Direct Provision: Comparing Asylum Provisions in Ireland and the United Kingdom from 1922 to Present

DIRECT PROVISION: COMPARING ASYLUM PROVISIONS IN IRELAND AND THE UNITED KINGDOM FROM 1922 TO PRESENT

Emily Peters

Ireland’s controversial policy of Direct Provision, often associated with its accommodation centres, encompasses a range of provisions for asylum seekers including health care and allowances. It was proposed shortly after the Immigration and Asylum Act 1999, the basis for the UK’s reception policy, was put forward. Direct Provision mirrors UK policy in many ways. However, both Ireland and the UK intend to move away from their current systems. Ireland has proposed to improve the system for asylum seekers. Conversely, the UK’s proposals have aimed to restrict immigration and criminalize the asylum process. This article will analyse the treatment of asylum seekers in both countries by examining historical attitudes, comparing their current systems and by comparing the future of asylum in the two states.

Treatment of Asylum Seekers in the 20th Century

The UK had a long history of immigration, and related legislation leading up to the current policy. This legislation was historically strict. In 1922, any immigrant who could not support themselves and their defendants could be refused entry into the UK.1 The Refugee Convention 1951 enumerated the international rights of refugees and was a turning point for asylum policy in the UK.2 To align with the Convention, the UK formed organizations which would later merge to form the Refugee Council.3 However, the 1990s saw the development of what would eventually become the policy of segregating asylum seekers from the general public. The Refugee Council and government worked together to establish temporary reception centres and support for newly arrived asylum seekers as a response to various European crises.4 These temporary measures would inform the provisions of the Immigration and Asylum Act of 1999, the basis of the current system.

1 Aliens Restriction (Amendment) Act 1919 (UK); Aliens Order 1920, SR&O 1920/448 (UK). 2 Convention Relating to the Status of Refugees (1951) 189 UNTS 137. 3 These were the British Council for Aid to Refugees and the Standing Conference on Refugees; see ‘Our History’ (Refugee Council 2022) < www.refugeecouncil.org.uk/about-us/our-history/> accessed 1 Mar 2022. 4 Refugee Council ‘Our History’ (n 3).

In contrast, Irish legislation around immigration was sparse at the start of the century. It was not until the late 1990s that Ireland received a significant influx of asylum seekers.5 In response, Direct Provision was adopted as an emergency procedure. It took on many of the same qualities as the recently established UK system.

The Current Systems

Following the increased number of asylum applications, the UK adopted the Immigration and Asylum Act in 1999. This created a specific reception system to support asylum applicants as they awaited processing.6 The policy which arose from this and has been further influenced by EU measures7 requires that those granted asylum are provided with information about the rights and services they are entitled to.8 Among these are the rights to receive medical treatment9 and assistance finding legal representation.10

The most recognised service provided is housing. Applicants are first placed in temporary accommodation, typically hostels, for a month,11 longer if backlogs occur.12 They are not entitled to access welfare payments during this period. When their claim is filed, applicants are moved into standard accommodation, provided there is space. They are not given a choice as to where they will be moved. Often these centres are remote, far from the applicants’ legal representatives.13 They have been criticized for

5 Martin Ruhs and Emma Quinn, ‘Ireland: From Rapid Immigration to Recession’ (Migration Policy, 1 Sept 2009) <www.migrationpolicy.org/article/ireland-rapid-immigration-recession> accessed 1 Mar 2022. 6 Immigration and Asylum Act 1999, pt 4 (UK). 7 Council Directive 2003/9/EC Reception Conditions Directive OJ L 31/18. 8 Immigration Rules (HC 395) pt 11, para 344C (UK). 9 National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2021, SI 2021/1123, pt 4 (UK); Scottish Government Healthcare Policy & Strategy Directorate, April 2010, CEL 9 (2010) Overseas Visitors’ Liability to Pay Charges for NHS Care and Other Services (UK); Provision of Health Services to Persons Not Ordinarily Resident Regulations (Northern Ireland) 2015, SI 2015/27 reg 9 (UK). 10 Immigration Rules (n 8) pt 11b, para 358 (UK). 11 National Audit Office, COMPASS contracts for the provision of accommodation for asylum seekers (HC 880) 2014 (UK). 12 AIDA Asylum Information Database, Country Report: United Kingdom (2015) 70; Immigration and Asylum Act 1999, s 98 (UK). 13 AIDA Country Report: UK (n 12) 84-7 (UK). 76

failing to ‘provide security, respect for privacy and basic levels of hygiene and safety, particularly for women’.14

Once in standard accommodation, applicants are entitled to a weekly payment, which is a mere £39.63 per person per week.15 This is the sole source of income for many applicants, as they are not permitted to work unless they have been awaiting processing for over a year.16

Ireland’s Direct Provision was modelled after the UK’s asylum system. Intended as a temporary emergency measure, it has lasted for 22 years. Like the UK, it is required that applicants are informed of their rights and the services they are entitled to.17 These include children’s rights to enrol in the Irish school system18 and all applicants’ rights to free health care. 19

