Seanad Éireann debate -
Tuesday, 23 Jan 2018

Vol. 255 No. 6

EU Reception Conditions Directive: Motion

Senator Martin Conway

I move:

That Seanad Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to accept the following measure:

Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast),

a copy of which was laid before Seanad Éireann on 22 November 2017.

Minister for Justice and Equality (Deputy Charles Flanagan)

I am very pleased to be in the Seanad to present the proposal of the Government that the State opts into the EU, recast, reception conditions directive 2013 under the terms of Protocol 21, annexed to the EU treaties. Last Wednesday, the opt-in proposal was broadly welcomed and supported by the members of the Oireachtas Joint Committee on Justice and Equality.

Opting into this directive will align the supports that we provide to international protection applicants fully with EU norms and standards. It will be an important step. It is a progressive step. It reaffirms our commitment to continue to implement our programme of reforms to Ireland's international protection regime.

Reforming the protection process began in 2014 with inviting Judge Bryan MacMahon and a group of experts to review our protection system, including supports for applicants. I want to acknowledge the role of Judge MacMahon, his interest in this issue and his continued active engagement in what is an important aspect of Irish life. He and his group made a total of 173 recommendations. The Government committed to undertake a process of reform that has seen positive actions across many Departments and services in order to improve what we do for people in need of protection and the way in which we do that job.

I take the opportunity to also acknowledge the hard work of Seanadóirí and the support I have received from them. I acknowledge, in particular, the work of Senator Aodhán Ó Ríordáin during his time as Minister of State in the Department of Justice and Equality. He is passionate about these issues, as are many in this House, which is why I am always anxious to continue to listen carefully to the views of Members of Seanad Éireann.

Like many Senators, I am concerned about the length of time that applicants spend in the protection process awaiting a final determination. In order to address this issue, the previous Government undertook the biggest single reform of our legislation by introducing a single applications procedure under the International Protection Act 2015. Ensuring that we have a simplified and efficient independent protection process is one part of our commitment to reform.

The other part is to ensure we continue to improve the living conditions and the opportunities for regular family life for applicants and their families, in so far as possible, while they await a final decision on their application for protection. We have responded positively to the MacMahon recommendations to enable enhanced family living in our accommodation centres and in the range of supports and services that we provide for international protection applicants. That is not to say everything is perfect or that there is an element of complacency here. We must continue to make progress. I acknowledge the work of my departmental colleague, the Minister of State, Deputy Stanton, who engages on these issues on a daily basis. Furthermore, members of the MacMahon group continue to be actively involved in the process of reforming the direct provision system, including by playing a role, for example, in the standards development process which is currently well under way.

The Supreme Court gave its judgment in the N.H.V. case on 30 May last and declared section 16(3)(b) of the International Protection Act, which prohibits access to employment without any temporal limit for applicants, to be unconstitutional. The Government did not interpret this decision narrowly by simply amending the provision prohibiting access to the labour market in the Act. Instead, it listened to the calls from Deputies and Senators, the MacMahon group and NGOs that Ireland should align its bespoke system with European norms and standards.

The Government decided that the State would give effect to the judgment by way of opting in to the European Union's recast reception conditions directive. The Government has chosen to be ambitious and to enhance and protect the rights of international protection applicants and their families. The directive not only provides a framework for effective access to the labour market but also reaches into many other areas which the Government feels it is timely to be validated by the European Commission in order to ensure that we do reach and comply with European standards.

In addition to labour market access, the directive also includes important provisions on children's rights, rights for unaccompanied minors, as well as in the areas of health care and education. The directive also defines the required material reception conditions for applicants. Participation in the directive will place the provision of these material reception conditions for applicants on a statutory basis underpinned by EU law for the first time. If approved by the Oireachtas, the State will be required to demonstrate its compliance with all of the provisions of the directive to the European Commission before it confirms our participation. This will be a rigorous process but it will also be a transparent one. I want to assure Seanadóirí that we will continue to make any changes required of us by the European Commission. My Department is leading an implementation group established by the Government to oversee the opt-in procedure and the compliance process within the timeframe set out by the Commission, a period of four months.

The directive provides for access to the labour market for applicants who have not had a first-instance decision within nine months of making their application and provided that the delay cannot be attributed to the applicant.

In determining the level of access to be provided to applicants the implementation group, membership of which is drawn from across a wide range of Departments and services, will be mindful of a number of important factors.

The State already has a functioning employment permits system for third country nationals, which we must be careful not to undermine, nor must we take any action that would be detrimental to our legal migration system. The court's judgment acknowledges our role in setting these parameters. However, we all recognise that the Supreme Court has adjudged that protection applicants have a constitutional right to seek employment, one which is not conferred on other third country nationals who are legally residing in the jurisdiction. While the court was also clear that this is not an unfettered right, the Government considers that it is appropriate to apply a balanced approach under the scope of the directive where the level of access required will be in excess of that provided under the employment permits system. Once the State's participation in the directive is confirmed, I intend to provide for access for eligible applicants by way of an immigration permission, which would exempt applicants from the employment permits system and the associated fee.

In determining the list of sectors of employment to which access will be granted, regard will be had to labour market gaps as well as the skill set of applicants and the expert advice of front-line Departments. We must also be cognisant of maintaining the integrity of the common travel area and the possible impact of the withdrawal of our nearest neighbour, the United Kingdom, from the European Union. The Government has agreed that eligible applicants will also have access to self-employment and eligible applicants may now qualify for further vocational training, which was previously unattainable. The operation of these arrangements will be reviewed after 12 months and we will be open to amendments, having reviewed its operation.

