The Author (2008). Published by Oxford University Press. All rights reserved.

For Permissions please email: journals.permissions@oxfordjournals.org

doi:10.1093/ijrl/een037, Advance Access Published on November 18, 2008

The Policy of Direct Provision in Ireland:

A Violation of Asylum Seekers Right
to an Adequate Standard of Housing
CLAIRE BREEN*

Abstract
This article considers Irelands policy of Direct Provision, which curtails severely the social
welfare entitlements of asylum seekers. This article sets out the rights of asylum seekers in
Ireland and explains the policy of Direct Provision. It analyses the right to adequate housing as provided for within the United Nations and the European legal frameworks. It acknowledges that such rights are subject to some limitations but argues that Irelands policy
of Direct Provision violates asylum seekers rights to an adequate standard of living, with
particular focus on the right to adequate housing and the interrelated rights to food and
health. It further argues that such limitations are discriminatory and that they undermine
the fundamental principles of equality and human dignity. The article concludes that a
correct interpretation of international and domestic law suggests that Ireland must abolish
the policy of Direct Provision and revert to according social welfare entitlements on the
basis of need rather than nationality.

1. Introduction
In 2000, Ireland introduced the policy of Direct Provision, which curtailed severely the social welfare entitlements of asylum seekers. This article briefly sets out the rights of asylum seekers in Ireland and explains
the policy of Direct Provision. It analyses the right to adequate housing
as provided for within the United Nations and the European legal frameworks. It acknowledges that such rights are subject to some limitations
but argues that Irelands policy of Direct Provision violates asylum
seekers rights to an adequate standard of living, with particular focus on
the right to adequate housing and the interrelated rights to food and
health. It further argues that current limitations are discriminatory and
that they undermine the fundamental principles of equality and human
dignity. The article concludes that a correct interpretation of international and domestic law suggests that Ireland must abolish the policy of
Direct Provision and revert to according social welfare entitlements on
the basis of need rather than nationality.

* Senior Lecturer, Law School, University of Waikato, Private Bag 3105, Hamilton, New Zealand.
Email: cbreen@waikato.ac.nz. I would like to thank Joseph B. Mannix for his assistance in the preparation for this article.

612

Claire Breen

2. The rights of asylum seekers in Ireland under the

policy of Direct Provision
Section 2 of the Refugee Act, 1996, as amended by the Immigration Act,
1999, defines a refugee as:
a person who, owing to a well founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion,
is outside the country of his or her nationality and is unable or, owing to such fear,
is unwilling to avail himself or herself of the protection of that country; or who,
not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it, 1

For the purposes of this article, asylum seekers are individuals awaiting
determination of their application for refugee status.2
Irish legislation accords a number of rights to asylum seekers, especially
with regard to housing. The origins of Direct Provision are to be found in
section 171 of the Social Welfare (Consolidation) Act, 1993, which makes
provision for supplementary welfare for every person and every dependent
of that person whose means are insufficient to meet their needs allowance.
According to section 170, these allowances can be in the form of cash or
in kind. Section 180(1) states that the direct provision of goods and services, rather than a cash payment, is to be made only in exceptional circumstances and on a case-by-case basis at the discretion of the health board
that administers the allowance. Prior to 2000, asylum seekers were able to
access the social welfare system. Nationality, or lack of Irish nationality,
was not a determining feature in the allocation of means-tested social
assistance payments.
In early 2000, the Government implemented a number of changes to its
refugee policy. The Directorate of Asylum Seeker Support and the Refugee Agency were merged into one body, the Refugee Integration Agency
(RIA), which operates from within the Department of Justice Equality and
1 The Long Title of the Refugee Act, 1996 describes it as an Act: An Act to Give Effect to the Convention Relating to the Status of Refugees done at Geneva on the 28th day of July, 1951, The Protocol
Relating to the Status of Refugees done at New York on the 31st day of January, 1967, and the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the
Member States of the European Communities done at Dublin on the 15th day of June, 1990 .
Currently, the process for seeking asylum and the determination of refugee status is governed by the
1996 Act, as amended by the Immigration Act, 1999, and the Illegal Immigrants (Trafficking Act),
2000. However, the current legislative framework is due to be overhauled with the introduction of the
Immigration, Residence and Protection Bill 2008 in Jan. 2008. According to the Minister for Justice,
Equality and Law Reform, the landmark legislation would bring together into one process the business
of determining whether a person who claims refugee status will be permitted to stay in the state. See,
<http://www.justice.ie/en/JELR/Pages/Launch%20of%20new%20Immigration%20Bill>, last accessed
11 Oct. 2008.
2 See, Refugee Act, 1996, ss 8, 9, 10, and 11, as amended by the Immigration Act 1999, which seeks
to put on a domestic footing the right to seek asylum, as contained in Art. 3 of the Convention Relating
to the Status of Refugees 1951, 189 UNTS 137 and the Protocol Relating to the Status of Refugees,
31 Jan. 1967, 606 UNTS 267 (the 1967 Protocol).

The Policy of Direct Provision in Ireland

613

Law Reform. In April 2000, the policy of Direct Provision, which was
accompanied by a separate dispersal policy, was introduced by a ministerial circular emanating from the Department of Justice, Equality and Law
Reform.3 The schemes are administered by the RIA but it is the Department, by virtue of its administration of the RIA, that enters into contracts
with proprietors of hostels, guesthouses and hotels across the country to
provide full board and accommodation for asylum seekers, contracts which
make no mention of asylum seekers rights.4
Consequently, asylum seekers are no longer regarded as being in need
of the supplementary welfare allowances. Instead, they are given a weekly
payment of 19.10 per adult and 9.60 per dependent child, plus two
exceptional needs payments of 100 per annum. Section 13 of the Social
Welfare (Miscellaneous Provisions) Act, 2003 puts the exclusion of asylum
seekers, as a group, from receiving rent allowance on a legislative footing.
As of 1 May 2004, newly arrived asylum seekers became ineligible for
these social assistance payments by virtue of the habitual residence rule
introduced by section 17 of the Social Welfare (Miscellaneous Provisions)
Act 2004. To be considered habitually resident in Ireland, and thus claim
welfare benefits, an individual has to have been residing in Ireland for two
years or more. Consequently, asylum seekers who arrived after May 2004
are largely dependent upon the weekly payments and the twice-yearly payments to pay for items such as bus fares, toiletries and other basic necessities. The current payments remain at 2000 levels although most other
social welfare payments have been increased significantly in that time.5
These provisions have resulted in many asylum seekers being forced to live
in over-crowded conditions of abject poverty since as far back as 2000.

3. The rights of asylum seekers in international law

The Convention relating to the Status of Refugees 1951 (the Refugee
Convention) forms the cornerstone of international law governing refugees and asylum seekers.6 In addition to defining who is a refugee,7 the
Refugee Convention lays down basic minimum standards for the protection of refugees as well as outlining both the rights of states and refugees
3 In Nov. 1999, the Minister for Justice, Equality and Law Reform stated the Governments intention was to introduce Direct Provision to counter a concern that Irelands social welfare scheme would
act as a pull factor for non-genuine asylum seekers, especially given that the UK was on the verge of
setting up a similar scheme. See, N. Haughey, Legal query on asylum seekers voucher system, Irish
Times, 3 Dec. 1999.
4 Free Legal Aid Centres (FLAC) Report, Direct Discrimination? An analysis of the scheme of
Direct Provision in Ireland (Dublin, 2003) 9; ECRI, Third Report on Ireland, CoE: Strasbourg, 2007,
para. 74.
5 P. OMahony, Asylum seekers face poverty in modern Ireland, 23 Nov. 2005 <http://www.
irishrefugeecouncil.ie/press05/poverty.html>, last accessed on 23 Jan. 2008.
6 Above n. 2.
7 Art. 1A(2).

