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The Author (2008). Published by Oxford University Press. All rights reserved.For Permissions please email: [email protected]:10.1093/ijrl/een037, Advance Access Published on November 18, 2008

The Policy of Direct Provision in Ireland:A Violation of Asylum Seekers Rightto an Adequate Standard of Housing

CLAIRE BREEN*

AbstractThis article considers Irelands policy of Direct Provision, which curtails severely the socialwelfare entitlements of asylum seekers. This article sets out the rights of asylum seekers inIreland and explains the policy of Direct Provision. It analyses the right to adequate hous-ing as provided for within the United Nations and the European legal frameworks. It ac-knowledges that such rights are subject to some limitations but argues that Irelands policyof Direct Provision violates asylum seekers rights to an adequate standard of living, withparticular focus on the right to adequate housing and the interrelated rights to food andhealth. It further argues that such limitations are discriminatory and that they underminethe fundamental principles of equality and human dignity. The article concludes that acorrect interpretation of international and domestic law suggests that Ireland must abolishthe policy of Direct Provision and revert to according social welfare entitlements on thebasis of need rather than nationality.

1. IntroductionIn 2000, Ireland introduced the policy of Direct Provision, which cur-tailed severely the social welfare entitlements of asylum seekers. This ar-ticle briefly sets out the rights of asylum seekers in Ireland and explainsthe policy of Direct Provision. It analyses the right to adequate housingas provided for within the United Nations and the European legal frame-works. It acknowledges that such rights are subject to some limitationsbut argues that Irelands policy of Direct Provision violates asylum

seekers rights to an adequate standard of living, with particular focus onthe right to adequate housing and the interrelated rights to food andhealth. It further argues that current limitations are discriminatory andthat they undermine the fundamental principles of equality and humandignity. The article concludes that a correct interpretation of interna-tional and domestic law suggests that Ireland must abolish the policy ofDirect Provision and revert to according social welfare entitlements onthe basis of need rather than nationality.

* Senior Lecturer, Law School, University of Waikato, Private Bag 3105, Hamilton, New Zealand.Email: [email protected]. I would like to thank Joseph B. Mannix for his assistance in the prepa-ration for this article.


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2. The rights of asylum seekers in Ireland under thepolicy 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 habit-ual 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.2Irish legislation accords a number of rights to asylum seekers, especially

with regard to housing. The origins of Direct Provision are to be found insection 171 of the Social Welfare (Consolidation) Act, 1993, which makesprovision for supplementary welfare for every person and every dependentof that person whose means are insufficient to meet their needs allowance.According to section 170, these allowances can be in the form of cash orin kind. Section 180(1) states that the direct provision of goods and serv-ices, rather than a cash payment, is to be made only in exceptionalcircum-

stances and on a case-by-case basis at the discretion of the health boardthat administers the allowance. Prior to 2000, asylum seekers were able toaccess the social welfare system. Nationality, or lack of Irish nationality,was not a determining feature in the allocation of means-tested socialassistance payments.

In early 2000, the Government implemented a number of changes to itsrefugee policy. The Directorate of Asylum Seeker Support and the Refu-gee 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 Con-vention Relating to the Status of Refugees done at Geneva on the 28th day of July, 1951, The ProtocolRelating to the Status of Refugees done at New York on the 31st day of January, 1967, and the Conven-tion Determining the State Responsible for Examining Applications for Asylum Lodged in one of theMember 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 the1996 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 theImmigration, 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 businessof determining whether a person who claims refugee status will be permitted to stay in the state. See,,last accessed

11 Oct. 2008.2 See, Refugee Act, 1996, ss 8, 9, 10, and 11, as amended by the Immigration Act 1999, which seeksto put on a domestic footing the right to seek asylum, as contained in Art. 3 of the Convention Relatingto 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).
http://www.justice.ie/en/JELR/Pages/Launch%20of%20new%20Immigration%20Billhttp://www.justice.ie/en/JELR/Pages/Launch%20of%20new%20Immigration%20Billhttp://www.justice.ie/en/JELR/Pages/Launch%20of%20new%20Immigration%20Billhttp://www.justice.ie/en/JELR/Pages/Launch%20of%20new%20Immigration%20Bill


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613The Policy of Direct Provision in Ireland

Law Reform. In April 2000, the policy of Direct Provision, which wasaccompanied by a separate dispersal policy, was introduced by a ministe-rial circular emanating from the Department of Justice, Equality and Law

Reform.3

The schemes are administered by the RIA but it is the Depart-ment, by virtue of its administration of the RIA, that enters into contractswith proprietors of hostels, guesthouses and hotels across the country toprovide full board and accommodation for asylum seekers, contracts whichmake no mention of asylum seekers rights.4

Consequently, asylum seekers are no longer regarded as being in needof the supplementary welfare allowances. Instead, they are given a weeklypayment of 19.10 per adult and 9.60 per dependent child, plus twoexceptional needs payments of100 per annum. Section 13 of the Social

Welfare (Miscellaneous Provisions) Act, 2003 puts the exclusion of asylumseekers, as a group, from receiving rent allowance on a legislative footing.As of 1 May 2004, newly arrived asylum seekers became ineligible forthese social assistance payments by virtue of the habitual residence ruleintroduced by section 17 of the Social Welfare (Miscellaneous Provisions)Act 2004. To be considered habitually resident in Ireland, and thus claimwelfare benefits, an individual has to have been residing in Ireland for twoyears or more. Consequently, asylum seekers who arrived after May 2004are largely dependent upon the weekly payments and the twice-yearly pay-ments to pay for items such as bus fares, toiletries and other basic necessi-ties. The current payments remain at 2000 levels although most othersocial welfare payments have been increased significantly in that time.5These provisions have resulted in many asylum seekers being forced to livein over-crowded conditions of abject poverty since as far back as 2000.