At the Supreme Court hearing of 30 November last, the State outlined its plans to the court to opt in to the directive, subject to Oireachtas approval, and the four-month process necessitated by the European Commission to confirm the opt-in following formal notification of our wish to be bound by the directive. We respectfully asked the court to adjourn the making of its final order until this process was complete. However, the court decided that the prohibition on international protection applicants accessing the labour market under the International Protection Act 2015 would be struck down on 9 February 2018. The participation of the State in the directive will not be confirmed by the court's deadline as we await the conclusion of the Oireachtas approval process, which is well under way, before we can begin the Commission mandated compliance procedure.

The decision of the court means that access to the labour market for applicants must now take place under a two-stage process. With the best will in the world, it simply will not be possible for us to have completed all of the procedures required to confirm our opt-in to the directive by 9 February. For this reason, the Government has today decided that a temporary interim solution will apply from 9 February until the date of entry into force of the directive, whereby applicants can access the workforce in two ways. The first entry point under the temporary solution is via the employment permits system of the Department of Business, Enterprise and Innovation. All applicants will be able to access this system on the same basis as other non-EEA nationals. In practical terms, this means applicants will be entitled to apply, or have their prospective employer apply, for an employment permit on their behalf to the Department of Business, Enterprise and Innovation in the sectors where the employment permit scheme applies.

In addition, to bring some clarity to the matter of self-employment I will use my discretionary powers to introduce an administrative scheme during this period to allow for access to self-employment for eligible applicants. This scheme will apply to applicants who have been nine months or more without a first instance decision and will broadly mirror the legislative access provisions to be put in place for access to self-employment once the State opts in to the recast EU reception conditions directive. This is important as I want a smooth and efficient transition into the measures giving effect by the directive in the coming months.

In tandem, intensive work is under way across government to provide for the implementation of the directive pending its formal entry into force. In making this process a success, I want to work with Members of both Houses, employers and all other stakeholders. A further information campaign will be launched nearer the time of entry into force of the directive to communicate the new and enhanced access to the workforce arrangements that will apply once we are participating in the directive. Senators may wish to assist in getting the message out to eligible applicants and I will be delighted to work with them in that regard.

Participation in the directive would be a very positive step in bringing our international protection system and supports for applicants more closely in line with EU norms and standards. There are some areas of the directive, particularly around health and education and State support for unaccompanied minors where we already apply more favourable provisions than would be required and these will be maintained. As I stated, the operation of all the arrangements we intend to implement to give effect to the directive will be implemented after a period of 12 months to ensure they are effective and working properly. I look forward to the debate and will be pleased to engage further with the Seanad in the context of proceeding towards complying fully with the directive, which I expect will take place in June 2018.

Senator Lorraine Clifford-Lee

I thank the Minister for his detailed speech. Fianna Fáil will be supporting the opting in to the directive. I want to use this opportunity to reiterate my real concern about the direct provision system and the lack of implementation in full of the McMahon recommendations. The soft recommendations have been implemented, but the meatier ones have not. As the Minister outlined, there is an opt-in process which takes approximately four months to complete. In the meantime, he will rely on the Employment Permits Act 2003. This will be restrictive and not at all suitable for asylum seekers. Virtually no one will qualify under the Act and the fees are astronomical, considering the weekly allowance afforded to asylum seekers.

As the Minister outlined, the legislative scheme which will be put in place once we have formally opted in to the directive will be more generous. It would want to be substantially more generous than what is in place and Oireachtas Members will keep a close eye on it. If it turns out to be a farce, it will not be long before we start highlighting it to the Minister. We need to ensure asylum seekers are afforded adequate opportunities to work, as well as the dignity and support needed to get their lives back on track. Essentially, they have fled wartorn countries and come here to look for a new life. If we are not affording them proper opportunities, they might as well have not sought asylum here. The current system is akin to internment. If they are not afforded the dignity of work, education and training to access the labour market, it can be crippling.

Senator David Norris

I want to challenge the Minister on certain matters and will be opposing the motion for several reasons. It is not that I am opposed to joining the recast reception conditions directive which is a good measure, but the interim measures raise a series of questions. The Minister has said the opt-in proposal was broadly welcomed and supported at the Oireachtas Joint Committee on Justice and Equality. My information from the committee is that a number of questions directly asked of the Minister were not answered adequately. That is the view of certain members of the committee.

Senator Martin Conway

Not all of them.

Senator David Norris

It will be an important and progressive step, but in what direction? The interim measures are a step backwards, which is regrettable. The Minister has said it provides a framework for effective access to the labour force. Does it? I most certainly think not.

The Minister has said that "in determining the level of access to be provided for applicants, the implementation group, the membership of which is drawn from across a wide range of Departments and services, will be cognisant of a number of important factors." It is welcome that when the interim process is over, the Minister will take steps to effectively raise the allowance paid to refugees. That is important. Under the current regime, the people in question receive €19 a week. How, in the name of God, can somebody who is supposed to be looking after his or her family on €19 a week be able to afford to pay between €500 and €1,000 for an employment permit? It is perfectly obvious that he or she will not be able to do so.