614

Claire Breen

pertaining to issues such as freedom of movement, work and education.

It is open to states to determine more precisely the manner in and extent
to which such protection is to be afforded to refugees by way of national
legislation.
The interrelationship between the obligations and rights contained in
earlier treaties and those of subsequent treaties has been the subject of
some discussion. For example, Article 5 of the Refugee Convention provides, [n]othing in this Convention shall be deemed to impair any rights
and benefits granted by a contacting party to refugees apart from this Convention. There is no reference to obligations contained in other treaties.
As such, it could be argued that the meaning of Article 5 cannot be altered
by the obligations that were imposed by international human rights treaties that came into force at a later date. A consequence of this approach
would be that the broader and more detailed standard of obligations contained in later human rights treaties, such as the International Covenant
on Economic, Social and Cultural Rights (ICESCR),8 could not prevail
over the restrictive provisions of the Refugee Convention. The issue of the
interrelationship between earlier and later treaties is governed by Article
30 of the Vienna Convention on the Law of Treaties 1969 (VCLT) which
relates to the application of successive treaties relating to the same subject
matter.9 In particular, Article 30(2) provides that when a treaty specifies
that it is subject to, or that it is not to be considered as incompatible with,
an earlier or later treaty, the provisions of that other treaty prevail.
The Preamble to the Refugee Convention reaffirms the principle that
human beings shall enjoy fundamental rights and freedoms without discrimination as contained in the United Nations Charter10 and the Universal Declaration of Human Rights 1948 (UDHR).11 In addition, the
Refugee Convention recognises:
that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise
of these fundamental rights and freedoms.12

These two provisions relate to the same subject matter, as per Article
30(1) of the VCLT. Neither the earlier Refugee Convention nor the later
human rights treaties specify that they are subject to or not to be considered as incompatible with each other. Accordingly, the provisions of the
later human rights treaties ought to be incorporated into any determination of the rights of asylum seekers. Equally, the provisions of an earlier
treaty, such as the Refugee Convention, still apply but only to the extent
8 GA res. (XXI), UN GAOR 21st Sess., (Supp. No. 16), at 49, UN doc. A/6316 (1966).
9 Vienna Convention on the Law of Treaties 1969 (VCLT), UNTS, vol. 1155, 331.
10 Charter of the United Nations, 26 June 1945, 59 Stat. 1031, TS 993, 3 Bevans 1153.
11 GA res. 217A, (III) UN doc. A1810 (1948).
12 Refugee Convention, above n. 2, Preamble, para. 2.

The Policy of Direct Provision in Ireland

615

that they are compatible with the provisions of a later treaty, such as the
ICESCR, where that later treaty makes no reference that it was intended
to suspend or terminate the provisions of the earlier treaty.13 Human rights
treaties make no such reference. Rather, human rights treaties do make
reference to the fact that they are: inherent, and therefore they belong to
everybody because of their common humanity; inalienable, so that no one
can give up his or her human rights or be deprived of them by governments; and universal, and, as such, they apply regardless of distinctions
such as race, sex, language or religion or other status.
Given the broad application underpinning international human rights
law, it would be somewhat incongruous if the more generous provisions of
human rights treaties were to be regarded as excluding asylum seekers
thereby limiting the level of protection accorded to this group to the basic
standards provided for in the Refugee Convention. Similarly, an argument
for an expansive interpretation of the rights contained in the Refugee Convention may also be derived from the fact that treaty provisions often overlap. For example, the rights of refugees are provided for not only in the
Refugee Convention, but also by virtue of Article 14 of the UDHR, which
provides that everyone has the right to seek and to enjoy in other countries
asylum from persecution. Similarly, Article 13 of the International Covenant on Civil and Political Rights 1966 (ICCPR) accords protection to
aliens who are lawfully in the territory of a state party.14 Thus, the basic
standards with regard to housing contained in the Refugee Convention
may be expanded upon by other human rights instruments and processes.
3.1 Asylum seekers right to adequate housing:
the UN framework
Asylum seekers rights to adequate housing are outlined, in the first instance, by Article 21 of the Refugee Convention, which imposes a positive obligation upon the state, including all relevant public authorities,
such as municipalities, to accord to refugees the most favourable treatment possible, which should never fall below that granted to aliens generally. As such, it constitutes a standard that goes beyond the negative duty
not to discriminate against refugees.
The origins of the right to adequate housing can be located in Article
25(1) of the UDHR, which concerns the right of everyone to an adequate
standard of living for the health and well-being of the individual and his
family, which includes food, clothing, housing and medical care and necessary social services, and the right to security in the event of a lack of livelihood in circumstances beyond his control.15 This provision was expanded
13
14
15

VCLT, above n. 9, Arts. 30(3) and (4) and 59.

GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN doc. A/6316 (1966).
UDHR, above n. 11.

616

Claire Breen

by Article 5 of the International Convention on the Elimination of All

Forms of Racial Discrimination 1965 (ICERD), which places the obligation upon states parties to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the
law, as regards the enjoyment of economic, social and cultural rights and,
in particular, the right to housing.16 This right to adequate housing outlined in the UDHR reappears in Article 11(1) of the ICESCR and, once
again, states parties are obliged to take appropriate steps to ensure the
realisation of this right. 17
The meaning of the right to adequate housing, within the context of the
ICESCR, has been expanded upon by the Committee on Economic,
Social and Cultural Rights (CESCR). According to the CESCR, the right
to adequate housing:
should not be interpreted in a narrow or restrictive sense which equates it with, for
example, the shelter provided by merely having a roof over ones head or views
shelter exclusively as a commodity. Rather it should be seen as the right to live
somewhere in security, peace and dignity.18

The Committee identified at least two reasons for adopting such an

expansive interpretation. First, the right to housing is integral to other
human rights and to the fundamental principles upon which the Covenant
is premised. The inherent dignity of the human person upon which the
rights contained in the Covenant are based requires that the term housing be interpreted so as to take account of a variety of other considerations, most importantly that the right to housing should be ensured to all
persons irrespective of income or access to economic resources. Second,
the Committee stated that Article 11(1) must be read as referring not just
to housing but to adequate housing. In this regard, the CESCR referred to
the Commission on Human Settlements and the Global Strategy for Shelter to the Year 2000 which stated:
Adequate shelter means . . . adequate privacy, adequate space, adequate security,
adequate lighting and ventilation, adequate basic infrastructure and adequate
location with regard to work and basic facilities all at a reasonable cost.19

The Committee noted that the right to adequate housing is determined

in part by social, economic, cultural, climatic, ecological and other factors.
16 GA res. 2106 (XX) of 21 Dec. 1965, Art. 5(e)(iii). See also Convention on the Elimination of All
Forms of Discrimination Against Women, Art. 14(2); the Convention on the Rights of the Child 1989,
Art. 27; International Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families 1990, Art. 43; Recommendation No. 115 on Workers Housing; the UN Declaration on
Social Progress and Development; the UN Declaration on the Rights of the Child; the Vancouver Declaration on Human Settlements; the UNESCO Declaration on Race and Racial Prejudice; the Declaration
on the Right to Development, and many other texts that affirm the human right to adequate housing.
17 ICESCR, above n. 8.
18 CESCR, The right to adequate housing (Art.11 (1)): 13 Dec. 91, General Comment 4, para. 7.
19 Ibid.

