties in getting medical cards and opening bank accounts, as well as exclusion from driving licence application processes. In order to ensure effective access to employment, the commission is of the view that the scheme for access to employment must incorporate necessary processes to ensure such administrative barriers are overcome, including through the training of officials, provision of accessible information, and the tailoring of identification requirements to the particular situation of asylum seekers.

Regarding the period of time a person who had applied for asylum in Ireland would wait before being able to work, I note that the recast directive requires member states to grant access to the labour market no more than nine months from the date that application was lodged. Having considered the expert opinion of the United Nations High Commissioner for Refugees, and indeed the standards set out by the European Union elsewhere, it would be our view that Ireland should adopt what is emerging as international best practice in this area and provide for access to the labour market to be granted no later than six months after an application for asylum.

The policy choices that Ireland makes in how it opts into this directive are critical, and should be given careful consideration by the Oireachtas. These policy matters extend well beyond the question of access to employment, which we are focusing on here today. Not least, opting in to the directive will provide that the provision of material reception conditions for applicants, otherwise known as direct provision, currently provided for under the executive administrative scheme on a statutory basis, is underpinned by EU law for the first time, which is a significant development.

These policy choices could, and should, usefully be considered by this committee in advance of the statutory instrument on opt-in being signed by the Minister. It is in this spirit that we have offered our views today on how effective access to employment for applicants for international protection could be achieved.

Deputy Mick Wallace

I thank Ms Logan for her presentation. It was said that while the directive gives member states the power to set the conditions for access to the labour market, including the requirement to give priority to EU and EEA citizens, they must do so in a way that ensures that asylum seekers have effective access to the labour market. We had a fairly robust debate with the Minister; perhaps Ms Logan saw it. Does she believe the current arrangement ensures that asylum seekers have effective access to the labour market? Does she think the Minister is within his rights to have made things so difficult, considering the current, temporary arrangement?

Ms Emily Logan

We do not believe the current interim arrangement provides effective access to employment. The starting minimum salary allowable is €30,000, while the minimum wage is €9.55 per hour. The suggestion is that the entry point is €14.79 an hour. In our view that is not a legitimate entry point, especially for people who have been in direct provision for a protracted period of time and who have lost many of the skills they brought when they came to this country. Their ability to compete with others is already limited, and we see it as a significant barrier. The current situation is not legitimately presented as effective access. Last week, the Irish Nurses and Midwifery Organisation, INMO, argued about the fact that the entry point for nurses was €28,000. For refugees the entry point is a job paying €30,000, plus the payment of a €1,000 fee. We certainly do not support the interim scheme, as it stands, as being an effective policy approach to access to the labour market.

Deputy Mick Wallace

Does the commission have an opinion on whether the Government could be leaving itself open to a legal challenge given the position it has taken?

Professor Siobhán Mullally

The interim scheme does not provide effective access because of the barriers that are put in place. It could be interpreted as indirect discrimination; these are not requirements which are generally applicable to all job seekers. They create barriers that limit access, in many ways. The access to self-employment leaves open the possibility of exploitation and vulnerability in the workplace. All of this contributes to our view that it does not represent effective access, as required.

Deputy Mick Wallace

Is the Government open to legal challenge?

Ms Emily Logan

It is legitimate for the executive to seek to determine where it stands from a policy point of view. How that policy is determined is an executive decision. Our role as an independent body is to analyse what that means in terms of meeting human rights and equality standards. We do not believe we have a fair or just system, especially for the cohort we are talking about. We have heard from the Minister about other refugees and other resettlement programmes where people are allowed access to work. We are specifically talking about a cohort that has already been excluded from the labour market for a number of years, so they already face a particular difficulty. There is a well established principle in international human rights law that equal treatment is not about treating everybody the same and that it is legitimate to point out that particular groups have particular problems and face significant barriers. It is, therefore, legitimate to put certain policy positions in place to ensure that group is treated equally.

Professor Siobhán Mullally

Given the restrictions that have been put in place by way of the interim measures which limit effective access to such a large cohort of asylum seekers, there is clearly the possibility of a legal challenge. On paper, it is effective access, but in practice it could be interpreted as being theoretical or illusory. It is not effective in practice. The restrictions are very broad, wide-ranging, and really limit access for so many people. In terms of implementing the Supreme Court judgment, it is not reaching the threshold of effectiveness.

Deputy Mick Wallace

The point was made that it is essential that a good understanding of the labour market profile of asylum seekers underpins support structures. I believe that is a good point. Ms Logan said that significant administrative barriers faced by asylum seekers in accessing a range of services must be dealt with by ensuring that such administrative barriers are overcome, including through training of officials, provision of accessible information, and the tailoring of identification requirements for the particular situation of asylum seekers. Along with my first point about the unfairness of the current arrangement, the witnesses have also made strong points. Have the points been put to the Government? Has it responded?

Ms Emily Logan

We have put those points to the Government. To be fair to the Minister for Justice and Equality, Deputy Flanagan, we were due to have a meeting last Wednesday week but it clashed with the Domestic Violence Bill 2017. We are waiting to have an interaction with the Government, but it certainly knows our policy position on this issue.

Deputy Mick Wallace

Do the witnesses find that when they put their ideas and plans to the Government that it is receptive?

Ms Emily Logan

The difficulty is that the transposition of the directive can be done by statutory instrument, and because it is not primary legislation it does not go through the normal route, which is why we are asking the committee, as it has done, to pay attention to this matter. To be honest, we are seeking assistance on this issue. We have not had sight of the statutory instrument. I understand that civil society groups have not had sight of it either. It is really critical that all interested parties get on board. We are talking about very basic things, including a Garda National Immigration Bureau card or a card from the International Protection Office. At the bottom of the most recent cards that have been issued it is stated that they are not a valid form of identification. If a person is going for a job requiring a driver's licence, his or her ability to enter the employment market is impeded. They are also not able to open bank accounts with those cards. These are simple things that many of us take for granted, but they are very real barriers for people entering the employment market.

Deputy Jim O'Callaghan

I thank the witnesses for appearing before the committee and commend them for intervening in the NHV case. It was an important thing to do. I believe the Irish Human Rights and Equality Commission should stick its nose into big cases like that in the future.

This directive is to be transposed into Irish law by way of secondary legislation.

I know that is common for most directives. Would Ms Logan have any concerns about that? All that will happen is that the Minister will lay the statutory instrument before the Dáil. Members have the power to pass a motion seeking to set it aside but that has never happened previously. We do not have any real involvement in it by way of legislation. Does Ms Logan have any concerns?

Ms Emily Logan

As a lawyer, Deputy O'Callaghan would be very familiar with Mr. Gerard Hogan's work on the use of statutory instruments by Departments. It is outside of the normal cut and thrust of political debate which is a worry when one is dealing with such a significant policy issue. That is the way things are, however. We are here appealing to the Members, from a policy point of view, to pay attention to it but, of course, there is a legitimacy for statutory instruments to be run through the Executive and not through the Oireachtas.

Deputy Jim O'Callaghan

It makes our task here very difficult because-----

Ms Emily Logan

We appreciate that.

Deputy Jim O'Callaghan

Although it is legislation and it is law, we have no real involvement in it. We get to see it for the first time at the same time as Ms Logan. The capacity to retrospectively disapprove of secondary legislation has never really been engaged.