I have received a communication from the Movement of Asylum Seekers in Ireland, MASI. It states that "as people seeking asylum in Ireland and as the people directly affected by this, we ask you not to support the Government's proposed measures today, measures which will impose impossible restrictions on our access to work". That is coming from the coalface. If one wants to know if the boot pinches, one does not ask the boot, one asks the foot. In this case, the foot has made its view clear.

Asylum seekers will be limited to jobs earning over €30,000, barred from 60 occupations, including most trades, many care worker and health care professions, construction, retail, domestic work, hospitality and many other sectors. That is a huge range of jobs. It has been pointed out that this measure discriminates particularly against women because most of the jobs that will be open to asylum seekers are male-dominated. We must bear in mind that in 2000 the direct provision system was originally an interim arrangement for a temporary period. However, we have been stuck with it for 18 years. One really is a little concerned about the new interim measure.

The man who took the original Supreme Court action, a Rohingya, will not be able to find a job under the new interim guidelines. That to me makes it look as if the interim guidelines are an attempt to frustrate and get around the decision of the Supreme Court. That is something of which we need to be careful. I am rather surprised that the Minister who I know is a decent, humane and compassionate man would stand over an arrangement such as this. Perhaps there might be technical reasons which he can give to the House these ridiculous provisions under which people with nothing will pay between €500 and €1,000 and will be barred from 60 jobs were introduced. I hope he will answer some of these questions because some of them were posed at the Oireachtas Joint Committee on Justice and Equality and, according to my information, were not answered adequately.

In the light of these observations, I will be opposing the motion and calling a vote on it.

Senator Niall Ó Donnghaile

Gabhaim buíochas leis an Aire as an deis an t-ábhar tábhachtach seo a phlé inniu.

I welcome the motion before the House and the opportunity to speak to it, although we have reservations and concerns about how the Government may interpret obligations it is required to meet in line with the directive.

The recast reception conditions directive introduces several changes which, if correctly implemented in practice, will lead to improved and equal reception standards and treatment for many applicants for international protection throughout the European Union. The recast reception conditions directive encourages member states to interpret the provisions included in the directive positively and in accordance with obligations under instruments of international law. The concerns outlined in a letter received by Members today from MASI highlight the severe restrictions - what it calls impossible restrictions - which are worth the Government's consideration before moving forward.

There is recognition that detention is an exceptional measure which is to be used as a last resort and can only be justified for a legitimate purpose on six defined grounds and after alternative measures have been explored. This is a point with which the Government will struggle. The exclusion of unaccompanied married children whose spouses are not present in a EU member state from the definition of family members may, in certain cases, run contrary to the best interests of the child principle in Article 3 of the Convention on the Rights of the Child, especially where a child is dependent on his or her family for support.

I am aware that a further directive with similar intentions is going through the relevant processes in Brussels and hope it will address issues such as the one I have just highlighted.

I will speak about the current situation and the abhorrent treatment of refugees and those seeking asylum in Ireland. On 10 April 2000 Ireland entered its next dark period in its treatment of the most vulnerable within Irish society. The then Fianna Fáil Minister for Justice, Equality and Law Reform, John O’Donoghue, had commenced a new programme aimed at tackling the issue of the State’s dealings with refugees who had come here to seek asylum. These refugees, many of whom were fleeing wartorn areas that had been savaged by so-called western intervention, had come to Ireland in search of safety and in the hope of escaping persecution in their countries of origin. The system known as direct provision was seen as a way of housing them and providing them with the basics they needed to survive while their asylum applications were being processed. I hope the then Minister did not envisage what was to come, as the direct provision system had been set up with the intention of being a short-term measure. Today in the Twenty-six Counties 35 direct provision centres are active. It is estimated that they house a very diverse group of 4,500 people who have a very wide range of needs in terms of support and attention.

In the past seven years more than €400 million has been paid to private companies for operating the network of direct provision centres for asylum seekers across the State. The Minister said these firms had been paid more than €57.7 million in the 11 months to the end of November last year, giving an average figure of some €1.2 million per week. In a written reply to my party colleague Deputy Donnchadh Ó Laoghaire the Minister said the figure for this year included €48.7 million for commercial contracts or, in other words, imprisonment for profit, which is certainly not a contentious implication, given the amounts of money involved. Direct provision has become a viable business, with the majority of the centres being run on a for profit basis, which, to me, is galling. To have a profit, one must also have a deficit and it is the deficits seen within this so-called business venture that truly gall me. Like many private companies and much like the private prison system in the United States today, their business models do not seem to centre on ethics or morals but rather on how much milk can be squeezed from the cash cow. Many of the people in question arrived in this country to seek asylum but also a new life in which they could rear their children knowing that they would be able to tuck them into bed every evening and in which dignity would not have to be fought for tooth and nail and that would allow them to live rather than merely exist, for which they would be very grateful.

Senator David Norris has referred to the letter received from the Movement of Asylum Seekers in Ireland, MASI. We also received a letter today from colleagues on behalf of Doras Luimní in Limerick. They have asked us to ask the Minister a number of questions on their behalf, specifically about the proposals concerning the right to work being considered. They ask if those already in the system will be included in the proposals or whether the right to work will only be afforded to new applicants. They also ask that there be no restrictions on the professions and sectors in which asylum seekers will be able to seek work, that they continue to be allowed to reside in their current direct provision accommodation and that they be allowed to claim their full social welfare entitlements after working for a period, just like other workers from other countries.