3. The rights of asylum seekers in international lawThe Convention relating to the Status of Refugees 1951 (the RefugeeConvention) forms the cornerstone of international law governing refu-

gees and asylum seekers.6

In addition to defining who is a refugee,7

theRefugee Convention lays down basic minimum standards for the protec-tion 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 inten-tion was to introduce Direct Provision to counter a concern that Irelands social welfare scheme wouldact as a pull factor for non-genuine asylum seekers, especially given that the UK was on the verge ofsetting up a similar scheme. See, N. Haughey, Legal query on asylum seekers voucher system, IrishTimes, 3 Dec. 1999.

4Free Legal Aid Centres (FLAC) Report, Direct Discrimination? An analysis of the scheme ofDirect 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 ,last accessed on 23 Jan. 2008.

6 Above n. 2.7Art. 1A(2).
http://www.irishrefugeecouncil.ie/press05/poverty.htmlhttp://www.irishrefugeecouncil.ie/press05/poverty.htmlhttp://www.irishrefugeecouncil.ie/press05/poverty.htmlhttp://www.irishrefugeecouncil.ie/press05/poverty.htmlhttp://www.irishrefugeecouncil.ie/press05/poverty.htmlhttp://www.irishrefugeecouncil.ie/press05/poverty.html


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pertaining to issues such as freedom of movement, work and education.It is open to states to determine more precisely the manner in and extentto which such protection is to be afforded to refugees by way of national

legislation.The interrelationship between the obligations and rights contained inearlier treaties and those of subsequent treaties has been the subject ofsome discussion. For example, Article 5 of the Refugee Convention pro-vides, [n]othing in this Convention shall be deemed to impair any rightsand benefits granted by a contacting party to refugees apart from this Con-vention. There is no reference to obligations contained in other treaties.As such, it could be argued that the meaning of Article 5 cannot be alteredby the obligations that were imposed by international human rights trea-

ties that came into force at a later date. A consequence of this approachwould be that the broader and more detailed standard of obligations con-tained in later human rights treaties, such as the International Covenanton Economic, Social and Cultural Rights (ICESCR),8could not prevailover the restrictive provisions of the Refugee Convention. The issue of theinterrelationship between earlier and later treaties is governed by Article30 of the Vienna Convention on the Law of Treaties 1969 (VCLT) whichrelates to the application of successive treaties relating to the same subjectmatter.9 In particular, Article 30(2) provides that when a treaty specifiesthat 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 thathuman beings shall enjoy fundamental rights and freedoms without dis-crimination as contained in the United Nations Charter10and the Univer-sal Declaration of Human Rights 1948 (UDHR).11 In addition, theRefugee Convention recognises:

that the United Nations has, on various occasions, manifested its profound con-cern for refugees and endeavoured to assure refugees the widest possible exerciseof these fundamental rights and freedoms.12

These two provisions relate to the same subject matter, as per Article30(1) of the VCLT. Neither the earlier Refugee Convention nor the laterhuman rights treaties specify that they are subject to or not to be consid-ered as incompatible with each other. Accordingly, the provisions of thelater human rights treaties ought to be incorporated into any determina-tion of the rights of asylum seekers. Equally, the provisions of an earliertreaty, such as the Refugee Convention, still apply but only to the extent

8 GA res. (XXI), UN GAOR 21stSess., (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.


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that they are compatible with the provisions of a later treaty, such as theICESCR, where that later treaty makes no reference that it was intendedto suspend or terminate the provisions of the earlier treaty.13Human rights

treaties make no such reference. Rather, human rights treaties do makereference to the fact that they are: inherent, and therefore they belong toeverybody because of their common humanity; inalienable, so that no onecan give up his or her human rights or be deprived of them by govern-ments; and universal, and, as such, they apply regardless of distinctionssuch as race, sex, language or religion or other status.

Given the broad application underpinning international human rightslaw, it would be somewhat incongruous if the more generous provisions ofhuman rights treaties were to be regarded as excluding asylum seekers

thereby limiting the level of protection accorded to this group to the basicstandards provided for in the Refugee Convention. Similarly, an argumentfor an expansive interpretation of the rights contained in the Refugee Con-vention may also be derived from the fact that treaty provisions often over-lap. For example, the rights of refugees are provided for not only in theRefugee Convention, but also by virtue of Article 14 of the UDHR, whichprovides that everyone has the right to seek and to enjoy in other countriesasylum from persecution. Similarly, Article 13 of the International Cove-nant on Civil and Political Rights 1966 (ICCPR) accords protection toaliens who are lawfully in the territory of a state party.14Thus, the basicstandards with regard to housing contained in the Refugee Conventionmay 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 in-stance, by Article 21 of the Refugee Convention, which imposes a posi-tive obligation upon the state, including all relevant public authorities,such as municipalities, to accord to refugees the most favourable treat-ment possible, which should never fall below that granted to aliens gener-ally. As such, it constitutes a standard that goes beyond the negative dutynot to discriminate against refugees.

The origins of the right to adequate housing can be located in Article25(1) of the UDHR, which concerns the right of everyone to an adequatestandard of living for the health and well-being of the individual and hisfamily, which includes food, clothing, housing and medical care and neces-sary social services, and the right to security in the event of a lack of liveli-hood in circumstances beyond his control.15This provision was expanded

13 VCLT, above n. 9, Arts. 30(3) and (4) and 59.14 GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN doc. A/6316 (1966).15 UDHR, above n. 11.