Ms Emily Logan

We are very aware of our accountability to the Oireachtas. We are here today to say to this committee that as a national institution, we have been working on this for three and a half years. We first set out our stall in December 2014. We gave our views on the International Protection Bill 2015 as it was going through the Oireachtas and circulated that to all members of the Oireachtas on 5 July 2015. We intervened in the NHV case in the Supreme Court. We have been working on this for the past three and a half years. We have made our position clear and have not changed our position at all. We are struggling in terms of where we go next because we have been to the highest authorities, that is, the Parliament and the Supreme Court. While I appreciate that what Deputy O'Callaghan is saying is absolutely legitimate, in terms of where statutory instruments are written and how they are dealt with vis-à-vis the Oireachtas, we are also very aware of our accountability to Members of the Oireachtas. We want to tell Members that we are concerned about this very significant policy action being taken by the Executive.

Deputy Jim O'Callaghan

Does the commission believe that the interim measure that has been put in place by the Government provides effective access?

Ms Emily Logan

No, we do not.

Deputy Jim O'Callaghan

One of the examples of not having effective access mentioned by Ms Logan is the restrictions on the sectors in which asylum seekers may work. I ask her to elaborate on that. What is the commission's concern with regard to restrictions on sectors that may be applied in the statutory instrument?

Professor Siobhán Mullally

At the moment, we do not know what that might look like but any such restrictions would add to the barriers to people seeking employment. People come with a range of different skills. The labour market tends to look after itself in the sense that if there is work available, people will be able to find employment. We do not see it as a necessary or proportionate restriction. To ensure that people have effective access, it would be preferable to have that as open as possible. The key point is that we see this as being critical to the long-term integration of refugees, to their inclusion in Irish society and to combatting the very serious risk of labour exploitation. If people are restricted in terms of the kinds of employment that they can seek and are being pushed into self employment, that poses a very serious risk of labour exploitation and trafficking for the purposes of same, with asylum seekers being targeted for that purpose. In order to reduce that vulnerability, we would argue that we need to ensure effective and open access to the labour market. Ultimately, the labour market will look after itself. People come with different skills and can make a contribution and as we know, that is critical to their long-term integration into Irish society.

Deputy Jim O'Callaghan

Are there examples in other countries of asylum seekers being precluded from seeking access to certain sectors?

Ms Emily Logan

Yes, that is part of the UK scheme. There are restrictions related to occupational shortages in designated areas.

Deputy Jim O'Callaghan

Asylum seekers are told they can only look for work in certain areas and not in other areas. Is that correct?

Ms Emily Logan

Yes.

Deputy Jim O'Callaghan

What are the barriers to asylum seekers starting up in self employment, apart from money? What are the State barriers?

Ms Emily Logan

As mentioned already and as referred to in our policy document, issues that make it difficult for asylum seekers to access services include the lack of a driving licence or other forms of valid identification documentation and the lack of a bank account. These are very serious barriers to self employment. There are also more practical, everyday things like networks, establishing links with communities and being able to know how to set oneself up, which pose difficulties. Longer term we see being pushed into self employment as very much a risk factor in terms of exploitation.

Deputy Jim O'Callaghan

Has any one done any surveys of the skill sets that exist among asylum seekers at present? If not, would that be a worthwhile process?

Ms Emily Logan

We have included that in our statement. As far as we know, there has not been any research or work done on the skill set of the cohort of asylum seeks to which we are referring in order to help them to transition. That is a legitimate piece of work that needs to be done in order to understand what kind of help people need. The State, as primary duty bearer, has made a decision for the past 18 years to warehouse people in direct provision so it is legitimate that it would accept the responsibility for transitioning and assisting people out of the system.

Deputy Jim O'Callaghan

Finally, does the commission regard effective access as including access to education and training in order for people to qualify to work?

Ms Emily Logan

We do, of course. We are focusing on the right to work at the moment but the directive has much broader implications for both health and education. In this context, we are talking about access in the same way as we would talk about it for jobseekers generally, in terms of the supports available to them in Ireland.

Chairman

Deputy Jack Chambers is next.

Deputy Jack Chambers

I thank both witnesses for coming before the committee today. To follow on from Deputy O'Callaghan's questions, how would the witnesses construct a scheme? A lot of the commission's statement and submission deals with the restrictions in terms of how the Government has set about transposing the directive and I agree with the commission's views in that regard. I ask the witnesses to set out a model of how they would like to see this implemented and to give us examples of places where it has been implemented properly and effectively. I ask them to outline how far it has gone elsewhere so that we can understand it better. I have only browsed through the statement but the thrust of it is that the Government's response is insufficient in scope and does not provide effective or meaningful access. I ask the witnesses to set out exactly how far it wants the Government to go and how it should go about it.

Ms Emily Logan

We have a mandated role in terms of our statutory function so there is only so far we can go. I will ask Professor Mullally to give the Deputy some sense of the international standard to which we are referring.

Professor Siobhán Mullally

Our policy document, our submission and our statement all make a number of points around that. Drawing on emerging standards elsewhere and on UNHCR guidance, one basic recommendation is that applicants for international protection be granted access to the labour market not later than six months after the date of lodging an application. Again, as we said in our opening statement, any restrictions in relation to sectors should be as limited as possible. Another recommendation would be the removal of the threshold in terms of the income requirements that are currently in place to ensure that there would also be access to entry level employment in order to open up access to employment as widely as possible. There is also a need to address the administrative barriers around identification cards, access to driving licences and bank accounts as well as access to vocational training. We have set out all of those recommendations in our policy submission.

Deputy Jack Chambers

What restrictions, if any, would the commission want to see applied? Would it want asylum seekers to be given every opportunity in terms of healthcare, education, work and to see the removal all of the administrative barriers in order to facilitate people as much as possible? The commission is coming at this issue from the polar opposite position of the Department. How can the Department give effective access? What restrictions could potentially apply or should there be no restrictions in any context? I am trying to get a sense of the practical implementation of this.

Ms Emily Logan

Obviously our role is to seek the best protection possible but at the moment, the way the interim scheme is run means that people cannot even enter into it. Asylum seekers have to get themselves a job to the value of €30,000 per year but lots of skilled employment would fall below that threshold.

We are advocating the opening up of the market so people can legitimately enter it without the restrictions. It is restricted to the extent that it is not viable.

Deputy Jack Chambers

It is impossible.

Ms Emily Logan

Yes.

Deputy Jack Chambers

Does Ms Logan believe that when the statutory instrument is brought forward, it will be as restrictive as the current arrangement? What will be the legal context if there is no effective access, as referred to by the court?

Ms Emily Logan

There are two points that strike me when the Deputy asks that question. First, I am conscious that the Minister, Deputy Charlie Flanagan, has said the final scheme will be more generous, which we would welcome. Second, data are being put into the public domain that suggest an increase in the number of refugees coming to Ireland. This distorts the public's understanding of what is going on and what has been described by the Department of Justice and Equality as the "pull factor". We have examined the international research in this regard, the most recent of which has been done in the University of Warwick and was published in March 2016. The researchers examined the period 1997 to 2016. They considered 11 pieces of research and 18 pieces of quantitative research that account for the data on why people go to a country of destination. It is important that people understand it is not correct that employment will create a pull factor. The research found no direct long-term correlation between access to the labour market and people's decision to go to a country. It is much more complex than that. They come for family and linguistic reasons. The third reason is whether the destination country has respect for human rights and the rule of law. There may be colonial connections. There are very complex reasons for people coming. It is important for our political leaders not to put out messages suggesting that allowing refugees to work in this country will mean the floodgates will be opened to many.