As we know, in the past 17 years Ireland has not had a shining record in its treatment of asylum seekers. To some extent, we all bear a collective responsibility for this in terms of the culture that has prevailed where it is seen as acceptable to allow people to move into direct provision accommodation and be forgotten about. I hope the directive, if passed, will go some way towards changing the negative experience for the people in question.

Senator Frances Black

I welcome the Minister to the Chamber. I am really glad that we have been given a chance to debate this issue. The discussion at the meeting of the Oireachtas Joint Committee on Justice and Equality committee last week left several questions unanswered and much more detail is needed on how Ireland will comply in practice with the EU reception conditions directive, particularly the right to work.

The directive is welcome. It is good to see conditions for asylum seekers being put on a statutory footing and that they will be subject to greater parliamentary oversight. The provisions on access to vocational training and health care and improved support for vulnerable persons such as those who have been the victims of violence or torture are very welcome. We must bear in mind, however, that the directive merely outlines the bare minimum standards. For example, it states asylum seekers will have the right to work no later than nine months after their initial application, but the reality is that the majority of EU member states afford a right to work after six months or less. Ireland should stand up for human rights, especially given that under the International Protection Act 2015, applicants are supposed to receive a decision after six months. More detail is needed on some of the changes to be made under the directive. It states, fore example, that the payments made to asylum seekers must ensure and respect their dignity. Is the Minister satisfied that a payment of €21.60 a week is enough to ensure their dignity, even though it makes it impossible for them to pay for clothes, books, travel and other vital aspects of daily life? The directive also states particularly vulnerable asylum seekers will have access to special reception conditions. What systems will be put in place to identify and support such persons?

Like many of my colleagues, I am most concerned about asylum seekers’ right to work. When we last debated this issue in October, I outlined my worry that the Government's response to the Supreme Court's decision would be overly restrictive. Three months later that, unfortunately, seems to be the case. The interim scheme for employment that has been outlined is deeply restrictive and a shameful attempt at vindicating asylum seekers' constitutional rights. Under this proposal, asylum seekers will be limited to jobs earning over €30,000 and barred from over 60 occupations, including in the construction, health care and hospitality sectors.

Asylum seekers who receive €21.60 a week from the State will be asked to pay up to €1,000 for a work permit. Even as an interim scheme, this is clearly ridiculous. It will disbar the vast majority of asylum seekers from actually seeking employment and not amount to a substantive, effective right to work.

There is a real concern that the scheme will not comply with the Supreme Court’s ruling, meaning that every single day of the four month interim period we will be violating the constitutional rights of asylum seekers. In that context, a legal challenge against the State can be expected. On the basis of the interim scheme, the brave Burmese man who actually persisted and brought the case to the Supreme Court would not be able to accept the position of chef at the direct provision centre in which he is living.

We urgently require further concrete details on how the right to work will operate once the EU reception conditions directive is transposed. My big concern is that what is being introduced as an interim measure will end up being the permanent scheme of employment for asylum seekers. Direct provision was supposed to be a temporary measure in 2000, yet the system still persists nearly two shameful decades later. The call in this Chamber is loud and clear that we do not want a longer term employment scheme under the EU reception conditions directive to be as punitive and restrictive as the interim scheme. We are told that the €1,000 permit fee will be waived, but we need more detail in writing on salary or sectoral restrictions. If such restrictions are put in place, the Government should be willing to justify in writing exactly why it believes it is necessary to stop asylum seekers working in health care services, for example. It would be useful if the Department were to provide a formal outline of all of the changes to be made to the current system and, ultimately, in the longer term scheme under the directive. It could be accompanied by a comparison with the position in other EU countries.

Overall, the right to work is about much more than a job. It is about self-esteem, human dignity and the chance to put one's skills and talents to productive use. It is about one's mental health and the health of one's children. It means better integration into Irish society and better job prospects when asylum seekers exit the carceral system of direct provision. I want to quote what one man in the asylum system who appealed to Judge Bryan MacMahon said. He said:

Just let me work. Let me get up in the morning. Let me put on my clothes and have my breakfast with my children, and come back in the evening and say – today I worked.

This is not someone who is looking for support but someone who wants to be able to support himself and enjoy the basic human dignity given by using his skills and talents. The Government talks about this being a republic of opportunity, but effectively if we deny people the right to work, we condemn them to poverty. Where is the opportunity in that? I urge the Minister to recognise the fatal, restrictive flaws in the interim scheme and ensure it will not form the basis of the employment system once the EU reception conditions directive is transposed.

Senator Martin Conway

I welcome the opt-in to this EU directive. I attended the Joint Committee on Justice and Equality and I believe the Minister, Deputy Flanagan, made a fair and comprehensive effort to address the very technical and detailed questions posed to him. The Minister would be the very first to accept that this is not a panacea to resolving all of the many challenges associated with direct provision. On numerous occasions in the past, I have said this is probably something for which a future Taoiseach will have to apologise in the Houses of Oireachtas, in particular in respect of the children who have grown up and spent the most formative years of their lives in direct provision. It is in a similar vein to what happened in institutions run by the Roman Catholic Church and others in the past.