The Policy of Direct Provision in Ireland

617

In terms of the current enquiry, there are a number of aspects identified

by the Committee which are particularly useful. First, there is the question
of habitability which means that inhabitants must be provided with adequate space and must protected from threats to health, structural hazards,
and disease vectors. The physical safety of occupants must be guaranteed
as well. The Committee encouraged states parties to apply comprehensively the WHOs Health Principles of Housing,20 which identify inadequate and deficient housing and living conditions as being invariably
associated with higher mortality and morbidity rates.21 Second, the
CESCR stated that adequate housing must be accessible to those entitled
to it with disadvantaged groups being accorded full and sustainable access
to adequate housing resources. In addition, discernible governmental obligations need to be developed aiming to substantiate the right of all to a
secure place to live in peace and dignity.22 Third, the Committee noted
that adequate housing must be in environmentally safe locations allowing
access to employment options, health-care services, schools, child-care
centres and other social facilities that avoid excessive demands being placed
upon the budgets of poor households.23 Fourth, the CESCR also noted
that the construction of housing, both in terms of building materials used
and the policies supporting them, must enable appropriately the expression of cultural identity and diversity of housing.24
Although international law makes provision for the right to adequate
housing and offers some explanation as to what this right entails, further
meaning can be attached to the right by reference to rights that also impact
upon the right to adequate housing. Article 11(1) of the ICESCR also
includes the rights to adequate food and the continuous improvement of
living conditions. Article 11(2) imposes the obligation to recognise that
more immediate and urgent steps may be needed to ensure, the fundamental right to freedom from hunger and malnutrition. According to the
CESCR, [T]he human right to adequate food is of crucial importance for
the enjoyment of all rights.25 The Committee has also affirmed that the
right to adequate food is indivisibly linked to the inherent dignity of the
human person and is indispensable for the fulfilment of other human rights
enshrined in the International Bill of Human Rights.26 The right to adequate food should not be interpreted in a narrow or restrictive sense which
equates it with a minimum package of calories, proteins and other specific
20
21
22
23
24
25

Ibid., para. 8. See further, WHO, Health Principles of Housing (Geneva: WHO, 1990).
General Comment 4, ibid., para. 7(d).
Ibid., para. 7(e).
Ibid., para. 7(f).
Ibid., para. 7(g).
CESCR, The right to adequate food (Art.11): 12 May 99, E/C.12/1999/5, General Comment
12, para. 1.
26 Ibid., para. 4.

618

Claire Breen

nutrients.27

Thus, the core content of the right to adequate food implies,

inter alia, [T]he availability of food in a quantity and quality sufficient to
satisfy the dietary needs of individuals, and acceptable within a given
culture.28 The requirement of cultural or consumer acceptability also
implies the need to take into account, as far as possible, perceived non
nutrient-based values attached to food and food consumption and informed
consumer concerns regarding the nature of accessible food supplies.29 In
terms of asylum seekers, the provision of three meals a day is only to be
regarded as a starting point for ensuring the right to adequate food. The
imposition of a food regime, which may take little or no account of the
non-nutrition needs of the consumer, combined with the exclusion of the
consumer from any control over his or her own diet over an extended
period of time could be seen as a violation of the right to adequate food.
Similarly, the right to health is a right that contains both freedoms and
entitlements and its effect is underpinned by other human rights. The right
to health is closely related to, and dependent upon, the realisation of other
human rights including, but not limited to, the rights to housing, food,
human dignity, non-discrimination and equality. These and other rights
and freedoms address integral components of the right to health.30
3.2 The right to adequate housing: European law
Many of the standards emanating from the UN framework are reiterated
at the European level. The European Social Charter 1961 (ESC)31 provides for a right to housing. Originally, the right to housing was indirect
and was to be found within rights that were accorded to the family by
Article 16 and to migrant workers by Article 19. Ratification of the Revised European Social Charter 1996 (the Revised Charter)32 requires
states to undertake to take measures designed to promote access to housing of an adequate standard.33 According to the European Committee
of Social Rights (ESCR), adequate housing means, a dwelling which is
structurally secure, safe from a sanitary and health point of view and not
overcrowded, with secure tenure supported by the law.34 It should possesses all basic amenities, such as water, heating, waste disposal, sanitation
27
28
29
30

Ibid., para. 6.
Ibid., para. 8.
Ibid., para. 11.
CESCR, The right to the highest attainable standard of health (Art. 12): 11 Aug. 2000,
E/C.12/2000/4, General Comment 14, para. 3.
31 European Social Charter (ETS No. 163). Art. 2(2) of the Appendix to the ESC confines the
interpretation of asylum seekers right to housing to the narrow provisions of the Refugee Convention
where the asylum seeker is from a state which is not a contracting party.
32 Revised European Social Charter, Strasbourg, 3 May 1996. The Revised Treaty is regarded as
being a treaty independent of its predecessor and designed to replace it eventually.
33 Art. 31.
34 Council of Europe, 2005, European Social Charter Digest of the Case Law of the ECSR, Mar.
2005, 110-12.

The Policy of Direct Provision in Ireland

619

facilities and electricity, and it must be suitable for the number of persons
and the composition of the household in residence.35
The European Convention on Human Rights and Fundamental
Freedoms 195036 (ECHR) does not contain a specific right to adequate
housing. However, Article 8(1) is relevant as it states, [E]veryone has the
right to respect for his private and family life, [and] his home . . .. The
meaning to be accorded to Article 8, with regard to the right to housing,
was first delineated by the European Court of Human Rights (the Court)
in Chapman v. United Kingdom in which it stated that, It is important to recall
that Article 8 does not in terms recognise a right to be provided with a
home. Nor does any of the jurisprudence of the Court acknowledge such
a right.37 However, subsequent cases have taken a broader view of Article
8. The interrelationship between the right to respect for ones home and
other rights contained in the Convention was noted in Gillow, where the
Court held that the applicants right to respect for their home was a right
which was pertinent to their own personal security and well-being. The
importance of such a right to the individual must be taken into account in
determining the scope of the margin of appreciation allowed to the
Government.38
The meaning of Article 8 was also interpreted to exclude the imposition
of intolerable living conditions upon individuals in Moldovan and Others v.
Romania.39 The applicants had been hounded from their village and homes
after their houses were burned down by a mob and they had to live in
crowded and improper conditions.40 The Court found that Article 8 was
clearly applicable41 and considered that:
the applicants living conditions in particular the severely overcrowded and
unsanitary environment and its detrimental effect on the applicants health and
well-being, combined with the length of the period during which the applicants
have had to live in such conditions and the general attitude of the authorities,
must have caused them considerable mental suffering, thus diminishing their
human dignity and arousing in them such feelings as to cause humiliation and
debasement.42

The Court has availed itself of a number of other opportunities to discuss the margin of appreciation open to states in their implementation of
the rights and obligations contained in Article 8. In Chapman43 the
35
36

Ibid., at 110.
213 UNTS, 221, no. 2889; Council of Europe, European Treaty Series, 4 Nov. 1950, no. 5;
Council of Europe, Collected Texts, Strasbourg (1987), 3-21.
37 Chapman v. United Kingdom, Judgment of 18 Jan. 2001, para. 99.
38 Gillow v. United Kingdom, Judgment of 24 Nov. 1986, at para. 55.
39 Moldovan and Others v. Romania, Judgment No. 2, 12 July 2005, Final Judgment 30 Nov. 2005.
40 Ibid., para. 103.
41 Ibid., at para. 105.
42 Ibid., at para. 110.
43 Chapman, above n. 37.