Deputy Jack Chambers

Have political leaders said that?

Ms Emily Logan

There have been reported comments in the media suggesting there are some concerns over the implications of more people coming to Ireland.

Deputy Jack Chambers

I was not aware of any political leader saying it.

As Deputy Jim O'Callaghan said, the committee will have a limited role in regard to the statutory instrument but I hope that by giving Ms Emily Logan a hearing today, there will be a generous transposition so people will be given appropriate access and an effective right to work. As the commission said, if their rights are undermined, their ability to integrate and live a proper life here in the longer term will be constrained.

I thank the delegation again for attending.

Deputy Clare Daly

I thank Ms Logan for attending. We do not have many questions. When the Irish Human Rights and Equality Commission requested an audience today, the committee was struck by the fact that it never asked for this before. In fulfilling its statutory function, the commission believed it was sufficiently important to put some of these points on record. I have not heard them in any other scenario. The committee felt it was critical to have the points put on record, obviously before the statutory instrument is signed in because it would be a bit late afterwards. In that context, we probably have to sound the alarm bells on the public record. Much of what the commission said was said by us when we had the Department of Justice and Equality representatives here. Collectively, on both sides of the table, we now have to say a lot of time has passed since. It is a question of what happened in that time.

My first question, given that the commission has a statutory role and has requested an audience on this, is whether the commission would normally meet the Department on this. Ms Logan said there was a clashing commitment, which is fair enough, but is the delay normal? Has the commission had as much engagement on this issue as it normally would? Is this a little different?

Ms Emily Logan

I do not have any particular sense that it is different. It is more that we are well aware of this committee's commitment to, and interest in, the area. We just want to make sure we are communicating and accounting to it and that it understands our concerns. We are trying to use every part we can in terms of expressing our views and putting them on the record.

Deputy Clare Daly

The commission's statement is very strong. It spelled out that ensuring effective access for asylum seekers is an obligation under the Act and that the interim programme is not delivering. It said it is extremely concerned that effective access is being denied and that there are significant barriers. These are very strong statements. The commission does not support the interim scheme. Why is the scheme so restrictive? What is the indication that the new scheme will be dramatically different? It was said it will be a bit better and a bit more generous, but it would be hard to be worse.

I just do not understand the Government's position on this. There needs to be such a big change from the interim scheme to what would be acceptable in terms of human rights. I refer to the basic criteria that we have a long way to go to achieve. My questions are probably unfair because the delegates cannot know what is in the mind of the Government but-----

Ms Emily Logan

There is an intergovernmental group considering this; it is not just the Department of Justice and Equality. Also involved are the Department of Finance, the Department of Public Expenditure and Reform and the Department of Business, Enterprise and Innovation. Therefore, the very make-up of the committee indicates the breadth of the considerations of the Government in signing up to or opting in into the directive. It is not only a matter of human rights and equality in the Department of Justice and Equality; it is across Departments. That is worthwhile bearing in mind.

We have a statutory function to comment on legislation. Sometimes draft legislation is sent to us formally. We have a formal meeting with the Department of Justice and Equality twice per year. Its representatives let us know what legislation is coming up that has implications for human rights and equality. The Department has always been very open about that. However, it is a little like what Deputy Jim O'Callaghan said in that when one gets into secondary legislation below the level of primary legislation, where statutory instruments come into play, the Executive has been allowed to introduce the measure legitimately. This makes it a little more difficult for us to penetrate that space.

Deputy Clare Daly

Given that the Supreme Court has struck down the prohibition, is there a possibility of legal action at present on the interim scheme given that it is not enabling effective access?

Ms Emily Logan

I understand it is because the Government has indicated there is a four-month window. It has to opt in to the directive by June. I do not know whether it is the end or beginning of June but that is the month by which the Government has to sign up to the directive. I do not envisage that there would be legal cases within the space of 16 weeks.

Deputy Clare Daly

It is a legal requirement to opt in by the end of June. There has been no official meeting with the commission and we are none the wiser ourselves as to how different the final scheme will be from the interim scheme. The clock is ticking on this. I do not want to put words in the mouth of Ms Logan but I believe she is saying that unless the final scheme is dramatically different from what we have in terms of the barriers, the Government will be leaving itself open to legal challenges. Is that accurate?

Ms Emily Logan

We are coming at it with human rights and equality implications in mind more than the legal challenge. Professor Mullally mentioned all the long-term positives associated with financial independence. We are creating dependency on the State among a group who do not want to be dependent on the State. We are setting ourselves up for a difficulty in terms of integration in the future. Therefore, we are examining the long-term implications of people not having access to the labour market more than we would examine the implications for legal challenge.

Deputy Clare Daly

We would also but, unfortunately, the attitude of the Department of Justice and Equality does not always come across to us as adhering to human rights. One gets a better hearing from the Department if one says that if it does not do something it will cost money, rather than appealing to its better nature, of which we have not seen much evidence. The stick can often be better in dealing with the Department of Justice than the moral argument.

Morality has been absolutely absent in our treatment of asylum seekers. I do not think it will change now at the 11th hour.

On the self-employed issue, is it the case that the barrier that is there now of keeping the wage ceiling at €30,000, which is ridiculous, leaves people open to bogus self-employment and to the potential of being employed in jobs that are not minimum wage but are below the minimum wage? Is that the possibility the witnesses are talking about?

Professor Siobhán Mullally

It is recognised there is a very serious risk of exploitation arising from pushing people into precarious forms of employment like this. Longer term, we have to look at what will happen in the workplace and what will happen with regard to any kind of self-employment. There are risks of labour exploitation and abuse and people being targeted by criminal networks for trafficking for the purpose of labour exploitation. Asylum seekers are targeted across Europe for that. If we are setting up a scheme that further entrenches those kinds of risks, it is absolutely essential there is effective access to the labour market and that people are not pushed into self-employment because there is not any other kind of effective access.

Deputy Clare Daly

We agree. We felt it was important it is on the public record. If anything gets signed in that does not take these points on board, it would be very regrettable. It is important that the witnesses have come in and put these points on the record.

Deputy Donnchadh Ó Laoghaire

I welcome Ms Logan and Professor Mullally. I attended some of Professor Mullally's human rights lectures some years ago and it is good to meet her again. Many of the questions have been asked. It is hard not to be sceptical of the Department of Justice and Equality on this issue. There has been an attempt to present this as a progressive step by the Department of Justice and Equality. It has been dragged kicking and screaming to this position. It had to be brought to the Supreme Court after years of arguing against a comprehensive plan on the right to work.

I agree in principle with everything that has been outlined in the document the witnesses prepared for us and the Department. I agree with the point made about six months without exception.

In terms of potential responses by the Department, my instinct is there should not be any sectoral restrictions. Have there been arguments other than on the basis of gaps in the labour market? It is wrong to approach the issue of people's right to work by considering gaps in the labour market that can be filled. The focus should very much be on the right of the person who is seeking asylum and his or her dignity and right to work. In the witnesses' view are there any legitimate restrictions on sectors or employments that Governments here or elsewhere have asked for that should be considered?