That said, much has happened since the McMahon report. It is a fair comment that the easy recommendations have been implemented but that is the case with every report. There are many recommendations in reports and the more straightforward ones will, of course, always be implemented first. That is just common sense. Anyone who would suggest otherwise is not living in the real world. It is welcome that members of that particular group are still engaged in this process. It is an incremental process. It is something that is being dealt with. It was established 18 years ago as a knee-jerk reaction to a difficult situation where thousands of people were presenting themselves in this country. These centres were established as a temporary measure in order to put a roof over their heads.

What happened then was that the cumbersome and complicated process of assessing their applications kicked in. There were judicial appeals and court cases. Some cases are gone to Europe. People found themselves in the system for a lot longer than they should have. Everybody accepts that. International best practice can be seen in Portugal. If a person is in a reception centre there for six months, he or she is in them too long. However, NGOs in Portugal will still say that they are not satisfied with that system.

I do not think a system has been created anywhere in the world to deal with this particular problem which meets the satisfaction of all the stakeholders and parties involved. We can always do better. I salute the former Minister of State, Senator Aodhán Ó Ríordáin, a colleague of ours. The issue of direct provision had just been dangling there until he caught it by the scruff of the neck in order to do something constructive and productive. I have spoken to him privately and in exchanges in the House and have no doubt he finds it very frustrating and gets very angry at times at the slow process in dealing with it. There is no bad faith on the part of the Minister or those close to him in addressing this problem. Now that we find ourselves in a better place economically it brings with it very clear responsibilities to deal with this issue as quickly as we can. Those who arrive on our shores and present to us for care, assistance and support are the most vulnerable.

We have a very clear international obligation to respect their dignity, integrity and decency. We are a decent nation and society. That is what we should be doing and I know that is what we all parties here aspire to. There was a very fair effort by the Minister to address concerns. As we all know, when these EU directives are implemented and become policy, all the ancillary regulations, associated paperwork and explanatory documents usually come down the line. It would be rare that all the bells and whistles from A to Z, the dictionary of implementation, would be available ahead of the directive being brought into force.

I appeal to Senator Norris in the spirit of co-operation not push this to a vote because I do not think it would be right. I know Senator Norris's intentions-----

Senator David Norris

I have been asked-----

Senator Martin Conway

-----are always very honourable.

Senator David Norris

Not always.

Senator Martin Conway

He is someone for whom I have a huge regard. Pushing this to a vote is not the right thing to do. We are opting in. It is somewhat counterproductive if one thinks it through.

Senator Aodhán Ó Ríordáin

I am having a great day. I just came from a meeting about drug policy where I got some compliments about my work as a Minister of State and then I walk into this Chamber and Senator Conway has just said something nice about me.

Senator Martin Conway

The Senator needs to get back into government.

Senator Aodhán Ó Ríordáin

Then I pick up the Minister's speech and there is a reference to the work I did at some stage-----

Senator David Norris

Is the Senator not wonderful?

Senator Aodhán Ó Ríordáin

I am blushing. I did not even need to wear a pink shirt today because if I had worn a white one, my rosy cheeks would have been reflected in it given the wonderful things that people are saying about my work in government.

I appreciate what the Minister is trying to achieve. That is all very well but, unfortunately, I have to take the same tack as Senator Norris in opposing the measure in front of us for a number of reasons. This all comes from a Supreme Court judgment. That is unfortunate because during my time in the Department of Justice and Equality, and working with the Minister's predecessor, Deputy Frances Fitzgerald, this came from a sense of justice. I refer to a sense of a great injustice that was being done in our society. As Senator Conway said, in years to come, there will be a State apology for those who have been languishing in the system for a long time. It has come from that. Something needs to be done.

The strongest voices in Irish society on the issue of direct provision were in this very Chamber, right across the political divide. What upsets me is that the reaction to what needed to happen came from a Supreme Court judgment. It did not come from within the Department itself or from the political leadership in the Department but because the Minister was told to do it. That is a great shame. In six weeks' time the Taoiseach will be in the White House and will hand President Trump a bowl of shamrock. I am sure that in a side office somewhere, he and his representatives will say to President Trump that he needs to do something about his immigration policy and that it needs to be a bit more humane to the Irish. Yet, we have 26,000 undocumented workers who need regulation. We will not do what we are asking the Americans to do. Ireland and Lithuania are the only two countries in Europe which refuse point blank to give asylum seekers access to the labour market.

As was so eloquently put by Senator Black, that sense of dignity of coming home, washing one's hands after a day's work and talking to one's children about that work is the reason for getting up in the morning. It is fundamental to our identity. It also leads into all these myths about asylum seekers in terms of what they can and cannot do and the entitlements they have. We have all heard them. They are all lies. An asylum seeker is not entitled to work, even if he or she wants to.

What is frustrating is the lack of leadership. The political leadership in the Department should be sick to the pit of its stomach at the scenario that we are overseeing and should be trying to change it. I refer also to the hypocrisy of going around the world talking about immigration policy when we cannot do it ourselves. I love the paragraph in the Minister's speech in which I am mentioned, but I take issue with it. It states that the court's decision means that labour market access for applicants must now take place under a two stage process and uses the words "with the best will in the world". I have, and the Minister probably has, the best will in the world but the Department of Justice and Equality has lost any credibility to utter a statement about having the best will in the world. It has shown zero goodwill to any asylum seeker who comes to this country. I know from my time there that the overarching phrase it wants everybody to think about, which it would almost have painted on every wall in the Department, underneath the bulletproof windows, is "pull factor". Before doing anything in the Department of Justice and Equality, one must be concerned at all times about the potential pull factor.