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by Article 5 of the International Convention on the Elimination of AllForms of Racial Discrimination 1965 (ICERD), which places the obliga-tion upon states parties to guarantee the right of everyone, without distinc-

tion as to race, colour, or national or ethnic origin, to equality before thelaw, as regards the enjoyment of economic, social and cultural rights and,in particular, the right to housing.16This right to adequate housing out-lined in the UDHR reappears in Article 11(1) of the ICESCR and, onceagain, states parties are obliged to take appropriate steps to ensure therealisation of this right. 17

The meaning of the right to adequate housing, within the context of theICESCR, 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, forexample, the shelter provided by merely having a roof over ones head or viewsshelter exclusively as a commodity. Rather it should be seen as the right to livesomewhere in security, peace and dignity.18

The Committee identified at least two reasons for adopting such anexpansive interpretation. First, the right to housing is integral to otherhuman rights and to the fundamental principles upon which the Covenantis premised. The inherent dignity of the human person upon which the

rights contained in the Covenant are based requires that the term hous-ing be interpreted so as to take account of a variety of other considera-tions, most importantly that the right to housing should be ensured to allpersons irrespective of income or access to economic resources. Second,the Committee stated that Article 11(1) must be read as referring not justto housing but to adequatehousing. In this regard, the CESCR referred tothe Commission on Human Settlements and the Global Strategy for Shel-ter to the Year 2000 which stated:

Adequate shelter means . . . adequate privacy, adequate space, adequate security,adequate lighting and ventilation, adequate basic infrastructure and adequatelocation with regard to work and basic facilities all at a reasonable cost.19

The Committee noted that the right to adequate housing is determinedin 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 AllForms 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 Membersof Their Families 1990, Art. 43; Recommendation No. 115 on Workers Housing; the UN Declaration onSocial Progress and Development; the UN Declaration on the Rights of the Child; the Vancouver Decla-

ration on Human Settlements; the UNESCO Declaration on Race and Racial Prejudice; the Declarationon 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.


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In terms of the current enquiry, there are a number of aspects identifiedby the Committee which are particularly useful. First, there is the questionof habitability which means that inhabitants must be provided with ade-

quate space and must protected from threats to health, structural hazards,and disease vectors. The physical safety of occupants must be guaranteedas well. The Committee encouraged states parties to apply comprehen-sively the WHOs Health Principles of Housing,20which identify inade-quate and deficient housing and living conditions as being invariablyassociated with higher mortality and morbidity rates.21 Second, theCESCR stated that adequate housing must be accessible to those entitledto it with disadvantaged groups being accorded full and sustainable accessto adequate housing resources. In addition, discernible governmental obli-

gations need to be developed aiming to substantiate the right of all to asecure place to live in peace and dignity.22Third, the Committee notedthat adequate housing must be in environmentally safe locations allowingaccess to employment options, health-care services, schools, child-carecentres and other social facilities that avoid excessive demands being placedupon the budgets of poor households.23Fourth, the CESCR also notedthat the construction of housing, both in terms of building materials usedand the policies supporting them, must enable appropriately the expres-sion of cultural identity and diversity of housing.24

Although international law makes provision for the right to adequatehousing and offers some explanation as to what this right entails, furthermeaning can be attached to the right by reference to rights that also impactupon the right to adequate housing. Article 11(1) of the ICESCR alsoincludes the rights to adequate food and the continuous improvement ofliving conditions. Article 11(2) imposes the obligation to recognise thatmore immediate and urgent steps may be needed to ensure, the funda-mental right to freedom from hunger and malnutrition. According to theCESCR, [T]he human right to adequate food is of crucial importance forthe enjoyment of all rights.25The Committee has also affirmed that the

right to adequate food is indivisibly linked to the inherent dignity of thehuman person and is indispensable for the fulfilment of other human rightsenshrined in the International Bill of Human Rights.26The right to ade-quate food should not be interpreted in a narrow or restrictive sense whichequates it with a minimum package of calories, proteins and other specific

20 Ibid., para. 8. See further, WHO, Health Principles of Housing(Geneva: WHO, 1990).21 General Comment 4, ibid., para. 7(d).22 Ibid., para. 7(e).

23 Ibid., para. 7(f).24 Ibid., para. 7(g).25 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.


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nutrients.27Thus, the core content of the right to adequate food implies,inter alia, [T]he availability of food in a quantity and quality sufficient tosatisfy the dietary needs of individuals, and acceptable within a given

culture.28

The requirement of cultural or consumer acceptability alsoimplies the need to take into account, as far as possible, perceived nonnutrient-based values attached to food and food consumption and informedconsumer concerns regarding the nature of accessible food supplies.29Interms of asylum seekers, the provision of three meals a day is only to beregarded as a starting point for ensuring the right to adequate food. Theimposition of a food regime, which may take little or no account of thenon-nutrition needs of the consumer, combined with the exclusion of theconsumer 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 andentitlements and its effect is underpinned by other human rights. The rightto health is closely related to, and dependent upon, the realisation of otherhuman rights including, but not limited to, the rights to housing, food,human dignity, non-discrimination and equality. These and other rightsand 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 reiteratedat the European level. The European Social Charter 1961 (ESC)31pro-vides for a right to housing. Originally, the right to housing was indirectand was to be found within rights that were accorded to the family byArticle 16 and to migrant workers by Article 19. Ratification of the Re-vised European Social Charter 1996 (the Revised Charter)32 requiresstates to undertake to take measures designed to promote access to hous-ing of an adequate standard.33According to the European Committeeof Social Rights (ESCR), adequate housing means, a dwelling which isstructurally secure, safe from a sanitary and health point of view and notovercrowded, with secure tenure supported by the law.34It should pos-sesses all basic amenities, such as water, heating, waste disposal, sanitation

27 Ibid., para. 6.28 Ibid., para. 8.29 Ibid., para. 11.30 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 Conventionwhere 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 asbeing 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.