Professor Siobhán Mullally

In the recommendations we are making we recognise the possibility of a restriction in terms of a time limit of six months. After that, any restrictions on occupational areas or particular job sectors, as the chief commissioner said in the opening statement - it is also in the policy document - should be as transparent and as limited as possible. We advocate the importance of a skills profile of asylum seekers who are here and access to vocational training to ensure people can transition into employment and in the longer term to think about inclusion in the workplace. If there are to be any restrictions on occupational areas, we would argue they should be as limited as possible and there should be a transparent debate around it. It is not clear it is necessary to protect the job market. Already, those who come seeking protection in Ireland and elsewhere are very vulnerable. They will already face barriers in terms of transitioning to new communities and will have a time limit of some sort placed on them. We do not see it as being essential from the perspective of the State but if there are to be any restrictions, they should be transparent. There should be open and public debate around them and they should be as limited as possible.

Deputy Donnchadh Ó Laoghaire

To frame it another way, I do not think protecting the labour market should be the focus. Are there any other considerations that Government might put forward for restrictions outside of protecting the labour market sectorally and not in terms of time?

Ms Emily Logan

In terms of particular sectors if there is no employment available, people will not find employment in those areas in any case. People's skills may not meet those required. We suggest the committee looks at other ways of accessing other kinds of employment and ensuring access to vocational training and education. There are many barriers currently in place that limit those.

Deputy Donnchadh Ó Laoghaire

It is beyond the scope of any statutory instrument or legislation. The Supreme Court decision struck down the absolute ban on the right of asylum seekers to work but my understanding is - I have not read it in its totality - it was not entirely unequivocal in terms of the right to work of asylum seekers. Is it an area the witnesses have a concern about? It is interpreting directives and Irish legislation and so on but is there a basis, on foot of the Supreme Court decision, for Ireland to put in place further primary legislation to ensure a more comprehensive right to work or should we just simply focus on transposing the directive at this point in time?

Professor Siobhán Mullally

Transposition of the directive gives an opportunity for minimum standards to be put in place and a more open and public debate around reception conditions. The Supreme Court judgment is limited in that it struck down the absolute prohibition on the right to work. It does not address, more broadly, questions around integration, inclusion, combatting discrimination in the workplace and access to education. It is a much broader debate that needs to take place with regard to reception conditions and moving beyond the limits of the current direct provision system but also the barriers in access to education that impact not only asylum seekers but recognised refugees because of requirements like habitual residence. There is a much broader debate that has to take place and the Supreme Court judgment is just a starting point but it is an important one. Opting into the Reception Conditions Directive will open up the possibility of more public engagement and political debate on broader questions around reception.

Deputy Donnchadh Ó Laoghaire

The question has already been asked by Deputy Daly. On the issue of the number of people who find themselves self-employed, which is a legitimate and reasonable choice for many people and could work for many people, anecdotally I have come across people from a wide range of backgrounds, not only migrant or asylum seeker backgrounds, and there is a very significant issue with regard to the exploitation of people through bogus self-employment. There is an issue with unscrupulous employers forcing people to register as self-employed even though they are being given specific tasks and essentially being paid directly by the employer. It is something we come across frequently for the purpose of tax and other reasons and in the case of asylum seekers it is very likely to avoid a number of legal obligations. It is a very real risk particularly when the threshold is being set so high to try to get a work permit. It is a threshold many people who are Irish citizens would probably struggle to reach - to find €1,000 and ensure there is a job offer with €30,000 in pay. It is a very high threshold. I am not necessarily looking for a response although the witnesses can offer one if they wish. I add my voice to that of Deputy Daly. There is a very real risk of exploitation of people through the use of bogus self-employment.

I am conscious we are dealing with a specific issue in this discussion but this committee and, I am sure, the witnesses are very concerned about the human rights implications of asylum policy and direct provision in general. Regarding the directive, when we had the Minister here, the general indication we received is that this was essentially the only area of policy that requires further legislation - or primary or second legislation - to ensure the directive is transposed. Is that the witnesses' understanding? Does the Government need to do anything else, legislatively or practically, to ensure the directive is transposed?

Professor Siobhán Mullally

The reception conditions directive sets minimum standards and the Irish Human Rights and Equality Commission has already issued policy statements on, for example, direct provision and other policy issues regarding health, mental health and access to education. Those are all areas the commission has said require significant reform, policy and legislative measures to address, in particular, regarding barriers to education and the long-term mental health and health impacts of direct provision on people including, in particular, families with children. We have made a number of statements. We published a policy document on that in the past, and that is an area on which we have continued to work. We would certainly see those as being areas in need of further reform and further measures to improve the reception conditions of people seeking protection in Ireland. All of that is on record and publicly available.

Ms Emily Logan

They do not necessarily require primary legislation. They are more at policy level.

Deputy Donnchadh Ó Laoghaire

To put it in a slightly different way, if the Government was to legislate for the right to work in an effective way in a few months, and I would have doubts about that, would Ireland be legally compliant with the directive in every other respect? The spirit of the directive is perhaps a different matter but, legally, would we be in compliance with the directive if the effective right to work was dealt with?

Professor Siobhán Mullally

We will have to wait and see what happens around access to employment and the provisions being made around that. We have already said there are a number of other related areas that could continue to act as barriers, for example, the provision of identification documents and all of that. Otherwise, there are particular factual scenarios that can always arise regarding health, mental health and the positions of families and children. We would continue to have concerns about that but we are already on record regarding our positions on those broader areas.

Deputy Donnchadh Ó Laoghaire

To touch briefly on one of those points, the Irish Refugee Council raised previously the difficulty some asylum seekers have on readmission to direct provision centres. That would be related to the directive. They may be people who may have sought asylum without being in a direct provision centre or who are re-entering having lived somewhere else because they have no place else to go. As they do not have access to social housing, it would be difficult for them to access all the supports that local authorities and the homeless executive provide. Is that an issue the witnesses have identified and spoken about previously? Is that an issue in the context of the directive?

Professor Siobhán Mullally

That raises questions regarding the obligation on the State to prevent destitution and ensure people are provided with accommodation. We have commented in the past, for example, on questions about people being moved, punitive measures being imposed on asylum seekers and situations arising such as those the Deputy mentioned. Those issues have come up in the past. They would raise questions for the State as a duty bearer to avoid destitution and ensure appropriate reception conditions are in place for all of those seeking protection.

Deputy Donnchadh Ó Laoghaire

In terms of an effective barrier to work outside the legislative issues, an example was given of the Garda National Immigration Bureau, GNIB, card, which I understand the witnesses said is not a legal form of identification having regard to what is printed on that card. What is best way around that? Should the GNIB card be made a formal form of identification, or are there other forms of identification that could easier be made available to people who might be seeking employment. What is the best way around that?

Ms Emily Logan

That is probably a role for the Department of Justice and Equality to determine. We are just making the point that the current documentation provided to people is not reaching a threshold where it is considered valid documentation to access, for example, a bank account or a driving licence. Those issues, which appear minor, are, administratively, a huge barrier for people on the ground, and they could very easily be resolved.

Deputy Donnchadh Ó Laoghaire

Could Ms Logan briefly give two or three more examples of practical issues, aside from the financial element, that create obstacles?

Ms Emily Logan

We have enumerated a number of those. One relates to the interim arrangement. All the restrictions - the fee of €1,000 required upfront, access to employment or that one must have a job with a starting minimum salary allowable of €30,000, not having a banking account and not being able to have a driving licence - create barriers for people.

