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Government must opt into EU directive on asylum seekers

  • 15 Jun 2017

Move would solve legal issue of access to employment for those in direct provision

Opinion, Bryan McMahon

Irish Times, 15th June

This month marks the second anniversary since an independent working group reported to the Government on the protection process and recommended improvements to direct provision and to other supports for asylum seekers.

The working group was asked to recommend improvements which showed greater respect for the dignity of people seeking protection in Ireland and to suggest improvements to the quality of their lives while awaiting a final determination on their application. In total, the working group made 173 recommendations to the Government.

One of the most obvious reforms related to the length of time involved in processing decisions. Some applicants were waiting seven and even 10 years for decisions.

In 2015, there were 1,500 applicants in direct-provision centres waiting for determinations for five years or more. The working group recommended that there should be a single process rather than the two-stage sequential system that prevailed at the time.

To address this issue, the Government finally introduced the International Protection Act in December 2015.



To address the backlog then in the system, the working group also recommended that all persons in the system for more than five years should be fast-tracked and given some status that would allow them to remain. It also suggested that no one should remain in the system in future for more than five years.

Although the Government did not accept this recommendation, it did in fact make some practical efforts to accommodate the suggestion and an improvement resulted for these “long-stayers”.

Another key recommendation to the Government was that applicants whose applications had not been determined after nine months should be given the right to work. The working group called for this right to be included in the International Protection Bill, but the legislation enacted in 2015 merely maintained the status quo.

During the consultation process with residents in direct provision, I heard first-hand about their frustration at not being allowed to work, with one person eloquently yet pragmatically summing up his desire to work by saying: “Work offers dignity and the best means of integration and reduces the cost to the State.”

Parents were concerned that the prohibition on working limited their capacity to lead a normal family life or to be role models for their children. They spoke of wanting to support their children financially and to safeguard their future prospects.

I welcome the recent decision of the Supreme Court which found that an absolute ban on the right to work for people in the protection process is unconstitutional. As noted in the working group’s report, Ireland and Lithuania are the only European Union member states that continue to have an outright ban on working for protection applicants.

The court adjourned the matter for six months to afford the State time to make submissions on how it intends to proceed.

The working group has already considered this issue in great detail, so I would urge the Government to revisit this recommendation in the report and consider opting in to the recast EU reception directive – which sets minimum standards for the reception of asylum seekers – as a practical solution to this issue.


Children’s interests

Signing up to the directive would not only bring us closer into line with our European partners, but the directive would require the State to ensure that “the best interests of the child” are considered in important decisions relating to family reunification, a child’s well-being and social development, as well as their safety and security.

It also calls on the State to ensure that the child’s best interests are considered when deciding how to make their application for asylum. Importantly, it provides for the voice of the child to be heard in making all of these decisions.

The directive highlights the importance of children’s right to play and to access appropriate facilities in the place in which they live.

This aspect of the directive particularly resonates with me, as parents living in direct provision repeatedly told us that children did not have a separate place to play in and instead were obliged to “play in the four corners of the room”.

This led us to recommend that centres should create adequate recreational space in consultation with children and young people themselves.

When the working report was published two years ago, the hope was that the international protection process would streamline decisions and ensure that people would have to spend a minimum amount of time in reception centres.

While we are moving towards faster processing times, people still remain in the system for longer than intended.

We need to move away from institutionalisation and ensure that children do not grow up in this system.

We need to ensure that people who are seeking the State’s protection are afforded the dignity and respect that everyone deserves.

Bryan McMahon is a former High Court judge and was chairman of the working group on direct provision