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facilities and electricity, and it must be suitable for the number of personsand 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 adequatehousing. However, Article 8(1) is relevant as it states, [E]veryone has theright to respect for his private and family life, [and] his home . . . . Themeaning 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 Kingdomin which it stated that, It is important to recallthat Article 8 does not in terms recognise a right to be provided with ahome. Nor does any of the jurisprudence of the Court acknowledge sucha right.37However, subsequent cases have taken a broader view of Article

8. The interrelationship between the right to respect for ones home andother rights contained in the Convention was noted in Gillow, where theCourt held that the applicants right to respect for their home was a rightwhich was pertinent to their own personal security and well-being. Theimportance of such a right to the individual must be taken into account indetermining the scope of the margin of appreciation allowed to theGovernment.38

The meaning of Article 8 was also interpreted to exclude the impositionof intolerable living conditions upon individuals in Moldovan and Others v.Romania.39The applicants had been hounded from their village and homesafter their houses were burned down by a mob and they had to live incrowded and improper conditions.40The Court found that Article 8 wasclearly applicable41and considered that:

the applicants living conditions in particular the severely overcrowded andunsanitary environment and its detrimental effect on the applicants health andwell-being, combined with the length of the period during which the applicantshave had to live in such conditions and the general attitude of the authorities,must have caused them considerable mental suffering, thus diminishing theirhuman 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 dis-cuss the margin of appreciation open to states in their implementation ofthe rights and obligations contained in Article 8. In Chapman43 the

35 Ibid., at 110.36 213 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.

39Moldovan 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.


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applicant, who was a Gypsy, alleged that the refusal of planning permis-sion to station caravans on her land and the enforcement measures imple-mented in respect of her occupation of her land disclosed a violation of

Article 8. In determining whether the applicants right to respect for herhome had been violated, the Court considered that the legal and socialcontext would be a relevant factor in determining the legitimacy of theimpugned measure that had been taken against the applicant.44Other fac-tors which the Court considered to be relevant included the need bynational authorities to take into account the existence, or otherwise, ofalternative accommodation.45In the context of this case, the evaluation ofthe suitability of alternative accommodation would involve a considera-tion of, on the one hand, the particular needs of the person concerned

his or her family requirements and financial resources and, on the otherhand, the rights of the local community to environmental protection.According to the Court, a wide margin of appreciation should be grantedto national authorities, who were better placed to make the requisite assess-ment. The Court found that the applicants rights had been violated underArticle 8(1) but that such a violation was justifiable under Article 8(2) as itwas legitimate and that the interference with the applicants right was nec-essary in a democratic society.

The Court had previously examined complaints about the planning andenforcement measures imposed on a Gypsy family who occupied their ownland without planning permission inBuckley v. the United Kingdom.46In thatcase, the Court acknowledged that the interests of the community had tobe balanced against the applicants right to respect for her home, a rightwhich the Court held to be pertinent to her and her childrens personalsecurity and well-being. The importance of that right for the applicant andher family also had be taken into account in determining the scope of themargin of appreciation allowed to the respondent state.47The Court reaf-firmed the margin of appreciation which was to be afforded to the state insuch circumstances.48However, the Court also found that Article 8(1) had

been violated and that there was no proper justification for the seriousinterference with the applicants rights and those of her family.49

It is against this background that the meaning of Article 8 in terms ofhousing rights and a states margin of appreciation was discussed in Con-nors v. United Kingdom.50The applicant and his family, who were Travellers,were evicted from the site where they had lived giving rise to consequent

44 Ibid.,para. 101.45 Ibid., paras. 103-4.

46Buckley v. United Kingdom, 25 Sept. 1996, Reports 1996-IV.47 Ibid., para. 76.48 Ibid., para. 94.49 Ibid., at para. 95.50 Connors v. United Kingdom, Judgment 27 May 2004, Final Judgment 27 Aug. 2004.


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difficulties in finding a lawful alternative location for their caravans, in cop-ing with health problems and young children and in ensuring continuationin the childrens education. According to the Court, the family was, in

effect, rendered homeless, with the adverse consequences on security andwell-being which that entailed.51With regard to the provisions of Article8, the Court noted that Article 8, concerns rights of central importance tothe individuals identity, self-determination, physical and moral integrity,maintenance of relationships with others and a settled and secure place inthe community.52According to the Court, where general social and eco-nomic policy considerations have arisen in the context of Article 8, deter-mining the scope of the margin of appreciation would involve attachingparticular significance to the extent of the intrusion into the personal

sphere of the applicant,53

as Article 8 concerned rights of central impor-tance to the individuals identity, self-determination, physical and moralintegrity, maintenance of relationships with others and a settled and secureplace in the community.54Thus, the procedural safeguards available to theindividual would be especially material in determining whether therespondent state has, when fixing the regulatory framework, remainedwithin its margin of appreciation. In particular, the Court had to examinewhether the decision-making process leading to measures of interferencewas fair and such as to afford due respect to the interests safeguarded to theindividual by Article 8.55According to the Court:

The vulnerable position of gypsies as a minority means that some special consid-eration should be given to their needs and their different lifestyle both in the rele-vant regulatory framework and in reaching decisions in particular cases To thisextent, there is thus a positive obligation imposed on the Contracting States byvirtue of Article 8 to facilitate the gypsy way of life 56

Thus, the jurisprudence of the Court with regard to the extent of pro-tection afforded by Article 8 takes, as its starting point, the fact that anapplicant has a home but that the right to respect for that home has been

interfered with whereby such interference has had a negative impact onassociated rights of the applicant and his or her family. In such cases, thequestion for the Court to consider has been whether such interference wasboth in accordance with the law and necessary in a democratic society.

In addition, the issue of housing rights has been considered in the con-text of Article 1 of Protocol No. 1 to the ECHR, which provides that everynatural or legal person is entitled to the peaceful enjoyment of his

51 Ibid., para. 85.

52 Ibid., para. 82.53 Ibid.54 Ibid.55 Ibid., para. 83.56 Ibid., at para. 84.


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possessions. In addition, Article 1 provides that no one shall be deprived ofhis possessions except in the public interest and subject to the conditionsprovided for by law and by the general principles of international law. The

rights contained in Article 1 were discussed in Radanoviv. Croatia57

wherethe Court had to balance the rights of property owners and those of refu-gees who required accommodation. In the process of striking this balance,the Court recognised the rights of refugees and displaced persons withinthe framework of protection afforded by the ECHR.58It recognised thesocial rights of refugees and displaced persons noting that both groupswere often socially vulnerable. Although the Court accepted that a widemargin 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 notentail consequences which were at variance with Convention standards.59In this connection, the Court reiterated that a fair distribution of the socialand financial burden was required. Requisitioning the applicants flat con-stituted an unfair social and financial burden upon her.