That is really what drives this debate. The idea of having best will is, unfortunately, bordering on laughable. It will not be possible for us to have completed all the procedures required to confirm opting in to the directive by 9 February. The Supreme Court judgment was made on 31 May, if I am not mistaken. The judgment called on the Department to do something within six months and then gave the Department another two months to do something. If the Government was serious about this issue, it would have seen the Supreme Court judgment on 31 May as a fantastic political opportunity to set things right. It was an opportunity to declare that no longer would Ireland be one of only two countries in Europe not to allow asylum seekers into the labour market, no longer would we be an outlier in this regard and no longer would we have a questionable record when it comes to direct provision and the housing of asylum seekers. We can do this far better but unfortunately that was not the reaction.

The suggestion that we operate an employment system under the 2003 Act has been made. It has already been stated that an applicant would have to earn over €30,000 per year. I recognise there is the potential to waive the €500 or €1,000 fee to enter the scheme. There are approximately 60 jobs that an applicant cannot do. The measure reflects classic Department of Justice and Equality thinking. I mean no disrespect to people who work in that Department. However, I know what the Department of Justice and Equality is like. It is about security, law and order, the Garda and prisons. It covers a vast bulk of legislation that goes through these Houses. That is what the Department of Justice and Equality is for. Those in the Department do not really believe that it is their job to have a humanitarian outlook when it comes to issues of people coming to this country to seek asylum. They always refer to the pull factor. We know there have been difficult cases of people who have been possibly raped or victims of violence or torture and who have come into this country. Regardless of the issue, there will always be an official somewhere in the Department who will whisper into the ear of the Minister or the Minister of State words about the pull factor.

On that basis I regret to say the Labour Party will not support this move in the Seanad or the Dáil. We will support any vote that is called to reject the measure not because we want to do it, but because when it comes to best will and good will we have gone far past the capacity to believe a word that comes from the Department of Justice and Equality on this issue.

Senator Trevor Ó Clochartaigh

Aontaíom le cuid mhaith a bhfuil ráite ag na Seanadóirí eile romham. This really is a heartless and cynical move by the Department of Justice and Equality. We held a direct provision protest in Galway on Saturday. Several brave people who are in direct provision centres and who are afraid to speak out normally, spoke out publicly. They told us again of their plight within the direct provision system. To say they are disappointed with this news would be a major understatement. They are absolutely devastated. Following the Supreme Court ruling, they believed there was a chink of light at the end of the tunnel for them and their plight. Some of them have been in direct provision centres for ten or 12 years. Their lives have been put on hold unfairly. They have not been allowed to update their qualifications or show example to their children by going out to work and providing a living for their families. They are absolutely devastated.

Representations have been made to us by several organisations. Possibly the most pertinent today are the representations from the Movement of Asylum Seekers in Ireland. MASI stated this move, if it is allowed to pass through the Houses – I hope it is not – will impose impossible restrictions on access to work by asylum seekers. MASI stated the Government has not given any detail of what the right to work will look like once the opt-in to the directive is complete. In the meantime, MASI states the Government's proposed interim measures are punitive, to say the least. Under the proposal, asylum seekers will be limited to jobs that pay over €30,000. They will be barred from over 60 occupations, including most trades, many care worker and health care professions, as well as the construction, retail, domestic work, hospitality and many other sectors.

Let us reflect on that matter. We are crying out for nurses and health care workers. I have met many qualified people within the direct provision system who could help in that regard, but we are blocking them from doing so. MASI states the list of restricted occupations is shocking and that, in addition, these proposals will require asylum seekers to somehow come up with €500 to €1,000 for a work permit.

My reading of the proposals suggests this is not really about the right to work but about the right not to work. It is about designing some measures to ensure that no one or very few within the direct provision system would have any chance whatsoever to qualify for the right to work. It is absolutely disgraceful.

MASI maintains that the interim measures mean few of the people seeking protection in Ireland will have the opportunity to earn their own living or support their families. However, that opportunity is really important to them. We can all go home. I can go home to my family and children. I have earned my wage or my crust and can show example to my children. However, we are not allowing these people to do that. It is a basic fundamental human right but the Minister is blocking them from it. I appeal to the Minister at this stage to pull back from this measure and to implement the spirit of the Supreme Court judgment.

MASI maintains that this interim measure is a cynical box-ticking exercise that is already negatively affecting the lives and futures of living, breathing human beings. The brave Rohingya man who brought his case on the right to work to the Supreme Court would be barred from working under the Government's interim measures. That surely cannot be right. Perhaps the Minister can answer that question. Does the Minister think it is right that the man who was brave enough to go to the Supreme Court would himself be barred under this measure?

I welcome the comments of the Irish Refugee Council. The council states channelling access to this right by the employment permit process is inappropriate and restrictive. The council also questions why two separate phases are necessary for the implementation of this right, especially since the Government has known of the Supreme Court decision since May 2017. I and other Senators have raised that question. We asked the Minister to bring forward proposals rather than leaving it until the last minute. What has he done? The Minister has left it until the last minute. Was that by design or default? My fear is that it was by design.

MASI notes that waiting times on asylum status determination in Ireland are at crisis point. Thousands of people have already waited for more than a year for an initial decision. The right to work should be retrospective and immediately available to people in this position. Why has the Minister not taken that position?