Ireland faces unique problems in providing the critical service of accommodation. A housing crisis has led to a shortage of accommodation, but as the number of asylum seekers continues to grow, it has led to an increase in the use of emergency accommodation.20 People may stay in temporary centres for up to 16 months.21 According to AIDA, the emergency accommodation is ‘unsuitable for the needs of protection applicants’,22 especially in regard to personal space23 and the quality of food.24

Furthermore, applicants who have been in the system for over 6 months are permitted to work.25 However, practical matters such as the remoteness of the locations and lack

14 ibid 68; Home Affairs Committee, Asylum Accommodation: Replacing COMPASS (HC 1758) 2018 (UK). 15 Asylum Support (Amendment) Regulations 2021, SI 2021/99 (UK). 16 ZO (Somalia) v Secretary of State for the Home Department [2009] EWCA Civ 442 (UK). 17 Reception Conditions Regulations 2018, SI 230/2018, reg 3. 18 ibid reg 17. 19 ibid reg 18. 20 Dáil Deb 15 September 2020, Parliamentary Question No 582; Sorcha Pollak, ‘Hotels in the east being used as temporary direct provision centres’ The Irish Times (Dublin, 19 November 2018). 21 Ombudsman, The Ombudsman & Direct Provision: Update for 2019 (2019). 22 AIDA Asylum Information Database, Country Report: Ireland (2020) 84. 23 Dáil Deb 3 March 2021, Parliamentary Question Nos 602, 603, 612 and 613. 24 Ombudsman, The Ombudsman & Direct Provision: Update for 2020 (2021). 25 Department of Justice, ‘Minister McEntee announces reduced 6 month waiting period for international protection applicants to access work’ (2021) 77

of public transit make finding work extremely difficult.26 This is significant as asylum seekers are only entitled to a weekly allowance of €38.80 per adult and €29.80 per child.27

The intention was that people would spend no longer than 6 months in Direct Provision before integrating into the general community. However, the majority of applicants stay in Direct Provision for over a year, and some have been in the system for over seven years.28

Future Reform

Both Ireland and the UK have recently planned changes to their asylum systems: while Ireland aims to improve the system for asylum seekers, meeting their needs where the current system fails to, the UK aims to restrict immigration to the state. The differing approaches are notable, as Ireland and the UK have previously held similar attitudes toward migration and asylum.29 However, the attitude of the UK has been significantly more negative than that of Europe as a whole in recent years.30 Importantly, the change follows the UK’s departure from the EU. Therefore it is not bound to EU rightsprotecting measures which it adopted as a member state.

The ‘Nationality and Borders Bill’, put forward by anti-immigration Home Secretary Priti Patel, was criticized as unconstitutional and sparked a number of protests.31 The

<www.justice.ie/en/JELR/Pages/PR21000016> accessed 1 Jan 2022; NVH v Minister for Justice and Equality [2017] IESC 35; Reception Conditions Regulations 2018, reg 11(3). 26 Country Report: Ireland (n 22) 91. 27 Department of Social Protection, Daily Expenses Allowance (2019) <www.gov.ie/en/service/ba5ad9-daily-expenses-allowance/> accessed 1 Feb 2022. 28Dáil Deb 13 October 2020, Parliamentary Question No 372. 29 Anthony Heath and Lindsay Richards (2019), ‘How do Europeans differ in their attitudes to immigration?: Findings from the European Social Survey 2002/03 – 2016/17’, OECD Social, Employment and Migration Working Papers No 222, 1 <www.doi.org/10.1787/0adf9e55-en> accessed 1 Mar 2022, 12, 14. 30 Scott Blinder and Lindsay Richards, ‘UK Public Opinion toward Immigration: Overall Attitudes and Level of Concern’ (The Migration Observatory, 20 Jan 2020) <www.migrationobservatory.ox.ac.uk/resources/briefings/uk-public-opinion-towardimmigration-overall-attitudes-and-level-of-concern/> accessed 2 Mar 2022, fig 2. 31 Chantal Da Silva, ‘UK Accused Of Hosting 'Sham' Consultation On Refugee Policy In Letter Signed By Nearly 200 Groups’ Forbes (30 April 2021) <https://www.forbes.com/sites/chantaldasilva/2021/04/30/uk-accused-of-hosting-shamconsultation-on-refugee-policy-in-letter-signed-by-nearly-200-groups/?sh=5c2567b064c3> accessed 1 Feb 2022; Nalini Sivathasan, ‘Nationality and Borders Bill: Why is it causing 78

bill proposed to segregate refugees into two groups: lawful and unlawful.32 To qualify as ‘lawful’, applicants must have come directly to the UK33 and presented themselves to the relevant authorities without delay.34 The majority of refugees stop first in a country which borders their first country and therefore would not meet these requirements.35 The grouping system would allow the UK to skirt around the rights which ‘lawful’ asylum seekers are entitled by international law.36 The bill then sought to capitalize on this by criminalising the asylum process in a way which would impact 90% of asylum seekers in the UK.37 Additionally, it would allow a naturalized individual’s citizenship to be revoked without any notice, for the vague purpose of ‘public interest’.38 According to UN human rights experts, this would ‘increase the possibility of arbitrary deprivation of citizenship ̶ which has a troubled history rooted in racism and discrimination.’39