620

Claire Breen

applicant, who was a Gypsy, alleged that the refusal of planning permission to station caravans on her land and the enforcement measures implemented in respect of her occupation of her land disclosed a violation of
Article 8. In determining whether the applicants right to respect for her
home had been violated, the Court considered that the legal and social
context would be a relevant factor in determining the legitimacy of the
impugned measure that had been taken against the applicant.44 Other factors which the Court considered to be relevant included the need by
national authorities to take into account the existence, or otherwise, of
alternative accommodation.45 In the context of this case, the evaluation of
the suitability of alternative accommodation would involve a consideration of, on the one hand, the particular needs of the person concerned
his or her family requirements and financial resources and, on the other
hand, the rights of the local community to environmental protection.
According to the Court, a wide margin of appreciation should be granted
to national authorities, who were better placed to make the requisite assessment. The Court found that the applicants rights had been violated under
Article 8(1) but that such a violation was justifiable under Article 8(2) as it
was legitimate and that the interference with the applicants right was necessary in a democratic society.
The Court had previously examined complaints about the planning and
enforcement measures imposed on a Gypsy family who occupied their own
land without planning permission in Buckley v. the United Kingdom.46 In that
case, the Court acknowledged that the interests of the community had to
be balanced against the applicants right to respect for her home, a right
which the Court held to be pertinent to her and her childrens personal
security and well-being. The importance of that right for the applicant and
her family also had be taken into account in determining the scope of the
margin of appreciation allowed to the respondent state.47 The Court reaffirmed the margin of appreciation which was to be afforded to the state in
such circumstances.48 However, the Court also found that Article 8(1) had
been violated and that there was no proper justification for the serious
interference with the applicants rights and those of her family.49
It is against this background that the meaning of Article 8 in terms of
housing rights and a states margin of appreciation was discussed in Connors v. United Kingdom.50 The applicant and his family, who were Travellers,
were evicted from the site where they had lived giving rise to consequent
44
45
46
47
48
49
50

Ibid., para. 101.

Ibid., paras. 103-4.
Buckley v. United Kingdom, 25 Sept. 1996, Reports 1996-IV.
Ibid., para. 76.
Ibid., para. 94.
Ibid., at para. 95.
Connors v. United Kingdom, Judgment 27 May 2004, Final Judgment 27 Aug. 2004.

The Policy of Direct Provision in Ireland

621

difficulties in finding a lawful alternative location for their caravans, in coping with health problems and young children and in ensuring continuation
in the childrens education. According to the Court, the family was, in
effect, rendered homeless, with the adverse consequences on security and
well-being which that entailed.51 With regard to the provisions of Article
8, the Court noted that Article 8, concerns rights of central importance to
the individuals identity, self-determination, physical and moral integrity,
maintenance of relationships with others and a settled and secure place in
the community.52 According to the Court, where general social and economic policy considerations have arisen in the context of Article 8, determining the scope of the margin of appreciation would involve attaching
particular significance to the extent of the intrusion into the personal
sphere of the applicant,53 as Article 8 concerned rights of central importance to the individuals identity, self-determination, physical and moral
integrity, maintenance of relationships with others and a settled and secure
place in the community.54 Thus, the procedural safeguards available to the
individual would be especially material in determining whether the
respondent state has, when fixing the regulatory framework, remained
within its margin of appreciation. In particular, the Court had to examine
whether the decision-making process leading to measures of interference
was fair and such as to afford due respect to the interests safeguarded to the
individual by Article 8.55 According to the Court:
The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases To this
extent, there is thus a positive obligation imposed on the Contracting States by
virtue of Article 8 to facilitate the gypsy way of life 56

Thus, the jurisprudence of the Court with regard to the extent of protection afforded by Article 8 takes, as its starting point, the fact that an
applicant has a home but that the right to respect for that home has been
interfered with whereby such interference has had a negative impact on
associated rights of the applicant and his or her family. In such cases, the
question for the Court to consider has been whether such interference was
both in accordance with the law and necessary in a democratic society.
In addition, the issue of housing rights has been considered in the context of Article 1 of Protocol No. 1 to the ECHR, which provides that every
natural or legal person is entitled to the peaceful enjoyment of his
51
52
53
54
55
56

Ibid., para. 85.

Ibid., para. 82.
Ibid.
Ibid.
Ibid., para. 83.
Ibid., at para. 84.

622

Claire Breen

possessions. In addition, Article 1 provides that no one shall be deprived of

his possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law. The
rights contained in Article 1 were discussed in Radanovi
v. Croatia57 where
the Court had to balance the rights of property owners and those of refugees who required accommodation. In the process of striking this balance,
the Court recognised the rights of refugees and displaced persons within
the framework of protection afforded by the ECHR.58 It recognised the
social rights of refugees and displaced persons noting that both groups
were often socially vulnerable. Although the Court accepted that a wide
margin of appreciation was to be accorded to the Croatian authorities,
which were faced with an exceptionally difficult task because of the socially
sensitive issues involved, the exercise of the states discretion could not
entail consequences which were at variance with Convention standards.59
In this connection, the Court reiterated that a fair distribution of the social
and financial burden was required. Requisitioning the applicants flat constituted an unfair social and financial burden upon her.
It could be extrapolated from the judgment that, since the refugee in
question had to vacate the applicants flat, the issue of the right to adequate
housing had been dealt with inappropriately by the Croatian authorities,
which ought to have been seeking a more durable solution that sought to
protect the rights of all involved. In the Connors case60 the Court also gave
some consideration to the meaning to be given to Article 1 of Protocol 1.
It stated that in spheres involving the application of social or economic
policies, national authorities had a wide margin of appreciation. The
Court also stated that in spheres such as housing, which play a central role
in the welfare and economic policies of modern societies, it would respect
the legislatures judgement as to what was in the general interest, unless
that judgement was manifestly without reasonable foundation.61
In terms of Irelands membership of the European Union, the rights to
be accorded to asylum seekers are also quite limited. The issue of the right
to an adequate standard of living for asylum seekers can be found in the
Treaty of Amsterdam, which requires the Council to adopt measures on
asylum, in accordance with the Refugee Convention, including minimum
standards on the reception of asylum seekers in member states.62 European
57 Radanovi v. Croatia, Judgment of 21 Dec. 2006. C.f., James and Others v. United Kingdom, 1 Feb. 1986,
Series A, No. 98.
58 Ibid., at para. 42.
59 Ibid., para. 49.
60 Connors, above n. 50.
61 Ibid., para. 82. See also, Buckley, above n. 46, and Chapman, above n. 37, for similar consideration
of the provisions of Art. 1 of Protocol 1.
62 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the
European Communities and Certain Related Acts, Official Journal C 340, 10 Nov. 1997, Art. 63(1)(b).

The Policy of Direct Provision in Ireland

623

Council Directive 2003/9/EC, of 27 January 2003, lays down minimum

standards for the reception of asylum seekers. Unfortunately, in accordance with Article 1 of the Protocol on the position of the United Kingdom
and Ireland annexed to the Treaty on European Union and to the Treaty
establishing the European Community, Ireland is not participating in the
adoption of this Directive.63 However, the Directive refers to Article 1 of
the Charter of Fundamental Rights of the European Union, which provides, Human dignity is inviolable. It must be respected and protected.
The Directive also refers to Article 18 which guarantees the right to asylum
with due respect for the rules of the Refugee Convention and in accordance with the Treaty establishing the European Community. Thus,
although European Union law has made some provision with regard to the
rights of asylum seekers, Ireland is only bound to the extent that it simply
reiterates its obligations under the Refugee Convention. Nevertheless, Ireland, as a member of the European Union does recognise the rights,
freedoms and principles set out in the Charter.
3.3 Direct Provision: a violation of asylum seekers right to
adequate housing
Irelands policy of Direct Provision has seen the accommodation of just
under 49,000 asylum seekers since 2000. Figures from the end of March
2008 show that there are 6,800 asylum seekers in 63 hostels and hotels
across the state.64 As of the end of February 2007, 414 people had been
residing in Direct Provision for 18 to 24 months and 1,315 for more than
24 months.65 The Minister for Justice, Equality and Law Reform has strongly
contended that the treatment of asylum seekers in Ireland is, at a minimum,
on a par with the best on offer in this context anywhere in the EU.66
However, the reality of life on Direct Provision provides numerous examples of Irelands failure to protect the human rights of asylum seekers. The
following excerpt from Beyond the Pale: Asylum-Seeking Children and Social Exclusion in Ireland highlights the states failure to meet its obligations with regards
to the right to adequate food, provided for in Article 11 of the ICESCR:
This father explained how he and his wife had to ration the powdered milk for
the babies to ensure that he did not run out and that their other needs could be
63 Irelands failure to adopt the Directive is all the more significant given that the Directive contains
extensive detail as to accommodation standards for asylum seekers and it incorporates the Refugee
Convention, the Charter of Fundamental Rights of the European Union, as well as other standards of
international law.
64 Dil ireann, Parliamentary Debates, Volume 652, 17 Apr. 2008, Written Answers - Asylum
Support Services, <http://historical-debates.oireachtas.ie/D/0652/D.0652.200804170442.html>;,
last accessed 11 Oct. 2008.
65 Amnesty International: Irish Section, (2008). Action 20 - Note on Asylum Seekers and Mental
Health, <http://www.amnesty.ie/amnesty/live/irish/action/article.asp?id=4570&page=3801>, last
accessed on 11 Oct. 2008.
66 Dil ireann, above n. 64.