Deputy Donnchadh Ó Laoghaire

I have a final point, which follows on from a question posed by other members. On the basis of the witnesses' comments regarding the Department of Justice and Equality's concern about the possibility of a pull factor in terms of the directive, is it fair to say that is misplaced and overestimated?

Professor Siobhán Mullally

The chief commissioner has already said it is not her view that it is a pull factor, and research and evidence from elsewhere supports that. The chief commissioner made reference to the studies from the University of Warwick, which took place from 1997 through to 2016, where employment and access to it are not identified as a pull factor. Other reasons people might try to reach a particular location - those seeking protection often do not have those kinds of choices - are related to family and community links, language questions, respect for human rights and rule of law and perhaps colonial ties between one country and another. All the research consistently points to the reasons people might arrive in one destination rather than another are often linked to family and community networks, rather than specifically access to the labour market. There is not research or evidence supporting that. The University of Warwick studies are available. As the chief commissioner said, they are quantitative and qualitative, and have been ongoing since 1997. They identify other factors people might arrive in a particular destination, but we are talking about people who are seeking protection, who already have had significant difficulties in trying to leave their country and arrive in any destination because of the kinds of travel restrictions in place. They do not have those kinds of choices, but there is no evidence that access to the labour market is something that leads to an increase in asylum seekers.

Deputy Donnchadh Ó Laoghaire

Very good.

Chairman

Has the Deputy concluded?

Deputy Donnchadh Ó Laoghaire

Yes. I thank the witnesses.

Chairman

I would like to make a few comments. I absolutely concur with the position the witnesses articulated regarding the salary restrictions, which are bizarre. I have always held that view. The matter of the ineligible sectors of employment is very restrictive, particularly when we consider the location of a number of direct provision centres. Because of one's location, other restrictions automatically kick in. I live in a community that hosts a direct provision centre. I can see the practical difficulties of anyone accessing opportunities on the terms laid down in this interim arrangement. Since the introduction of the intervening arrangements, from the witnesses' experience has the issue of location presented? They outlined a number of other administrative barriers and referenced them in response to questions posed by my colleague, Deputy Ó Laoghaire. From their experience and awareness of the difficulties, has the issue of location featured?

The limitations in terms of access are more acute in rural locations than they might be in, say, Dublin city. Could the witnesses comment on that?

Ms Emily Logan

We have not yet had anybody bring that to our attention but it is a valid question. It is also possibly a valid barrier for people. The nature of that has not come to our attention in our role, probably because in terms of offering people legal assistance, our threshold is set at a legal threshold which is slightly higher. It is an administrative law or legal space. It may be possible that our colleagues in civil society might have different experiences or might be able to give the committee on-the-ground experience of that. However, people come to us mainly at the level of administrative law and that is where issues such as documentation that supports driver's licences, for example, matter.

Professor Siobhán Mullally

The question of location and access to services is a serious challenge for asylum seekers outside Dublin. Even in cities such as Galway, if asylum seekers seek access to legal information, they are sent to Dublin because such limited resources are available. Outside the metropolitan areas, it is even more challenging and difficult. Given the limited access to information and the absence of a proactive outreach programme to support people transitioning to employment, there will be an increased risk of exploitation and barriers to accessing employment. We know that already in terms of access to any services.

Chairman

Historically, there have been difficulties arranging relocation. I have dealt with cases on a number of occasions. The chief commissioner recently visited County Monaghan and I was happy to note her kind words, which were earned and deserved..

Ms Emily Logan

Monaghan is the first sanctuary.

Deputy Mick Wallace

The Irish Refugee Council, IRC, is calling for unrestricted access to work after six months. Does the chief commissioner agree?

Ms Emily Logan

We have set a similar standard, which is the standard that is emerging according to international best practice.

Deputy Mick Wallace

Is access totally unrestricted?

Ms Emily Logan

Aspirationally, but recognising that the directive gives states a margin of appreciation in respect of how they implement it.

Chairman

On behalf of the committee, I thank Ms Logan and Professor Mullally for their presentation and for joining us to address these important matters.

Sitting suspended at 10.44 a.m. and resumed at 10.45 a.m.

Chairman

I welcome Mr. Nick Henderson, the chief executive officer of the IRC, and he is joined by Ms Rosemary Hennigan, policy and advocacy officer.

Witnesses are protected by absolute privilege in respect of the evidence they are to give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. I invite Mr. Henderson to make his opening statement.

Mr. Nick Henderson

I am grateful for the opportunity to brief the committee. The transposition of the reception conditions directive, RCD, marks for the first time how we treat asylum seekers when they come to Ireland will be set down in law, which we welcome. We also welcome the committee’s engagement on the issue. As of March 2018, 5,318 people were living in direct provision and the issue, therefore, affects many people. Transposition will be by way of statutory instrument. We previously recommended that this be done by way of primary legislation. Statutory instrument reduces the opportunity for Oireachtas scrutiny of this important issue, while there has been no civil society opportunity for meaningful input into drafting of the statutory instrument. We have requested several meetings with Department of Justice and Equality officials to discuss the contents of the statutory instrument but have been unsuccessful in doing so.

The directive provides for how we treat people in a wide range of ways and not just in the context of the right to work. It contains provisions relating to detention, vulnerability, education, health and the withdrawal of reception conditions. The committee is not entirely toothless in respect of the use of statutory instruments. It could consider, for example, the recommendation of the Joint Committee on European Affairs of the previous Dáil. The committee produced a report in April 2014 regarding the assessment of current structures for Oireachtas scrutiny of EU affairs. The 17th recommendation in the report is that "draft statutory instruments together with an explanatory note be circulated to the relevant committee one month before they are signed". That is something the committee could consider.

I would like to mention three issues, the first of which is access to the labour market. Last May, the Supreme Court recognised that people awaiting an asylum decision had a constitutional right to work. As the chief commissioner of the IHREC said earlier, article 15 of the directive requires that member states must allow for effective access to the labour market. Unless access is effective, the right recognised by the Supreme Court on 31 May last year will be rendered illusory. The temporary scheme has been much criticised by a wide spectrum of organisations, including ourselves. Its restrictive nature is reflected in the fact that as of 1 May, according to a reply by the Minister for Justice and Equality to a parliamentary question tabled by Deputy Ó Laoghaire, there had only been one application for a work permit.

That is not a decision; it is just a single application. There have been 368 successful applications for self-employment granted . This is positive in that it reflects the intention to work, to integrate and to use the skills they have and the experiences of people who are waiting for asylum decisions. As has been remarked by this committee, however, there are issues regarding the precarious nature of self-employment.

Fundamentally, the work permit process is not designed for asylum seekers. The work permit process is designed to protect the Irish labour market. It is designed to identify gaps in the latter and then bring people in from elsewhere to fill those gaps. The work permit process is entirely inappropriate for people seeking asylum. A much more generous scheme is required. The Minister, Deputy Flanagan has said - and the Chief Commissioner of the Irish Human Rights and Equality Commission recognises - that when Ireland finally opts into the directive, the provisions will be more generous. However, we have no more information than that. We understand that there will be a nine-month timeframe but there will continue to be some sort of restricted professions. When the Minister was before the committee in January, he informed Deputy Clare Daly that he would make provision for a review - or, at least, that a final review would be done in April - and that he would supply its findings to the committee. Perhaps this could be followed up. The review could look at labour market gaps of some sort.