It could be extrapolated from the judgment that, since the refugee inquestion had to vacate the applicants flat, the issue of the right to adequatehousing had been dealt with inappropriately by the Croatian authorities,which ought to have been seeking a more durable solution that sought toprotect the rights of all involved. In the Connorscase60the Court also gavesome consideration to the meaning to be given to Article 1 of Protocol 1.It stated that in spheres involving the application of social or economicpolicies, national authorities had a wide margin of appreciation. TheCourt also stated that in spheres such as housing, which play a central rolein the welfare and economic policies of modern societies, it would respectthe legislatures judgement as to what was in the general interest, unlessthat judgement was manifestly without reasonable foundation.61

In terms of Irelands membership of the European Union, the rights tobe 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 theTreaty of Amsterdam, which requires the Council to adopt measures onasylum, in accordance with the Refugee Convention, including minimumstandards on the reception of asylum seekers in member states.62European

57 Radanoviv. 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 considerationof the provisions of Art. 1 of Protocol 1.

62 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing theEuropean Communities and Certain Related Acts, Official JournalC 340, 10 Nov. 1997, Art. 63(1)(b).


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Council Directive 2003/9/EC, of 27 January 2003, lays down minimumstandards for the reception of asylum seekers. Unfortunately, in accord-ance 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 Treatyestablishing the European Community, Ireland is not participating in theadoption of this Directive.63However, the Directive refers to Article 1 ofthe Charter of Fundamental Rights of the European Union, which pro-vides, Human dignity is inviolable. It must be respected and protected.The Directive also refers to Article 18 which guarantees the right to asylumwith due respect for the rules of the Refugee Convention and in accord-ance 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 simplyreiterates its obligations under the Refugee Convention. Nevertheless, Ire-land, 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 toadequate housing

Irelands policy of Direct Provision has seen the accommodation of justunder 49,000 asylum seekers since 2000. Figures from the end of March2008 show that there are 6,800 asylum seekers in 63 hostels and hotelsacross the state.64As of the end of February 2007, 414 people had beenresiding in Direct Provision for 18 to 24 months and 1,315 for more than24 months.65The Minister for Justice, Equality and Law Reform has stronglycontended 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 exam-ples of Irelands failure to protect the human rights of asylum seekers. Thefollowing excerpt fromBeyond the Pale: Asylum-Seeking Children and Social Exclu-sion in Irelandhighlights the states failure to meet its obligations with regardsto 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 forthe 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 containsextensive detail as to accommodation standards for asylum seekers and it incorporates the RefugeeConvention, the Charter of Fundamental Rights of the European Union, as well as other standards ofinternational law.

64 Dil ireann, Parliamentary Debates, Volume 652, 17 Apr. 2008, Written Answers - AsylumSupport Services, ;,

last accessed 11 Oct. 2008.65 Amnesty International: Irish Section, (2008). Action 20 - Note on Asylum Seekers and MentalHealth,, lastaccessed on 11 Oct. 2008.

66 Dil ireann, above n. 64.
http://historical-debates.oireachtas.ie/D/0652/D.0652.200804170442.htmlhttp://historical-debates.oireachtas.ie/D/0652/D.0652.200804170442.htmlhttp://www.amnesty.ie/amnesty/live/irish/action/article.asp?id=4570&page=3801http://www.amnesty.ie/amnesty/live/irish/action/article.asp?id=4570&page=3801http://www.amnesty.ie/amnesty/live/irish/action/article.asp?id=4570&page=3801http://historical-debates.oireachtas.ie/D/0652/D.0652.200804170442.htmlhttp://www.amnesty.ie/amnesty/live/irish/action/article.asp?id=4570&page=3801


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624 Claire Breen

met He explained, during the course of a lengthy interview, how he was com-pelled 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 themone and one (one bottle each), but I will not. If I give them like that I will die, because I will nothave anything to think of no money let them have just a little then later again I will givethem 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 asy-

lum seekers may be required to share one bedroom. One asylum seekerhas observed, [L]iving with different people you have to be very careful we have different cultures, we have different ways of living.68The extendedconfinement of asylum seekers in crowded conditions also exposes them toan increased risk of physical and mental illness. Existing within the envi-ronment of Direct Provision has generated feelings of powerlessness and alack of autonomy or control, which in turn can lead to on-going mentalhealth problems, such as depression. According to one consultant psychia-trist who has worked with asylum seekers, in some ways the system ofDirect Provision could do as much long-term damage to asylum seekersmental health as the trauma from which they had fled. A similar regime inBritain had profoundly demoralised asylum seekers, causing depressionand other mental health problems. A similar observation was made by aspecialist registrar in public health medicine at a conference on services forasylum seekers who noted that a major issue for asylum seekers was controlover their lives and that most asylum seekers have found it difficult to gofrom leading an active, productive life to one of waiting and inactivity. Thelatter medical practitioner, who had conducted research on immigrantsfrom thirty-five countries in two Irish locations, said some 48 per cent ofthe study group were found to have poor mental wellbeing.69In a newspa-per interview, one asylum seeker who had attempted to commit suicidesaid:

I thought, this is the end of the world. What am I doing here? I cant go back tomy country and Im not even allowed to stay here. What do I do? The best solu-tion 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 onbehalf of the Irish Refugee Council, Dublin 2001, at 37. See also, Refugee claims his wife starved todeath, Irish Times, 22 Jan. 2007.

68Nasc, The Irish Immigrant Support Centre (2008), Cuan Cinnte? (A Safe Harbour?): NascsCampaign on the Asylum/Protection System and Direct Provision,.