However, the clauses which categorized certain asylum seekers as unlawful and allowed for the revocation of citizenship without notice were both rejected in the House of Lords on 1 March 2022.40 The recent rejection of these central clauses has dramatically

protests?’ The BBC (London, 7 Jan 2022) <https://www.bbc.com/news/newsbeat-59651523> accessed 1 Feb 2022. 32 Nationality and Borders Bill HC Bill (2021-22) cl 11(1) (UK). 33 ibid cl 11(2)(a). 34 ibid cl 11(2)(b). 35 UNHCR, Refugee Data Finder (2022) <https://www.unhcr.org/refugee-statistics/> accessed 1 Feb 2022. 36 See also European Convention of Human Rights (ECHR), arts 3, 6, 7. 37 Those who do not obtain an appropriate entry clearance before arriving commit a criminal offence as per the Nationality and Borders Bill clause 9(2). There is no asylum category for entry clearances, therefore anyone coming from a country where a visa is necessary has the potential to be charged. This includes 90% of asylum seekers in the UK; see also UK Home Office, Immigration Statistics (September 2021) <https://www.gov.uk/government/statisticaldata-sets/asylum-and-resettlement-datasets#asylum-applications- decisions-and-resettlement> accessed 1 Mar 2022. 38 Nationality and Borders Bill (n 32) 9(2)(c)(iii). 39 OHCHR, United Kingdom Nationality and Borders Bill undermines rights of victims of trafficking and modern slavery, UN experts say (2022) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=28027&LangID=E> accessed 1 Mar 2022. 40 UK Parliament, Lords asks government to think again on Nationality and Borders Bill (2022) <www.parliament.uk/business/news/2021/december-2021/lords-debates-nationality-andborders-bill/> accessed 2 Mar 2022.

reduced the impact of the proposed bill and it is now unclear what the future of asylum will look like in the UK.

In stark contrast to the UK’s proposal, Ireland’s new approach to asylum alleges to be ‘grounded in the principles of human rights.’41 The proposed system aims to reduce both the processing time for applications42 as well as the length of time applicants will stay in reception centres before integrating into the greater community.43 It addresses previous concerns around privacy44 and placement preferences.45 Finally, it bolsters existing services which asylum seekers have a right to under the 2018 Regulations by offering additional health services46 additional supports for vulnerable people,47 educational support48 and financial support which will be determined on an individual basis.49 The switch from Direct Provision to this new system is intended to be complete by 2024.50

This proposed system is not without critique. Firstly, it did not account for the Advisory Group on Direct Provision’s recommendation to offer those already in the system for 2 years permission to remain.51 The Irish Refugee Council deemed this necessary to reduce application backlogs.52 Additionally, while the White Paper outlining the new system sets the government's intentions for future legislation, it is not legally binding. This inhibits accountability for the government if it fails to meet its proposed goals. Nonetheless, it may be seen as a step in the right direction. Collins asserts that such a

41 Department of Children, Equality, Disability, Integration and Youth, White Paper to End Direct Provision and to Establish a New International Protection Support Service (2021) 11. 42 ibid 49. 43 ibid 42. 44 ibid. 45 ibid 43. 46 ibid 55. 47 ibid 60. 48 ibid 62-3. 49 ibid 64. 50 ibid 84. 51 Department of Justice, Report of the Advisory Group on the Provision of Support including Accommodation to Persons in the International Protection Process (2020) 1. 52 Helen Donohue, ‘Govt to replace Direct Provision with international protection system’ RTÉ (Dublin, 26 Feb 2021) <www.rte.ie/news/ireland/2021/0226/1199464-direct-provision/> accessed 1 Feb 2022.

step may be attributable to increasing public awareness about the issues faced by asylum seekers and, more generally, by minorities as a whole.53

The UK and Ireland are both facing upcoming changes to their asylum systems. While the two states have an overlapping history of asylum protocol, their proposed changes could not be more different. The UK’s proposed changes would make it harder for individuals to apply for asylum. Ireland, on the other hand, has aimed to better accommodate asylum seekers. Past surveys have shown Ireland and the UK to have similar sentiments around migration and asylum.54 However, these policy changes, in addition to events such as Brexit, suggest a widening difference between the attitudes of the two countries. As the Nationality and Borders Bill continues to develop in the UK parliament and the provisions of the White Paper on Direct Provision begin to be enacted, one will be able to see these changing attitudes take shape.

53 Niamh Collins, ‘Ireland’s Refugee Deterrence Policies’ (2021) CCJHR Working Paper Series No 12/2021, 1 <www.ucc.ie/en/media/academic/law/CCJHRWPSNo12NiamhCollinsRefugeeDeterrencePolici esMarch2021(002)-1.pdf> accessed 1 Mar 2022, 28. 54 Heath and Richards (n 29) 12, 14.