624

Claire Breen

met He explained, during the course of a lengthy interview, how he was compelled to ration bottle feeds to the twins as a result:
The two of them are crying now I give them half and half, I am supposed to give them
one and one (one bottle each), but I will not. If I give them like that I will die, because I will not
have anything to think of no money let them have just a little then later again I will give
them half again, it is not easy its terrible.
Two and a half hours later during the interview he stated:
Look at them now. They will not sleep now because they are not well fed. (original italics)67

Shared accommodation also proves to be of concern as up to five asylum seekers may be required to share one bedroom. One asylum seeker
has observed, [L]iving with different people you have to be very careful
we have different cultures, we have different ways of living.68 The extended
confinement of asylum seekers in crowded conditions also exposes them to
an increased risk of physical and mental illness. Existing within the environment of Direct Provision has generated feelings of powerlessness and a
lack of autonomy or control, which in turn can lead to on-going mental
health problems, such as depression. According to one consultant psychiatrist who has worked with asylum seekers, in some ways the system of
Direct Provision could do as much long-term damage to asylum seekers
mental health as the trauma from which they had fled. A similar regime in
Britain had profoundly demoralised asylum seekers, causing depression
and other mental health problems. A similar observation was made by a
specialist registrar in public health medicine at a conference on services for
asylum seekers who noted that a major issue for asylum seekers was control
over their lives and that most asylum seekers have found it difficult to go
from leading an active, productive life to one of waiting and inactivity. The
latter medical practitioner, who had conducted research on immigrants
from thirty-five countries in two Irish locations, said some 48 per cent of
the study group were found to have poor mental wellbeing.69 In a newspaper interview, one asylum seeker who had attempted to commit suicide
said:
I thought, this is the end of the world. What am I doing here? I cant go back to
my country and Im not even allowed to stay here. What do I do? The best solution is to kill myself and just get out of this cruel world.
67 B. Fanning et al., Beyond the Pale: Asylum-Seeking Children and Social Exclusion in Ireland, research on
behalf of the Irish Refugee Council, Dublin 2001, at 37. See also, Refugee claims his wife starved to
death, Irish Times, 22 Jan. 2007.
68 Nasc, The Irish Immigrant Support Centre (2008), Cuan Cinnte? (A Safe Harbour?): Nascs
Campaign on the Asylum/Protection System and Direct Provision, <http://www.nascireland.org/
pages/policy/direct_prov_policy.htm>.
69 See, P. OMahony, Irelands Asylum System Still a Shambles?, working notes, Reflection and
Analysis on Social and Economic Issues, Feb 2007, 4.

The Policy of Direct Provision in Ireland

625

Youre not allowed to work. Youre not allowed go to school even if youre interested in a course you wont be able to go into it. What kind of lifestyle is that?
Were just fading away.70

Such observations not only clearly illustrate the complexity of the right
to adequate housing and its interrelationship with other human rights such
as the right to health, they are also illustrative of Irelands failure to grasp
this complexity, thus placing it in violation of the raft of international
human rights obligations that it has undertaken, stemming from Article
25(1) of the UDHR through to Article 11 of the ICESCR and the latters
expansive interpretation by the CESCR.
The long-term effect on children, many of whom would never have
seen a parent go out to work, nor indeed cook a family meal, remained to
be seen.71 Moreover, the Ombudsman for Children has stated that:
[V]ictims of trafficking, and indeed unaccompanied minors generally, receive a
lower level of protection and assistance than Irish children in care, In total
more than 300 unaccompanied minors seeking asylum have gone missing from
State care over the past five years.72

If the right to adequate housing was viewed purely from the perspective
of having a roof over ones head, then the policy of Direct Provision would
meet the basic needs of Irelands asylum seekers. However, the holistic
view required of international standards emanating both from the UN and
Europe suggests that Irelands current approach to meeting asylum
seekers rights to adequate housing, food, and health is severely lacking.
Asylum seekers in Ireland run the risk of malnourishment, physical
and mental health problems and social exclusion, which, as demonstrated
in the following section, raises concern about racial prejudice and
xenophobia.
However, as the jurisprudence of the European Court demonstrates,
states do have a margin of appreciation in the implementation of the
human rights obligations. The jurisprudence of the Court suggests that
Ireland is under no obligation to provide a home, either to its own nationals
or to asylum seekers. However, this lack of obligation cannot be interpreted
as permitting the imposition of intolerable living conditions upon individuals. Where it is alleged that Article 8 has been violated, the starting point
for consideration is whether actions of the state do in fact constitute a violation of the right to respect for the applicants home and whether such interference can be justified as falling within the states margin of appreciation.
70 R. Mac Cormaic. No mans land where you cannot work and must live on 19 a week, Irish
Times, 6 June 2007.
71 See, OMahony, above n. 5, 4. See also, Health and safety risks exposed in asylum centres, Irish
Times, 31 Oct. 2007; Health at risk over language barriers, Irish Times, 30 Jan. 2007; Irish Refugee
Council (2001), Direct Provision and Dispersal - 18 Months On (Dublin: IRC).
72 C. OBrien, Failings of hostels for trafficked children raised, Irish Times, 3 July 2007.

626

Claire Breen

Accordingly, a balance has to be struck between the rights of the applicant

and those of the respondent state. In this regard, the views of the European
Commission Against Racism and Intolerance (ECRI) on of the effect of
the policy of Direct Provision upon asylum seekers rights is informative. In
response to a number of concerns expressed about the Direct Provision
system, in particular with regard to the fact that the
19.10 per week provided to asylum seekers for personal expenses has remained unchanged
since 2001, the Commission recommended that the allowance provided to
asylum seekers be equality and poverty proofed. It also encouraged the
authorities to continue with their harmonisation of the management of the
Direct Provision system and their review of the complaints procedure. The
ECRI recommended that this process should also take into account concerns expressed about the current operation of the policy and that alternatives to the Direct Provision system be considered.73
Human rights law, both that of the UN and the European system, recognises that many rights are subject to limitation. However, the question
that remains to be answered is whether such limitations, as they are applied
to asylum seekers right to adequate housing, are legitimate, necessary and
proportionate. In other words, are they justifiable?

4. Direct Provision: legitimate differential treatment

or discrimination?
In seeking to determine whether limitations on the rights of asylum seekers are justifiable, a further question must be asked and that is whether
the aforementioned basic living standards, and their ensuing difficulties,
constitute different treatment between nationals and non-nationals which
is legitimate or whether such treatment cannot be justified and thus constitutes discrimination.
4.1 Asylum seekers right to equality and non-discrimination
in international law
Article 3 of the Refugee Convention prohibits discriminatory conduct
only to the extent that it is based upon race, religion or country of origin.
However, the Preamble to the Convention refers to the UN Charter and
the UDHR as having affirmed the principle that human beings shall
enjoy fundamental rights and freedoms without discrimination and the
manifestation by the UN of, its profound concern for refugees having
endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms. Accordingly, the Refugee Convention is
very firmly rooted within the broader framework of human rights law.
73 ECRI (2007), Third Report on Ireland, CoE: Strasburg, <http://www.coe.int/t/e/human_rights/
ecri/1-ECRI/2-Country-by-country_approach/Ireland/Ireland_CBC_3.asp#TopOfPage>, last accessed
30 Jan. 2008, paras. 74-6.