69 See, P. OMahony, Irelands Asylum System Still a Shambles?, working notes, Reflection andAnalysis on Social and Economic Issues, Feb 2007, 4.
http://www.nascireland.org/pages/policy/direct_prov_policy.htmhttp://www.nascireland.org/pages/policy/direct_prov_policy.htmhttp://www.nascireland.org/pages/policy/direct_prov_policy.htmhttp://www.nascireland.org/pages/policy/direct_prov_policy.htmhttp://www.nascireland.org/pages/policy/direct_prov_policy.htmhttp://www.nascireland.org/pages/policy/direct_prov_policy.htm


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Youre not allowed to work. Youre not allowed go to school even if youre inter-ested 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 rightto adequate housing and its interrelationship with other human rights suchas the right to health, they are also illustrative of Irelands failure to graspthis complexity, thus placing it in violation of the raft of internationalhuman rights obligations that it has undertaken, stemming from Article25(1) of the UDHR through to Article 11 of the ICESCR and the lattersexpansive interpretation by the CESCR.

The long-term effect on children, many of whom would never haveseen 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 alower level of protection and assistance than Irish children in care, In totalmore than 300 unaccompanied minors seeking asylum have gone missing fromState care over the past five years.72

If the right to adequate housing was viewed purely from the perspectiveof having a roof over ones head, then the policy of Direct Provision wouldmeet the basic needs of Irelands asylum seekers. However, the holisticview required of international standards emanating both from the UN andEurope suggests that Irelands current approach to meeting asylumseekers rights to adequate housing, food, and health is severely lacking.Asylum seekers in Ireland run the risk of malnourishment, physicaland mental health problems and social exclusion, which, as demonstratedin the following section, raises concern about racial prejudice andxenophobia.

However, as the jurisprudence of the European Court demonstrates,states do have a margin of appreciation in the implementation of thehuman rights obligations. The jurisprudence of the Court suggests that

Ireland is under no obligation to provide a home, either to its own nationalsor to asylum seekers. However, this lack of obligation cannot be interpretedas permitting the imposition of intolerable living conditions upon individu-als. Where it is alleged that Article 8 has been violated, the starting pointfor consideration is whether actions of the state do in fact constitute a viola-tion of the right to respect for the applicants home and whether such inter-ference 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, IrishTimes, 31 Oct. 2007; Health at risk over language barriers, Irish Times, 30 Jan. 2007; Irish RefugeeCouncil (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.


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Accordingly, a balance has to be struck between the rights of the applicantand those of the respondent state. In this regard, the views of the EuropeanCommission Against Racism and Intolerance (ECRI) on of the effect of

the policy of Direct Provision upon asylum seekers rights is informative. Inresponse to a number of concerns expressed about the Direct Provisionsystem, in particular with regard to the fact that the19.10 per week pro-vided to asylum seekers for personal expenses has remained unchangedsince 2001, the Commission recommended that the allowance provided toasylum seekers be equality and poverty proofed. It also encouraged theauthorities to continue with their harmonisation of the management of theDirect Provision system and their review of the complaints procedure. TheECRI recommended that this process should also take into account con-

cerns expressed about the current operation of the policy and that alterna-tives to the Direct Provision system be considered.73Human rights law, both that of the UN and the European system, rec-

ognises that many rights are subject to limitation. However, the questionthat remains to be answered is whether such limitations, as they are appliedto asylum seekers right to adequate housing, are legitimate, necessary andproportionate. 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 seek-ers are justifiable, a further question must be asked and that is whetherthe aforementioned basic living standards, and their ensuing difficulties,constitute different treatment between nationals and non-nationals whichis legitimate or whether such treatment cannot be justified and thus con-stitutes discrimination.

4.1 Asylum seekers right to equality and non-discrimination

in international lawArticle 3 of the Refugee Convention prohibits discriminatory conductonly 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 andthe UDHR as having affirmed the principle that human beings shallenjoy fundamental rights and freedoms without discrimination and themanifestation by the UN of, its profound concern for refugees havingendeavoured to assure refugees the widest possible exercise of these fun-damental 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, , last accessed30 Jan. 2008, paras. 74-6.
http://www.coe.int/t/e/human_rights/ecri/1-ECRI/2-Country-by-country_approach/Ireland/Ireland_CBC_3.asp#TopOfPagehttp://www.coe.int/t/e/human_rights/ecri/1-ECRI/2-Country-by-country_approach/Ireland/Ireland_CBC_3.asp#TopOfPagehttp://www.coe.int/t/e/human_rights/ecri/1-ECRI/2-Country-by-country_approach/Ireland/Ireland_CBC_3.asp#TopOfPagehttp://www.coe.int/t/e/human_rights/ecri/1-ECRI/2-Country-by-country_approach/Ireland/Ireland_CBC_3.asp#TopOfPagehttp://www.coe.int/t/e/human_rights/ecri/1-ECRI/2-Country-by-country_approach/Ireland/Ireland_CBC_3.asp#TopOfPagehttp://www.coe.int/t/e/human_rights/ecri/1-ECRI/2-Country-by-country_approach/Ireland/Ireland_CBC_3.asp#TopOfPagehttp://www.coe.int/t/e/human_rights/ecri/1-ECRI/2-Country-by-country_approach/Ireland/Ireland_CBC_3.asp#TopOfPagehttp://www.coe.int/t/e/human_rights/ecri/1-ECRI/2-Country-by-country_approach/Ireland/Ireland_CBC_3.asp#TopOfPage


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Thus, the rights and obligations contained in international human rightslaw, since they apply to all people regardless of status, must apply equallyto refugees and asylum seekers.74