MASI states it is discouraging to still hear concerns about the right to work being a pull factor. To be honest, so many people believe that is the real motivating factor of the Department. MASI states that for the right to work to be truly effective, access to the labour market should be without restriction as far as possible. People should be given access to the labour market if they have waited six months for a decision. They should be free to work in any sector or be self-employed. This right should apply to new applicants and those to whom the transitional provisions of International Protection Act 2015 apply.

Senator Ó Ríordáin referenced the Irish abroad who are looking for the regularisation of their status. The big difference in this case, thanks be to God, is that most of them have not had to flee war-torn areas or persecution. The people in this system have had to do precisely that. That makes it a double injustice.

Doras Luimní has expressed disappointed in what was outlined by the Government. The organisation has recommended the following: access to the labour market be granted to people seeking asylum no later than six months after an initial application and that this should be retrospectively applied; no restrictions should be in place; the residents of direct provision centres should be able to retain accommodation in direct provision during any period of employment, if needed; and asylum seekers who have access to the labour market should have a right to claim social welfare payments.

MASI has expressed particular concern that what was introduced as an interim measure would end up being the permanent provision for asylum seekers accessing employment. We have a wonderful example in direct provision of what was to be a temporary measure but which is certainly temporary no longer. That really is the fear.

No Senator should support this measure. The Government should go back and bring in a proper measure in line with the spirit of the Supreme Court ruling. Such a measure should fully live up to the obligations under the right to work directive rather than what is being proposed. I appeal to all Senators in that regard.

I welcome comments from the Immigrant Council of Ireland. I do not have time to read those comments but the council has been critical of the measure. All the organisations dealing with asylum seekers as well as asylum seekers themselves are calling on the Government not to bring in this measure as proposed. The Minister should go back and do the right thing. I call on all Senators to oppose it strongly in this House and I appeal to Deputies in the Dáil in that regard also.

Senator Lynn Ruane

I was not going to speak but I have become confused as the debate has gone on.

An Leas-Chathaoirleach

If I had known that, I would have called the Senator earlier. I thought you had indicated that you wished to speak.

Senator Lynn Ruane

I was not going to speak. I simply need to clarify some points.

An Leas-Chathaoirleach

You are confusing the Chair.

Senator Lynn Ruane

That is easily done, a Leas-Chathaoirligh. I am only joking.

I call on the Minister to clarify something. I agree with what everyone in the Chamber has said in respect of how restrictive the measure is. Is the purpose of the motion not to sign up to the EU directive in order that we will strengthen the rights of the vulnerable people and the people in direct provision who we are talking about in the long term?

I believe I am right in saying this is copied and pasted from the Employment Permits Act 2003 in respect of the restrictions. That is my understanding. It took the restrictive process from the Employment Permits Act 2003 and brought it into the present. I understand that people fear that this will not remain an interim thing and will become long-term. Will the Minister explain what will happen if we do not sign up to this EU directive? How do we improve the situation in respect of people's right to work if we do not participate in this EU directive? That is the information I am looking for.

Minister for Justice and Equality (Deputy Charles Flanagan)

I thank the Senators for their consideration. I want to point out that, as Senator Ruane has said, it is important that we have the opportunity of opting into the EU reception conditions directive, recast, because we need to bear in mind the key benefits it will bring to applicants and their families during their time in our protection process. Of course, we are using the opportunity afforded to us by the Supreme Court to continue the programme of reforms we have been undertaking since 2014. I thank Senators for their support. I am seeking the permission of the Seanad to proceed along the avenue of opting in. If I do not get that permission and it is not forthcoming, we will have a challenge and we will not be in a position to proceed along the lines that Seanadóirí have indicated they believe to be best. I very much agree with Senator Ruane's sentiment.

I understand the issue of access to the labour market is a key consideration for everybody here, as it is for applicants themselves and for all stakeholders. I also appreciate the fact that some Senators have stated that they find the temporary access arrangements to be unduly restrictive. I have to say these arrangements are temporary. They are short-term and will be in place until such a time as we opt in.

Senator David Norris

Why are they being progressed?

Deputy Charles Flanagan

A statutory period of four months is needed to ensure we are fully compliant with the opt-in process.

Senator David Norris

We do not need these restrictive practices, however.

Deputy Charles Flanagan

I do not think we could avoid them.

Senator Martin Conway

It is a good explanation.

Senator David Norris

It is not.

Deputy Charles Flanagan

I assure Senators that the interim process is temporary and short-term and that we remain committed to providing effective access to the labour market for applicants under the directive. The restrictive regime, as Senator Norris and others have called it, is a temporary measure.

Senator David Norris

That is a lie.

An Leas-Chathaoirleach

We will have order, Senator.

Deputy Charles Flanagan

It is in line with the limited options available to us to provide access during the interim period. It is important that we all work together. Senators were critical of the Department of Justice and Equality. While the Department is very much involved in this process, there are other considerations as well. We must consider jobs, social protection, health rights, children's rights, education and vocational training. There are nine Departments involved in a whole-of-Government approach to this issue. I am anxious to ensure that this issue can be dealt with in a way that provides access to work under the directive for those who wish to avail of it. In the meantime, I need the permission of the Oireachtas and the European Union requires a four-month compliance process to allow us in.

Senator David Norris

Is the Minister saying the Department of Employment Affairs and Social Protection is holding us back and making the system restrictive?