The Policy of Direct Provision in Ireland

627

Thus, the rights and obligations contained in international human rights

law, since they apply to all people regardless of status, must apply equally
to refugees and asylum seekers.74
The test for non-discrimination contained in the Refugee Convention is
set at a basic minimum and constitutes two alternatives. One, refugees are
accorded either the same treatment as nationals of a country in relation to
rationing, elementary education, public relief, and social security. Two,
refugees are to be treated in a manner as favourable as possible or, at a
minimum, not less favourably than that accorded to aliens generally, in
relation to employment, housing and education. Given that the protection
afforded by asylum seekers under international refugee law is limited, especially with regard to the protection of their economic and social rights,
regard ought to be had to international human rights law which applies to
everyone without distinction.
International human rights law has broad definitions of discrimination
stemming from the UDHR, which provides, All human beings are born
free and equal in dignity and rights75 and its mandate of equal treatment,
without distinction of any kind such as birth or other status.76 The
Preambles to both Covenants state that their rights are to be extended to
everyone as well as recognising the inherent dignity77 and the equal and
inalienable rights of all members of the human family78 where such rights
derive from the inherent dignity of the human person.79 Article 2(2) of
the ICESCR, echoing a similar provision in Article 2(1) of the ICCPR,
prohibits discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or
other status. Article 26 of the ICCPR prohibits any discrimination and
guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
These provisions have been expanded upon by the Committee on
Human Rights (HRC).80 In general, non-nationals such as asylum seekers
74 Executive Committee of the High Commissoners Programme 52nd Session, Note on International Protection, A/AC.96/951, 13 Sept. 2001.
75 Art. 1.
76 Art. 2.
77 ICCPR, above n. 14, Preamble, para. 1. ICESCR, above n. 8, Preamble, para. 1.
78 Ibid.
79 Ibid., para. 2.
80 CCPR, General Comment No. 18: Non-discrimination: 10 Nov. 89. General Comment 18 states
at para. 6, the term discrimination should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status, and which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of
all rights and freedoms. The non-exhaustive nature of the list provided in Art. 26 ICCPR means that the
pursuit of an action alleging discrimination by the state is open to citizens and non-nationals alike. See
also, CCPR, General Comment 3: Implementation at the national level (Art. 2), 29 July 81.

628

Claire Breen

who may find themselves in the territory or subject to the jurisdiction of a

state party (ought to) benefit from the rights guaranteed in human rights
treaties without discrimination. In its General Comment on the position
of aliens under the ICCPR the HRC noted that the Covenant does not
recognise the right of aliens to enter or reside in the territory of a state
party. It is, in principle, a matter for the state to decide who it admits to its
territory. However, the General Comment stresses that, in certain circumstances an alien may enjoy the protection of the Covenant even in
relation to entry or residence, for example, when considerations of nondiscrimination, prohibition of inhuman treatment and respect for family
life arise.81 The HRC has also stressed the prohibition of discrimination
concerning aliens enjoyment of the Covenants rights. For example, if a
state provides special public support, in cash payments or any other benefits, to homeless persons, pregnant women, families with disabled children,
or low-income students, asylum seekers should be entitled to those benefits
under the same conditions as nationals. Any unnecessary or unreasonable
differentiation between nationals and asylum seekers would amount to discrimination. Therefore, a state party would have to justify its actions under
Article 2(1) of the ICCPR.
Similar considerations arise in relation to Article 2 of the ICESCR. Differential treatment would have to be justified by reference to Article 482 as
seeking to reduce numbers of asylum seekers and/or the number of bogus
asylum claims, or seeking to discourage those individuals who have already
lodged their claims from pursuing such claims. With regard to the subsistence rights of asylum seekers, which includes the right to adequate housing, the ICESCR allows for a degree of reasonable differentiation between
nationals and non-nationals83 but it has been argued that:
such differentiation and restrictions, including with regard to the right to housing,
should not be applied in the case of refugees (even in developing States) who
should instead be granted treatment as favourable as possible (i.e. as nationals or
permanent residents) given their special status.84

The CESCR has called upon states to ensure that comprehensive legislation on asylum seekers is adopted and that their economic, social and
cultural rights are duly taken into account.85
81 CCPR, General Comment No. 15: The position of aliens under the Covenant, 11 Apr. 86,
para. 5.
82 In addition, the requirement contained in Art. 4 of the ICESCR provides that states may subject
such rights only to such, limitations as are determined by law only in so far as this may be compatible
with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
83 See, General Comment No. 4, above n. 21, paras. 172-3.
84 Ibid., para. 172.
85 Concluding Observations of the Committee on Economic, Social and Cultural Rights: Italy, 14
Dec. 2004, E/C.12/1/Add.103, paras. 21, 42. See also, Concluding Observations of the Committee
on Economic, Social and Cultural Rights: Germany, 24 Sept. 2001, E/C.12/1/Add.68, paras. 16, 34.

The Policy of Direct Provision in Ireland

629

Article 1(2) of ICERD states that, this Convention shall not apply to
distinctions, exclusions, restrictions or preferences made by a state party to
this Convention between citizens and non-citizens. Similarly, in other
human rights instruments differential treatment is permissible but only to
the extent to which it conforms with the principle of non-discrimination
that underpins all human rights instruments. The Committee on the Elimination of All Forms of Racial Discrimination (CERD) has expanded upon
the interrelationship between the prohibition upon discrimination and the
enjoyment of economic, social and cultural rights of asylum seekers with
its statement that:
differential treatment based on citizenship or immigration status will constitute
discrimination if the criteria for such differentiation, judged in the light of the
objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.86

In terms of European human rights treaties, both the Preamble and

Article E of the ESC prohibit discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or
other status. Article 1 of the ECHR reiterates the language of the UN
treaties with its guarantee that the rights contained in the Convention are
to be secured to everyone.87 Equally, Article 14 repeats the theme of nondiscrimination with its statement that, the rights and freedoms set forth in
this Convention shall be secured without discrimination on any ground
. Furthermore, Protocol No. 12 to the ECHR is dedicated to the general prohibition of discrimination.88 The EU Charter89 goes further as its
Preamble states that the European Union, is founded on the indivisible,
universal values of human dignity, freedom, [and] equality .90 The significance of human dignity is highlighted in Article 1 which states that,
Human dignity is inviolable. It must be respected and protected. Article
21(1) of the Charter also prohibits discrimination on a wide range of
grounds.
In spite of the fact that the right to equality of treatment underpins all
human rights instruments, this right is not absolute and regard must be
had for the difference between legitimate differential treatment and illegitimate differential treatment. Thus, many of the provisions regarding

86
87

General Recommendation No. 30: Discrimination Against Non Citizens, 1 Oct. 2004, para. 4.
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213
UNTS, 221, no. 2889; Council of Europe, European Treaty Series, 4 Nov. 1950, no. 5; Council of
Europe, Collected Texts, Strasbourg (1987), 3-21.
88 Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, ETS No. 177.
89 Charter of Fundamental Rights of the European Union, 2000/c 364/01 (2000).
90 Preamble, EU Charter, ibid., at para. 2.