The test for non-discrimination contained in the Refugee Convention isset at a basic minimum and constitutes two alternatives. One, refugees areaccorded either the same treatment as nationals of a country in relation torationing, elementary education, public relief, and social security. Two,refugees are to be treated in a manner as favourable as possible or, at aminimum, not less favourably than that accorded to aliens generally, inrelation to employment, housing and education. Given that the protectionafforded by asylum seekers under international refugee law is limited, espe-cially with regard to the protection of their economic and social rights,

regard ought to be had to international human rights law which applies toeveryone without distinction.International human rights law has broad definitions of discrimination

stemming from the UDHR, which provides, All human beings are bornfree and equal in dignity and rights75and its mandate of equal treatment,without distinction of any kind such as birth or other status.76ThePreambles to both Covenants state that their rights are to be extended toeveryone as well as recognising the inherent dignity77and the equal andinalienable rights of all members of the human family78where such rightsderive from the inherent dignity of the human person.79Article 2(2) ofthe ICESCR, echoing a similar provision in Article 2(1) of the ICCPR,prohibits discrimination of any kind as to race, colour, sex, language, reli-gion, political or other opinion, national or social origin, property, birth orother status. Article 26 of the ICCPR prohibits any discrimination andguarantees to all persons equal and effective protection against discrimi-nation on any ground such as race, colour, sex, language, religion, politicalor other opinion, national or social origin, property, birth or other status.

These provisions have been expanded upon by the Committee onHuman Rights (HRC).80In general, non-nationals such as asylum seekers

74 Executive Committee of the High Commissoners Programme 52ndSession, Note on Interna-tional 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, restric-tion 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 effectof nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, ofall rights and freedoms. The non-exhaustive nature of the list provided in Art. 26 ICCPR means that thepursuit of an action alleging discrimination by the state is open to citizens and non-nationals alike. Seealso, CCPR, General Comment 3: Implementation at the national level (Art. 2), 29 July 81.


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628 Claire Breen

who may find themselves in the territory or subject to the jurisdiction of astate party (ought to) benefit from the rights guaranteed in human rightstreaties without discrimination. In its General Comment on the position

of aliens under the ICCPR the HRC noted that the Covenant does notrecognise the right of aliens to enter or reside in the territory of a stateparty. It is, in principle, a matter for the state to decide who it admits to itsterritory. However, the General Comment stresses that, in certain cir-cumstances an alien may enjoy the protection of the Covenant even inrelation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for familylife arise.81The HRC has also stressed the prohibition of discriminationconcerning aliens enjoyment of the Covenants rights. For example, if a

state provides special public support, in cash payments or any other bene-fits, to homeless persons, pregnant women, families with disabled children,or low-income students, asylum seekers should be entitled to those benefitsunder the same conditions as nationals. Any unnecessary or unreasonabledifferentiation between nationals and asylum seekers would amount to dis-crimination. Therefore, a state party would have to justify its actions underArticle 2(1) of the ICCPR.

Similar considerations arise in relation to Article 2 of the ICESCR. Dif-ferential treatment would have to be justified by reference to Article 482asseeking to reduce numbers of asylum seekers and/or the number of bogusasylum claims, or seeking to discourage those individuals who have alreadylodged their claims from pursuing such claims. With regard to the subsist-ence rights of asylum seekers, which includes the right to adequate hous-ing, the ICESCR allows for a degree of reasonabledifferentiation betweennationals and non-nationals83but 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) whoshould instead be granted treatment as favourable as possible (i.e. as nationals orpermanent residents) given their special status.84

The CESCR has called upon states to ensure that comprehensive legis-lation on asylum seekers is adopted and that their economic, social andcultural 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 subjectsuch rights only to such, limitations as are determined by law only in so far as this may be compatiblewith the nature of these rights and solely for the purpose of promoting the general welfare in a demo-cratic 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 Committeeon Economic, Social and Cultural Rights: Germany, 24 Sept. 2001, E/C.12/1/Add.68, paras. 16, 34.


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Article 1(2) of ICERD states that, this Convention shall not apply todistinctions, exclusions, restrictions or preferences made by a state party tothis Convention between citizens and non-citizens. Similarly, in other

human rights instruments differential treatment is permissible but only tothe extent to which it conforms with the principle of non-discriminationthat underpins all human rights instruments. The Committee on the Elim-ination of All Forms of Racial Discrimination (CERD) has expanded uponthe interrelationship between the prohibition upon discrimination and theenjoyment of economic, social and cultural rights of asylum seekers withits statement that:

differential treatment based on citizenship or immigration status will constitutediscrimination if the criteria for such differentiation, judged in the light of the

objectives and purposes of the Convention, are not applied pursuant to a legiti-mate aim, and are not proportional to the achievement of this aim.86

In terms of European human rights treaties, both the Preamble andArticle E of the ESC prohibit discrimination on any ground such as race,colour, sex, language, religion, political or other opinion, national extrac-tion or social origin, health, association with a national minority, birth orother status. Article 1 of the ECHR reiterates the language of the UNtreaties with its guarantee that the rights contained in the Convention areto be secured to everyone.87Equally, Article 14 repeats the theme of non-

discrimination with its statement that, the rights and freedoms set forth inthis Convention shall be secured without discrimination on any ground. Furthermore, Protocol No. 12 to the ECHR is dedicated to the gen-eral prohibition of discrimination.88The EU Charter89goes further as itsPreamble states that the European Union, is founded on the indivisible,universal values of human dignity, freedom, [and] equality .90The sig-nificance of human dignity is highlighted in Article 1 which states that,Human dignity is inviolable. It must be respected and protected. Article21(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 allhuman rights instruments, this right is not absolute and regard must behad for the difference between legitimate differential treatment and ille-gitimate differential treatment. Thus, many of the provisions regarding

86 General Recommendation No. 30: Discrimination Against Non Citizens, 1 Oct. 2004, para. 4.87 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 FundamentalFreedoms, 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.