It is problematic that there seems to be an approach within the Department to tie Ireland's policy to that of the United Kingdom. The latter has a very restrictive approach to the right to work; it is only available to people who have waited for 12 months and then they are restricted to applying for a particularly small number of niche jobs on what is known as the shortage occupation list. We deem this to be problematic, especially in anticipation of Brexit, as two policies diverge.

The Irish Refugee Council calls for the right to work for people who have waited six months, with no restrictions as to the professions they can pursue. This provision should be immediately available to those who have already waited six months. This is against the background of long delays in Ireland's asylum procedure. It is estimated that if a person's case is not prioritised, he or she could be waiting at least 19 months just for an initial interview on the application.

We are also calling for a review of the barriers that make it difficult to access the labour market. These include: difficulties obtaining driving licences; opening bank accounts; and accessing housing. In our experience, these barriers exist for people who may have status and who are trying to transition out of direct provision and for those in direct provision who would like to work but who face these difficult problems.

I shall now turn to the issue of the withdrawal of reception conditions. Article 20 of the directive provides that a member state may reduce or withdraw reception conditions but requires that under no circumstances may a person be left in a state of destitution. This is very topical to our work at the moment. Since July of last year, we have worked with 30 people who have had difficulty accessing direct provision accommodation. This difficulty arises when, for example, a person applies for asylum in Ireland but does not enter direct provision or is in direct provision and then leaves it. People face difficulties re-entering the direct provision system to the point where we have worked with individuals who have been homeless or at risk of homelessness. This is very troubling. It is also in the context of existing homelessness services that are stretched. An additional problem arises because when a person is not in direct provision, he or she is not entitled to the allowance of €21.60 per week. Not only is the person without State-provided accommodation, he or she is also without an allowance. This is of major concern to us.

The Irish Refugee Council calls for Ireland to rule out any situation whereby somebody in need of basic subsistence may be subject to a complete withdrawal of reception conditions. Any decision regarding the withdrawal of reception conditions must be individual and it must recognise, as the directive does, that everybody is entitled to a dignified standard of living. Crucially - and this is where Ireland's policy and procedure will be required to change - the directive requires that a person has the right of appeal against the withdrawal of reception conditions. If a person is told that he or she is not entitled to live in direct provision accommodation, under the directive, he or she would theoretically have the right of appeal. This measure does not exist under current practice or procedure and it requires change.

The third and final issue that requires quite significant change from existing policy and procedure is the vulnerability assessment required under the directive. Currently, beyond a basic health screening provided to applicants who choose to avail of direct provision, there is no multidisciplinary assessment of vulnerability of the special needs of people seeking asylum. This is an important point. Early and ongoing identification of vulnerability is important, not just to ensure humane living conditions but also to ensure that applicants are supported in engaging with the asylum procedure. Vulnerability identification leads to better quality decision-making and can reduce delays that are prevalent in the Irish asylum system. For this to happen, there needs to be training, guidelines and robust systems that can work to identify vulnerability. It also needs to be cross-departmental to include the Department of Health and the HSE. This must be set out clearly. We are slightly concerned that the statutory instrument has the potential to not detail in full how a vulnerability identification mechanism would actually work.

It is important to say that the reception conditions directive provides member states with a wide degree of latitude in transposition and implementation of the legislation. Article 4 of the directive says that member states may introduce more favourable measures. In other words, the directive is a floor rather than a ceiling, and we will work towards ensuring this. The Irish Refugee Council is ready to work with its partner organisations in civil society, with this committee and with the Department of Justice and Equality on how the directive is designed - so far we have been relatively unsuccessful in that regard - and, crucially, on how it will be implemented. The directive contains a broad range of provisions, the working of which will only be identified when they are rolled out in practice.

I thank the committee and I welcome any questions that members may have. I reiterate that there is a recommendation from the European Union Affairs committee, and an opportunity for this committee if it wished, to request the statutory instrument from the Department. It could be provided in that way.

Chairman

I thank Mr. Henderson. I appreciate the circulation of the text of his contribution and his address. I will call members as they have indicated. Deputy Clare Daly is first.

Deputy Clare Daly

I will be brief. This situation is peculiar in some ways. Everyone agrees with the witnesses that the methods chosen by the Department and the Government in the interim are entirely inappropriate. In effect, they got around the Supreme Court judgment and, de facto, made it impossible for asylum seekers to work. We agree with all of the points made. I will not repeat them or seek conformation for aspects in respect of which we already agree.

Mr. Henderson referred to this being the first occasion on which how we treat asylum seekers is being set down in law. That is an important point.

He seems to be saying - in fairness, the Irish Human Rights and Equality Commission said it as well - that given the importance of that and its historic nature, no civil society groups have been involved in any meaningful way in the preparation of what is an historic change in our legislative approach. In that context and given that we are talking about a date at the end of June, we must put up the red flag and collectively try to see how we might address that matter. That is what the Irish Refugee Council is saying. Has this ever happened to our guests in any other arena in terms of legislation where their voice would effectively have been excluded?

Mr. Nick Henderson

I suppose the most recent example I would use is the International Protection Act whereby there was a review of existing legislation - not in respect of how we treat asylum seekers via accommodation but how we decide their applications for asylum. That was passed through the Oireachtas as an Act in the summer and autumn of 2015 and was finally passed into law at the end of 2016. That is an Act; it is primary legislation. The guillotine was used in respect of that legislation but, at the very least, there was an opportunity for it to have been debated in the Dáil and civil society could have briefed Deputies on it. We have submitted representations to the Minister and the Department. They have been acknowledged. We requested meetings several times last autumn and this year but those requests have been unsuccessful.

Deputy Clare Daly

When Mr. Henderson said they were acknowledged, does he mean that the Department said it acknowledged receipt of the council's letter or did he actually get any feedback on the content of the council's correspondence?

Mr. Nick Henderson

It was an acknowledgement that the Department had read the report and was considering it and then it would end.

Deputy Clare Daly

We need to look at this from the point of view not just of the council's voice being silenced but also the approach the Department adopted with the courts. Let us be clear: matters went to the 11th hour whereby it was asked to come back before it snuck in at the end. That strikes me as very worrying. As a committee, we need to look at what we should do. Would it be possible for a statutory instrument to be considered and primary legislation to be dealt with? Perhaps that is something we should know rather than the council. Could we do a bit of each? The directive does not just deal with the right to work, it also covers a range of other provisions. For all the points about human dignity and the importance of that, are we expecting anything in a statutory instrument that deals with the other areas or is the statutory instrument only dealing with the right to work because of the Supreme Court?

Mr. Nick Henderson

We expect the statutory instrument to deal with the entirety of the directive. It has to do so. If it does not, the transposition of the directive would not occur and we would not be opting in. We must also bear in mind that the statutory instrument will be given to the European Commission in order that it might review the contents. Some sort of decision would then be given by the Commissioners as to whether the statutory instrument meets the standards set out in the directive.

Deputy Clare Daly

I would have no problem with the suggestion involving the Joint Committee on European Affairs but I would imagine that it is just a recommendation it had. It probably has no status. We also have the problem that it is supposed to be done by the end of June. It is the start of May but we do not have long in connection with that deadline. Nobody knows whether their voice is being heard on this but we have a good guess based on previous actions to say that it will not be heard and Ireland might have a problem. In that sense, we must look at something even more dramatic - possibly writing and seeking an opinion on why there is no primary legislation. The witnesses have informed us and added to what we know but we must decide what we do about this as well because it is very worrying.