An Leas-Chathaoirleach

The Senator has had his opportunity.

Deputy Charles Flanagan

No. I assure Senators that the interdepartmental group, which involves nine Departments, is working to ensure we will be in a position to opt in to what is a far more favourable regime, which will be acknowledged by stakeholders, applicants and Senators. We will not be in a position to do so until June.

Senator David Norris

Why have an unfavourable one now?

Deputy Charles Flanagan

I acknowledge the support of Senator Clifford-Lee and her party. In response to a question which she posed to me, the full accounts of the McMahon recommendations are published online. They set out actions taken. In excess of 95% of the recommendations have been wholly or partially implemented. Mr. Justice McMahon himself has called for the opt-in. He is in favour of it. The non-governmental organisations, NGOs, that have been quoted have also called for Ireland to opt in to the directive. They have been calling for that for some time. They are still calling for it. As soon as we indicated that we were in a position to move on towards the opt-in process, opposition arose. I must say to Senator Norris and to Senators who are minded to vote against the motion that they will be frustrating the avenue or roadmap which is available to us to ensure that we can opt in.

I am reluctant to name or refer to any individuals in the House, but there has been reference to the Rohingya man who brought the court proceedings in the first instance. He did enjoy the right to work. He had it. To suggest he does not have a right to work-----

Senator David Norris

That is not what he thinks.

Deputy Charles Flanagan

-----is not particularly accurate.

Senator David Norris

Has he got a job?

An Leas-Chathaoirleach

Please, Senator.

Senator David Norris

Has he got a job?

An Leas-Chathaoirleach

The Senator is out of order.

Deputy Charles Flanagan

The important issue is that we move forward towards the opt-in. The opt-in will provide benefits to applicants and their families which are not available to them. In response to Senator Norris's comments on an employment permit fee, it is my understanding this is paid by the employers.

Senator David Norris

It is in some instances.

Deputy Charles Flanagan

It will not be an issue. I acknowledge the contribution of Senator Ó Donnghaile. He referred to a letter he received from Doras Luimní. I would be grateful if he let me have a copy of the letter before we leave the House.

Senator Niall Ó Donnghaile

Ní fadhb ar bith í sin.

Deputy Charles Flanagan

I am very keen to have the issues raised therein replied to at the earliest opportunity. I do not have the letter. I note what the Senator says about the direct provision regime. I do not believe the direct provision regime is ideal, but I acknowledge that we are making improvements thereto along the lines recommended in the McMahon report. I visited some centres myself and would invite colleagues to do so themselves. I reject the assertion that these are commercial, for-profit centres. If that were the case, I do not believe we would have such a small number of applicants to run the centres.

Senator David Norris

Of course companies make profits. They have made €47 million. They are not doing it for fun.

Deputy Charles Flanagan

The effective right to work will result from the opt-in. I acknowledge what Senator Black has said in that regard. The opt-in process will guarantee that the new scheme will be required to be up and running within a period of four months. There was a common concern among Independent Senators that the short-term or transition measures, to which there has been so much reference in the course of the debate, would become long-term or more permanent. I assure Senators that will not be the case. We are continuing our preparations to ensure that the directive enters into full force at the earliest opportunity and as quickly as possible. A key part of this process, however, is the approval of the Seanad, without which we cannot proceed to notify our EU colleagues formally that we wish to participate in the directive. I say that particularly in response to the questions posed by Senator Ruane. Both the Minister of State, Deputy David Stanton, and I are committed to ensuring our protection process is fit for purpose and that all applicants are treated in a humane manner and with the dignity they deserve while their applications are being decided on.

I also aim to reduce the case load on hand as quickly as possible to get to a point where a first instance decision is issued within nine months, as far as applicants are concerned. I ask Senators to approve our participation in the opt-in. I am happy to come back in the coming months while we are in the course of finalising our programme for opt-in to keep Senators informed of developments in the matter of progress.

An Leas-Chathaoirleach

Is the motion agreed to?

Senator David Norris

It is not.

Question put:

The Seanad divided: Tá, 25; Níl, 10.

Tá

• Black, Frances.
• Burke, Colm.
• Burke, Paddy.
• Butler, Ray.
• Buttimer, Jerry.
• Byrne, Maria.
• Clifford-Lee, Lorraine.
• Coghlan, Paul.
• Conway, Martin.
• Daly, Paul.
• Dolan, John.
• Feighan, Frank.
• Higgins, Alice-Mary.
• Horkan, Gerry.
• Lombard, Tim.
• McFadden, Gabrielle.
• Mulherin, Michelle.
• Noone, Catherine.
• O'Donnell, Kieran.
• O'Donnell, Marie-Louise.
• O'Sullivan, Grace.
• Richmond, Neale.
• Ruane, Lynn.
• Swanick, Keith.
• Wilson, Diarmuid.

Níl

• Bacik, Ivana.
• Conway-Walsh, Rose.
• Gavan, Paul.
• Humphreys, Kevin.
• Mac Lochlainn, Pádraig.
• Nash, Gerald.
• Norris, David.
• Ó Clochartaigh, Trevor.
• Ó Donnghaile, Niall.
• Ó Ríordáin, Aodhán.

Tellers: Tá, Senators Gabrielle McFadden and Michelle Mulherin; Níl, Senators David Norris and Aodhán Ó Ríordáin..

Question declared carried.