630

Claire Breen

equal treatment are subject to provisos which recognise the need for differential treatment in order to avoid discrimination. For example, Article
G(1) of the ESC permits restrictions to be attached to the right to equal
treatment, but only those, such as are prescribed by law and are necessary
in a democratic society for the protection of the rights and freedoms of
others or for the protection of public interest, national security, public
health, or morals.91 One of the clearest provisos regarding the limitations
that may be put upon rights is to be found in the ECHR, with many Articles stating that the right is subject to limitation only:
except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights and freedoms of others.92

It is these types of limitations that form the bases of enquiries into

whether the limitations in question are legitimate or illegitimate. To that
end, the European Court of Human Rights stated that:
A Difference in treatment is discriminatory if it has no reasonable justification:
that is, if it does not pursue a legitimate aim, or there is not a reasonable relationship of proportionality between the means employed and the aim sought to be
realised.93

Consequently, differential treatment will only constitute discrimination

if it places a disproportionate burden on the group in question and only
if this burden cannot be justified. That leaves the courts with the issue of
determining what is justifiable or legitimate and whether there is no alternative but to adopt unequal treatment or alternatively it may choose to
accept an apparently rational explanation for the unequal treatment.94
The difficulty with establishing discrimination against asylum seekers is
that there is no prohibition on the differential treatment of asylum
seekers as a category per se. States have a right to distinguish between
nationals and non-nationals or aliens. However, such treatment must be
legitimate and is often legitimised with regard to the need to preserve
state sovereignty.95 However, state sovereignty must recognise the inherent dignity of the human person, which serves as the basis for equality
where, [d]ignity is an irreducible minimum96 so that [e]quality
91
92

ESC, above n. 31.

See, e.g., Art. 8 (right to respect for private and family life) and Art. 9 (right to freedom of
thought, conscience and religion).
93 Belgian Linguistic Case (No. 2) Series A No 6 (1968) 1 EHRR 252, at para. 10; Marckx v. Belgium
Series A No 31 91979) 2 EHRR 330, at para. 33.
94 S. Fredman The Age of Equality in S. Fredman and S. Spencer (eds.), Age as an Equality Issue:
Legal and Policy Perspectives (Hart, Oxford 2003), 21-69, at 60.
95 See Laurentiu v. Minister for Justice [1999] 4 IR 27.
96 Fredman, above n. 94, at 45.

The Policy of Direct Provision in Ireland

631

based on dignity must enhance rather than diminish the status of

individuals.97
4.2 Asylum seekers right to equality and non-discrimination
in domestic law
Irelands attitude to asylum seekers and the ensuing problems have come
to the attention of human rights monitoring bodies such as CERD, which
expressed its concern at the possible implications of the policy of dispersal of and Direct Provision for asylum seekers with regard to Article 3 of
that Convention. Consequently, the Committee encouraged the state
party to take all necessary steps with a view to avoiding negative consequences for individual asylum seekers and to adopt measures promoting
their full participation in society.98 Although Ireland has ratified all of the
UN treaties referred to in the preceding sections, the provisions of the
treaties have limited impact within the domestic legal sphere because
only some of the international legal provisions have been incorporated
into Irish domestic law and, in some instances, Ireland has entered reservations to the treaties in order to reassert the supremacy of the Irish
Constitution.99
In terms of European human rights protection, not only has Ireland
undertaken obligations under the European Convention in the international sphere, it has also incorporated the Convention into domestic law by
virtue of the European Convention on Human Rights Act, 2003, and, as
the previous section indicates, the reality behind the scheme of Direct Provision may well constitute the imposition of intolerable living conditions,
in violation of Article 8(1) and/or Article 1 of Protocol 1, that breach the
margin of appreciation open to states and are not justifiable under Article
8(2) and/or Article 1 of Protocol 1. As the case law from the European
Court indicates, the first step in determining whether a states actions fall
within its margin of appreciation is to determine whether the provision is
in accordance with the law.
97
98

Ibid.
Consideration of Reports Submitted by States Parties under Art. 9 of the Convention, Concluding Observations of the Committee on the Elimination of Racial Discrimination, Ireland, CERD/C/
IRL/CO/2, 14 Apr. 2005. Moreover, the European Committee of Social Rights which noted from the
Second report of the European Commission against Racism and Intolerance, CRI (2002) 3, on Ireland, adopted on 22 June 2001, that there existed a certain degree of prejudice and intolerance towards
persons of immigrant origin, asylum seekers and refugees: Council of Europe: European Social Charter (Revised) European Committee of Social Rights Conclusions 2004 (Ireland). See also, European
Commission Against Racism and Intolerance (1997), Report on Ireland (Strasbourg: Council of
Europe).
99 Bunreacht na hEireann (Constitution of Ireland), Art. 29. The Committee on ESC rights has
expressed regret that Ireland has not yet undertaken any measures with regard to the Committees
1999 recommendation concerning the inconsistency of Art. 40.1 of the Constitution on equality
before the law with the principle of non-discrimination as set out in Arts. 2 and 3 of the Covenant.
See, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Ireland,
5 June 2002, E/C.12/1/Add.77 (Concluding Observations/Comments), para. 16.

632

Claire Breen

Although Ireland has relied upon ministerial policy and legislation to

cut back on the rights of asylum seekers, it is possible to argue that such
measures are a violation of the Irish Constitution. Article 40.1 of the Irish
Constitution states, [A]ll citizens shall, as human persons, be held equal
before the law (emphasis added). Article 40.1 continues with the proviso
that this guarantee does not mean that the state cannot have due regard to
differences of capacity, physical and moral, and of social function. Similarly, Article 40.3.1 of the Constitution provides, [T]he state guarantees in
its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. The identification of rights to be
accorded to Irish citizens has formed the basis for the distinction that has
been drawn by the Irish Courts between citizens and non-nationals on
numerous occasions. This distinction was reiterated by the Supreme Court
in Lobe, Osayande and Others v. Minister for Justice, Equality and Law Reform.100 In
canvassing previous case law Keane CJ referred to, inter alia, the judgment
of Gannon J in Osheku v. Ireland in which he stated:101
That it is in the interests of the common good of a State that it should have control
of the entry of aliens, their departure, and their activities and duration of stay
within the State is and has been recognised universally and from earliest times.
There are fundamental rights of the State itself as well as fundamental rights of
the individual citizens, and the protection of the former may involve restrictions
in circumstances of necessity on the latter.

However, much of the discussion on Lobe and earlier cases focused on

the right to be in Ireland which is somewhat different to implementing the
economic and social rights of asylum seekers in Ireland undergoing the
asylum process.
Arguably, the intolerable living conditions of asylum seekers, both in
themselves and by virtue of the fact that they violate the fundamental right
to dignity, constitute a violation of the fundamental and inalienable right
referred to in Article 40.1. That notion that the fundamental right to dignity is to underpin any determination of equality and/or the justifiability
of differential treatment can be seen in the Supreme Court decision of
Quinns Supermarket v. Attorney General, where Walsh J stated, in relation to
Article 40.1:
. . . this provision is not a guarantee of absolute equality for all citizens in all circumstances but is a guarantee of equality as human persons and (as the Irish text
of the constitution makes quite clear) is a guarantee related to their dignity as
human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious
100 [2003] IESC 3, 23 Jan. 2003, <http://www.bailii.org.ezproxy.waikato.ac.nz:2048/ie/cases/
IESC/2003/3.html>, last accessed 30 Jan. 2007.
101 [1986] IR 733, 746.