Chairman

Before I bring in Deputy Wallace, I can say that we will certainly be corresponding with the Minister regarding whatever position people want to reflect. That is part of what we will do in follow-up.

Deputy Mick Wallace

I thank the witnesses for coming before us. Article 20 of the reception conditions directive provides that a member state may reduce or withdraw reception conditions but requires that under no circumstances may a person be left in a state of destitution. The witnesses say that if somebody loses their place, there should be a right of appeal but that there is none at the moment. I am familiar with an asylum seeker who was in a direct provision centre in Waterford. He is going to school at Coláiste Dhúlaigh in Dublin. He was getting the bus up at the beginning of the week and going back down as the weekend approached. He arrived in December - just before Christmas -and when he returned to the centre after being in school for the week, he was told that his place was gone. He asked why and was told that he had been missing too many nights per week even though they knew he was going to school in Dublin. He asked where he could stay and was told "Not here." He told them he had nowhere to go but was informed that he could not stay at the centre and that his bed was being given to someone else. Is there no way of holding these people to account?

Mr. Nick Henderson

Under the directive, that person would have the right of appeal against any decision of the Reception and Integration Agency to withdraw accommodation and there would need to be a reasoned decision as to why it was withdrawn in order that there would be some form of accountability. Again, we do not know what that will look like because we have not seen of the content of the instrument. We have also worked with somebody in a similar situation more recently. This person was living in a direct provision centre in Cork, studying in Dublin and pursuing education while waiting for a decision on an asylum application and who received similar correspondence. There are other categories of people such as those who do not enter direct provision possibly because they are reliant on a family member or friend and that situation falls through, as well as those in direct provision who for some reason, leave - possibly to stay with a family member or friend - and that also falls through. We encounter great difficulty in getting those people back into direct provision.

Ms Rosemary Hennigan

While there would be an appeal, Article 20 allows member states to withdraw or reduce material reception conditions in a case where somebody would abandon or was seen as abandoning their residence so that is quite problematic. It also shows the degree of latitude there because it says member states may withdraw or reduce. It does not say member states shall do so, which means that somebody is making a decision about the circumstances in which we will reduce or withdraw and that is a big policy decision. To draw on Mr. Henderson's point earlier, that is a concern we have. We do not know what decisions will be made around that.

Deputy Mick Wallace

In this situation, the direct provision centre was living with the fact the person in question was going to Dublin, coming back and being there at the weekends. He was getting his €21.60 per week and everything was fine. Then it suddenly was not and they threw him out and made him homeless. Does the council visit direct provision centres? Does it find that the people who run these centres are being held to account by the Government?

Mr. Nick Henderson

We do visit the centres.

Deputy Mick Wallace

What has been the council's experience in terms of how the people who run these centres are being held to account by the Government?

Mr. Nick Henderson

There are 34 centres. In our experience, there is a wide range of types of management from good to bad to sometimes very bad. One of the critical problems we have with direct provision is the lack of vacancies. There is something like only 49 free beds across the entire direct provision estate.

The effect of that is a severe pressure on vacancies and hence pressure on people to leave if they have status. There are 460 people in direct provision who have status but who cannot leave because of the housing crisis. There is also pressure on people who, in the example that Deputy Wallace gave, are studying and maybe spending a night or two elsewhere, and people not in direct provision who have an existing outstanding asylum application and are encountering great difficulties in entering direct provision. We have a three day a week drop-in centre where we receive and assist many people and in our experience it takes up to, or more than, five rounds of correspondence with the Department of Justice and Equality to get that person re-accommodated. We may eventually get them accommodated but not immediately and while that person waits, he or she relies on existing night to night homelessness accommodation, a service that exists only in Dublin, not in Galway and Cork.

Deputy Mick Wallace

Mr. Henderson is painting a picture of a horror scene.

Deputy Jim O'Callaghan

In many ways, this is quite a frustrating meeting because we are talking about the transposition of the directive into Irish law and none of us has a clue how it will be transposed. It is a bit like assembling a group to talk about a football match they have not seen.

Deputy Mick Wallace

Well that is done.

Deputy Jim O'Callaghan

Yes, sometimes. I welcome the witnesses' enthusiasm in referring to the 17th recommendation of the Oireachtas Joint Committee on European Affairs but I suspect it is in the same position as the 16th, 15th and 14th recommendations. I do not think that will be of much benefit.

The committee needs to write to the Minister. This is legislation and we have a responsibility in respect of it. Just because it is being done by statutory instrument does not mean that we have no function at the end of it. There is only one button we can press, which I understand has never been pressed, to bring a motion to the Dáil to set aside the statutory instrument.

In his submission Mr. Henderson writes: "The IRC is calling for an unrestricted right to work after 6 months which properly protects the dignity of asylum seekers, safeguards their autonomy, and promotes integration into Irish life." How does he see that operating through the statutory instrument? Is it just that they have the right to work or are further protections required?

Ms Rosemary Hennigan

Across the EU people approach this in various ways. By and large, there are no restrictions. The UK has a list of restricted sectors but there are very few. The majority of countries approach it that way. We are unsure how a statutory instrument could provide for something along these lines and there may be a need for additional legislation. Our experience to date of the ad hoc administrative schemes is that they are difficult because there is a lack of transparency. When issues arise we have to write letters for people. There is no process, no formal way of knowing if the letter will be seen to and no chronology. A letter will come back ad hoc. It is very difficult in those circumstances to make sure people are not being left out or excluded or are not receiving the rights they are entitled to. We would really like to see a level of transparency, particularly as we opt into the directive. That is ultimately what we are calling for.

Deputy Jim O'Callaghan

Is the Irish Refugee Council concerned that if people have the right to work, and are working, they may lose their reception in direction provision centres?

Mr. Nick Henderson

In fairness to the Government, the Minister for Justice and Equality said when he appeared before this committee in January that would not be the case. He did not say that would happen and said that he would consider it in a more enlightened way. In our policy paper of last July we strongly recommended that not be the case because that would put people in a very difficult situation. It will take time for people to accumulate the resources to even begin to think of moving out of direct provision, bearing in mind they have an allowance of €21.60 and in self-employment will be able to pursue only low paying part-time work. It will be difficult for people to get the resources to move on and out, even to travel to view housing, pay for a deposit and then be able to take the step of moving out with their family, if they have one.

Deputy Jim O'Callaghan

Is it the case that some asylum seekers are seeking access to the direct provision centres?

Mr. Nick Henderson

Yes, if I claim asylum I am entitled to enter direct provision accommodation. Some may choose not to do so because they have friends or family they can rely on for a sofa or a bed. At a later date that arrangement may fall through and then they would write to and approach the Reception and Integration Agency to request accommodation. At that moment, in our experience, people are encountering great difficulty getting accommodation.

Deputy Donnchadh Ó Laoghaire

It is very frustrating but we need to discuss in private session how we escalate this, maybe by writing to the Minister. It needs to be escalated and the committee has a responsibility to address this. It should be done through primary legislation. The restriction existed in primary legislation such as the International Protection Act 2015 and others before it.

If the Government deals adequately, although I am sceptical about that, with the right to work and legislates for the Supreme Court decision, will Ireland be in compliance with the directive?

Mr. Nick Henderson

No. It contains a wide range of issues, education, detention, withdrawal of conditions and vulnerability mechanisms. The right to work is only one particular article. It is wide-ranging in other ways and that will require fulfilment, policy, procedures and law to meet the requirements of the directive.

Deputy Donnchadh Ó Laoghaire

As I anticipated, there is a wide range of areas contained in the directive, minimum protections and so on. Do any of those areas require legislative action? Some are resource based, some administrative. Do any of those require additional legislative work aside from providing for the right to work?

Ms Rosemary Hennigan

The Minister indicated when he spoke to the committee that it was his view that a statutory instrument would be sufficient. We have to accept that, although we have not seen it, and I would not want to second guess him. At the same time, however, there are substantial areas left to the member states to determine. There is a lot of discretion. There are also things the member state has to do, including the vulnerability assessment. It is difficult for us to imagine how that can be sufficiently catered for under a statutory instrument, although it may well be. We are looking at it from the point of view that these are victims of torture, rape, all kinds of situations and medical conditions, which make them very vulnerable. The ability to properly assess that and to provide the necessary care is a big task. That is why we are in part asking this committee to consider how implementation will be conducted and whether there is scope for ongoing review and monitoring of implementation.

It may be that the statutory instrument transposing the directive will say something along the lines of a vulnerability assessment will be conducted but what that actually looks like is where it really matters. In practice health screening is one thing but there is a range of other concerns to be considered and, as Mr. Henderson pointed out, it will be cross-departmental. It may be that further legislation is required for those issues or that it can be done other than by legislation. At the moment, unfortunately, we are not sure how it is intended to do it.

Deputy Donnchadh Ó Laoghaire

It seems to me that the Irish Refugee Council's understanding is that whether it is a statutory instrument or primary legislation there should be a legal basis for a vulnerability assessment, not just that it is done in practice and the resources are put in place.

There has to be a statement somewhere in Irish law, whether in regulation or statute, that every asylum seeker is entitled to a vulnerability assessment.

Ms Rosemary Hennigan

Yes, that is outlined under the directive. In order to opt into that provision, we would have to have some basis for it in Irish law. When considering what this will look like, I note that is not just for asylum seekers. It is also for the people who will be conducting vulnerability assessments. They will need to know what training will be involved, they will need adequate resources and so on. At the moment it is unclear how that will be done, but yes, to transpose that aspect of the directive there would need to be a basis in Irish law.

Deputy Donnchadh Ó Laoghaire

Before I move off that topic, are there other specific aspects the witnesses want to flag that will require explicit statements in Irish law?

Mr. Nick Henderson

They would include the vulnerability mechanism, the withdrawal of reception conditions and the appeal against it, and provisions for detention. There is a provision for detention there, and that is reflected in the fact that a detention facility is being built at Dublin Airport. There are provisions around vocational training, to support people in accessing their right to work. There are provisions around the best interest of the child. We submit that these would have to be contained and explained in the statutory instrument at the very least in order to meet the test laid out by the directive. I think the directive is phrased to the effect that transposition is to be done through the laws of the member state. As such, it cannot be left to circulars, policy notes or procedure notes. It has to have parent legislation.

Deputy Donnchadh Ó Laoghaire

Very well. I thank the witness. One of the other questions I asked of the Irish Human Rights and Equality Commission was this. Take the example of the restriction on the right to ID, specifically in relation to the right to work, what would be the best approach to deal with that, in the witnesses' view?

Mr. Nick Henderson

This problem arises with driving licences. Somebody in the asylum procedure has a card from the International Protection Office which stipulates that it is not an identification card. If that person produces that card when they try to get a driving licence from the relevant authority they encounter difficulties. The authority says that they do not have sufficient ID to get a driving licence. This may require a simple communication to the National Driver Licence Authority to the effect that people in the asylum procedure are entitled to a driving licence if they meet the other required tests. It does not seem to be a particularly difficult issue. It could be overcome by communication to and from the National Driver Licence Authority.

Deputy Donnchadh Ó Laoghaire

The witness mentioned people who might be refused readmission to the direct provision centres. There might be a right to appeal under the directive. To whom would that right of appeal lie?

Mr. Nick Henderson

Good question.

Deputy Donnchadh Ó Laoghaire

To whom should it appropriately lie?

Mr. Nick Henderson

We have thought about this and we ourselves are unsure. We await with interest to see what is proposed as the appropriate appeal body. One possibility is the International Protection Appeals Tribunal, which takes appeals from the International Protection Office, but that only deals with the issues of whether somebody is a refugee and whether he or she is entitled to subsidiary protection and permission to remain. It would be an extension of that body's remit and responsibilities to deal with appeals against removal of reception conditions.

It is important to note that Article 26 of the directive states: "At least in the last instance the possibility of an appeal or a review, in fact and in law, before a judicial authority shall be granted." "Shall" means that this is an obligation. We submit that judicial authority would require an appeal body of sufficient standard. It could not, in our submission, be an internal administrative appeal, for example to a more senior official than the one who made the original decision. In our reading of article 26, a significant level of appeal would have to be allowed.

Deputy Donnchadh Ó Laoghaire

Is there any possibility that there is no existing body of the State that would be suitable or appropriate for this?

Mr. Nick Henderson

There may be existing bodies, but they would require resources to consider appeals and training as to how to deal with them. In a way, the directive leaves no room for manoeuvre on this. It requires an appeal before a judicial authority against any decision that relates to the granting, withdrawal or reduction of benefits under the directive.

Deputy Donnchadh Ó Laoghaire

Very well.

Chairman

I have no further question to pose to the witnesses. Does Mr. Henderson have any comment he would like to make on the question I put in at the end on location, which had not been referenced before?

Mr. Nick Henderson

We work with people in the asylum procedure who find the isolation of direct provision centres generally difficult because it can prevent integration with local communities, which is something that they want to do. Of course it does affect people if they are considering trying to work. In our experience, however, the current existing provisions and restrictions around the right to work are the first hurdle that somebody encounters. They have to get over those provisions, and then consider trying to leave the direct provision centres to work.

Deputy Clare Daly

I wish to raise one point about cases when people are not allowed to stay in direct provision and this outcome is linked to the €20 payment. Has the Irish Refugee Council ever questioned why somebody who is not in direct provision is not entitled to that payment?

Mr. Nick Henderson

No, we have not formally questioned the Department on this but it is of real concern to us. It means in effect that a person has no recourse to other support or welfare. As I understand it, our representations to the Department now request that if the State is not going to accommodate somebody, at the very least it should provide them with an allowance of €21.60. The committee should also bear in mind that this €21.60 is a calculation that results from somebody's existing social welfare provision. The Department subtracts its estimation of the cost of providing bed and board and comes up with the figure of €21.60. At the very least, if the State will not provide accommodation or board to somebody, it should provide the full welfare allowance to which they would otherwise be entitled.

Deputy Clare Daly

That is very bad.

Chairman

As I assured our earlier guests, I expect that after the witnesses have departed we will take a minute to decide on the course of action we will take. I can confidently suggest that we will make the case very strongly to the Minister at least. On behalf of the committee, I thank the representatives of the Irish Refugee Council and wish them well in their continuing work. My thanks to Mr. Nick Henderson and Ms Rosemary Hennigan for appearing before us.

Mr. Nick Henderson

I thank the Chair.

Deputy Clare Daly

It was very useful. I thank the witnesses very much.

The joint committee went into private session at 11.29 a.m. and adjourned at 11.34 a.m. until 9 a.m. on Wednesday, 23 May 2018.