The Policy of Direct Provision in Ireland

633

background, are to be treated as the inferior or superior of other individuals in the

community.102

Thus, the fundamental right to equality is cast broader than a right

stemming from Irish citizenship. It is a right that stems from ones status as
a human being and it acts to prohibit any differential treatment which is
based on attribute or background where such treatment serves to undermine the dignity of that individual. Article 40.1 identifies some of the bases
for differential treatment, qualifications which have been subject to some
judicial consideration. According to Walsh J, speaking obiter, in The State
(Nicolau) v. An Bord Uchtala:
Article 40.1 is not to be read as a guarantee or undertaking that all citizens shall
be treated by law as equal for all purposes, but rather as an acknowledgement of
the human equality of all citizens and that such equality shall be recognised in the
laws of the State. The section itself [in its second sentence] recognises that inequality may or must result from some special abilities or from some special need
and it is clear that the Article does not either envisage or guarantee equal measure
in all things to all citizens.103

The requirement for differential treatment to promote equality was

identified by Keane CJ in Re Planning and Development Bill 1999.104 In Lowth
v. The Minister for Social Welfare,105 Hamilton CJ, in delivering the judgment
of the Court, cited with approval the judgment of Barrington J in Brennan
v. Attorney- General where he said:
Therefore it would appear that there is no unfair discrimination provided every
person in the same class is treated the same way. . . . No doubt this is true, but it
might be prudent to express, what is perhaps implied in it, that the classification
must be for a legitimate legislative purpose, that it must be relevant to that purpose, and that each class must be treated fairly.106

The question is whether the protection of the common good constitutes

a legitimate purpose for treating asylum seekers differently to citizens or
others lawfully resident in Ireland in terms of Direct Provision and the
assessment of social welfare entitlements. In Re Illegal Immigrants (Trafficking)
Bill the Supreme Court had to consider, inter alia:
whether section 5 of the Bill imposed conditions or restrictions on the exercise of
a right by a certain category of non-nationals in a manner that is unfair, arbitrary
or invidious so as to constitute unequal treatment within the meaning of Article
102
103
104
105
106

[1972] IR 1, at 13-14.
[1966] IR 567, 639.
[2000] 2 IR 321, at 357.
[1998] IR 321.
Lowth, ibid., at 341; Brennan [1983] LRM 419 (emphasis added).

634

Claire Breen

40.1 or whether the same is justified by objective reasons other than the mere fact
that they affect only that category of non-nationals.107

In response to that question, the Court reiterated the fact that nonnationals enjoy a constitutional right to equal treatment, and in particular the constitutional right of access to the Courts and fairness of
procedures in the Courts, [is to be] enjoyed by non-nationals and citizens
alike.108 In that case, the Supreme Court found that any limitations on
asylum seekers rights were justifiable and therefore were constitutional
on the basis that they served a legitimate public policy objective of seeking to bring about at an early stage legal certainty as regards the administrative decisions in questions. According to the Court, the same
considerations had to apply to the substantial grounds requirement and
the limitation on the right of appeal to the Supreme Court.109 The legitimate bases for limiting the fundamental rights contained in Article 40.1,
as they relate to the differential treatment currently experienced by asylum seekers in the manner of the provision of housing and the limited
provision of welfare services in Ireland, remain to be determined. Thus,
whilst it may be legitimate to differentiate between nationals and nonnationals in terms of immigration law, the nature and consequences of
the differential treatment itself must be legitimate, that is, it must be
based in law and it much achieve a significant objective by rational and
proportionate means.
International and national law recognises the need to observe state sovereignty and having due regard to Irelands immigration system in preserving that right serves an important and significant objective. The
establishment of such an objective gives rise to a series of further questions
that must be asked in order to determine whether the means chosen are
reasonable and demonstrably justified. A proportionality test must be formulated in which three further requirements must be satisfied. First, the
measures adopted must be rationally connected to the objective. Consequently, where distinctions are adopted such measures must be carefully
designed to achieve the objective in question. They must not be arbitrary,
unfair or based on irrational or negative stereotypes, such as those that
might suggest that the claims of those seeking asylum are largely bogus,110
are designed to rip off Irelands generous social welfare system,111 and
emanate from international gangs.112
107 In the Matter of Article 26 of the Constitution and Section 5 and Section 10 of the Illegal Immigrants
(Trafficking Bill 1999), [2000] 2 IR 321, para. 54.
108 Ibid.
109 Ibid., para. 56-7.
110 K. Doyle, McDowell meets UN over bogus asylum claims, Irish Times, 19 Nov. 2003.
111 M. Donohoe, Callely calls for tough line on asylum-seekers, Irish Times, 19 Nov. 1999.
112 M. Donohoe, ODonoghue may introduce smart card for asylum seekers, Irish Times, 20 Oct.
1999.

The Policy of Direct Provision in Ireland

635

With regards to the second and third requirements of proportionality,

the effects of the Direct Provision policy should impair as little as possible
the right or freedom identified above. Again, these requirements are to be
linked back to the need for carefully-designed measures where rights and
freedoms may be impaired but only to the extent to which such impairment
satisfies the important and significant objective of offering protection to
and providing for asylum seekers, particularly those that are in line with
Irelands international legal obligations. The distinctions that are drawn
between nationals and non-nationals may, in the first instance, constitute
predictable and objectively applicable standards. However, such distinctions must be regarded as a starting point for analyses only as the effectiveness and impact of the Direct Provision policy remain to be considered in
its entirety.
With regard to the policy of Direct Provision, based as it is upon Ministerial circular, there is no legislative basis for such limitations. However,
other limiting provisions, such as the Habitual Residence rule, do have
their basis in domestic legislation which is subject to domestic measures
prohibiting discrimination. With regard to the argument that differential
treatment must be in accordance with the law or, in the alternative, must
not be prohibited by the law, section 3(1) of the Equal Status Act 2000
defines discrimination as the less favourable treatment of one person than
another person on one of nine grounds enumerated in section 3(2), which
includes in section 3(2)(h), that they are of different race, colour, nationality or ethnic or national origins (the ground of race). In particular, section 4(6)(c) of the Equal Status Act 2000 prohibits discrimination in the
provision of, accommodation or any services or amenities related to
accommodation. These provisions can be regarded as prohibiting direct
discrimination in terms of the right to adequate housing on the grounds of
race. The Act does not refer to the category of asylum seekers itself as a
prohibited ground of discrimination. As a result, an asylum seeker would
have to establish that the less favourable treatment was as a consequence
of his or her categorisation as being of particular race or national or ethnic
origin. However, discrimination is not confined to measures that directly
target particular categories of persons. The concept of indirect discrimination prohibits measures that have as their impact disproportionately
negative consequences for that person or group of persons. Consequently,
it could be argued that the policy of Direct Provision has a disproportionately negative impact of individuals whose race, ethnicity, or nationality is
other than Irish. Even if there was a legislative basis for the policy, such a
basis would not automatically confer legitimacy upon the limiting provisions, as such provisions must also be rational and must be proportionate
to the aim to be achieved.113
113

See, e.g., Belgian Linguistic Case (No.2), above n. 93.

636

Claire Breen

5. Conclusion
In order for human rights violations to be redressed they first have to be
identifiable. This article has sought to identify potential violations of
international and domestic law which are violated by Irelands current
policy of Direct Provision, including, the rights to an adequate standard
of living, adequate housing, and dignity. In addition to the violation of
these rights it can be argued that the policy of Direct Provision also violates the right to equal treatment. By virtue of its ratification of various
human rights treaties, Ireland has undertaken to respect and ensure such
rights. Therefore, any right claimed by the Irish state to control its borders by way of an immigration system must be balanced with the obligation to ensure basic human rights of those within the Irish immigration
system. Accordingly, any differences in treatment must be justified.
Asylum seekers have a right to adequate housing. Moreover, the interrelated nature of international human rights law may mean that a violation of the right to adequate housing can in turn result in a violation of
other rights, such as the right to be treated with dignity, the right to equality and non-discrimination, the right to respect for private and family life,
to adequate food, and to the highest attainable standard of physical and
mental health. Any limitations placed upon these rights must also be justified. They must have a significant objective with the limiting measures
designed to achieve this objective being rational and proportionate in
nature. Irelands policy of Direct Provision fails to meet these criteria.