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630 Claire Breen

equal treatment are subject to provisos which recognise the need for dif-ferential treatment in order to avoid discrimination. For example, ArticleG(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 necessaryin a democratic society for the protection of the rights and freedoms ofothers or for the protection of public interest, national security, publichealth, or morals.91One of the clearest provisos regarding the limitationsthat may be put upon rights is to be found in the ECHR, with many Arti-cles stating that the right is subject to limitation only:

except such as is in accordance with the law and is necessary in a democratic soci-ety in the interests of national security, public safety or the economic well-being ofthe 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 thatend, 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 relation-ship of proportionality between the means employed and the aim sought to berealised.93

Consequently, differential treatment will only constitute discriminationif it places a disproportionate burden on the group in question and onlyif this burden cannot be justified. That leaves the courts with the issue ofdetermining what is justifiable or legitimate and whether there is no alter-native but to adopt unequal treatment or alternatively it may choose toaccept an apparently rational explanation for the unequal treatment.94The difficulty with establishing discrimination against asylum seekers isthat there is no prohibition on the differential treatment of asylumseekers as a category per se. States have a right to distinguish between

nationals and non-nationals or aliens. However, such treatment must belegitimate and is often legitimised with regard to the need to preservestate sovereignty.95However, state sovereignty must recognise the inher-ent dignity of the human person, which serves as the basis for equalitywhere, [d]ignity is an irreducible minimum96 so that [e]quality

91 ESC, above n. 31.92 See, e.g., Art. 8 (right to respect for private and family life) and Art. 9 (right to freedom of

thought, conscience and religion).93Belgian 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.


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based on dignity must enhance rather than diminish the status ofindividuals.97

4.2 Asylum seekers right to equality and non-discriminationin domestic law

Irelands attitude to asylum seekers and the ensuing problems have cometo the attention of human rights monitoring bodies such as CERD, whichexpressed its concern at the possible implications of the policy of disper-sal of and Direct Provision for asylum seekers with regard to Article 3 ofthat Convention. Consequently, the Committee encouraged the stateparty to take all necessary steps with a view to avoiding negative conse-quences for individual asylum seekers and to adopt measures promoting

their full participation in society.98

Although Ireland has ratified all of theUN treaties referred to in the preceding sections, the provisions of thetreaties have limited impact within the domestic legal sphere becauseonly some of the international legal provisions have been incorporatedinto Irish domestic law and, in some instances, Ireland has entered res-ervations to the treaties in order to reassert the supremacy of the IrishConstitution.99

In terms of European human rights protection, not only has Irelandundertaken obligations under the European Convention in the interna-tional sphere, it has also incorporated the Convention into domestic law byvirtue of the European Convention on Human Rights Act, 2003, and, asthe previous section indicates, the reality behind the scheme of Direct Pro-vision may well constitute the imposition of intolerable living conditions,in violation of Article 8(1) and/or Article 1 of Protocol 1, that breach themargin of appreciation open to states and are not justifiable under Article8(2) and/or Article 1 of Protocol 1. As the case law from the EuropeanCourt indicates, the first step in determining whether a states actions fallwithin its margin of appreciation is to determine whether the provision isin accordance with the law.

97 Ibid.98 Consideration of Reports Submitted by States Parties under Art. 9 of the Convention, Conclud-

ing 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 theSecond report of the European Commission against Racism and Intolerance, CRI (2002) 3, on Ire-land, adopted on 22 June 2001, that there existed a certain degree of prejudice and intolerance towardspersons of immigrant origin, asylum seekers and refugees: Council of Europe: European Social Char-ter (Revised) European Committee of Social Rights Conclusions 2004 (Ireland). See also, EuropeanCommission Against Racism and Intolerance (1997), Report on Ireland (Strasbourg: Council ofEurope).

99Bunreacht 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 Committees1999 recommendation concerning the inconsistency of Art. 40.1 of the Constitution on equalitybefore 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.


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Although Ireland has relied upon ministerial policy and legislation tocut back on the rights of asylum seekers, it is possible to argue that suchmeasures are a violation of the Irish Constitution. Article 40.1 of the Irish

Constitution states, [A]ll citizens shall, as human persons, be held equalbefore the law (emphasis added). Article 40.1 continues with the provisothat this guarantee does not mean that the state cannot have due regard todifferences of capacity, physical and moral, and of social function. Simi-larly, Article 40.3.1 of the Constitution provides, [T]he state guarantees inits laws to respect, and, as far as practicable, by its laws to defend and vin-dicate the personal rights of the citizen. The identification of rights to beaccorded to Irish citizens has formed the basis for the distinction that hasbeen drawn by the Irish Courts between citizens and non-nationals on

numerous occasions. This distinction was reiterated by the Supreme Courtin Lobe, Osayande and Others v. Minister for Justice, Equality and Law Reform.100Incanvassing previous case law Keane CJ referred to, inter alia,the judgmentof Gannon J in Osheku v. Irelandin which he stated:101

That it is in the interests of the common good of a State that it should have controlof the entry of aliens, their departure, and their activities and duration of staywithin 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 ofthe individual citizens, and the protection of the former may involve restrictionsin circumstances of necessity on the latter.

However, much of the discussion on Lobeand earlier cases focused onthe right to be in Ireland which is somewhat different to implementing theeconomic and social rights of asylum seekers in Ireland undergoing theasylum process.

Arguably, the intolerable living conditions of asylum seekers, both inthemselves and by virtue of the fact that they violate the fundamental rightto dignity, constitute a violation of the fundamental and inalienable rightreferred to in Article 40.1. That notion that the fundamental right to dig-

nity is to underpin any determination of equality and/or the justifiabilityof differential treatment can be seen in the Supreme Court decision ofQuinns Supermarket v. Attorney General, where Walsh J stated, in relation toArticle 40.1:

. . . this provision is not a guarantee of absolute equality for all citizens in all cir-cumstances but is a guarantee of equality as human persons and (as the Irish textof the constitution makes quite clear) is a guarantee related to their dignity ashuman beings and a guarantee against any inequalities grounded upon an assump-tion, or indeed a belief that some individual or individuals or classes of individu-

als, by reason of their human attributes or their ethnic or racial, social or religious100 [2003] IESC 3, 23 Jan. 2003, ,last accessed 30 Jan. 2007.101 [1986] IR 733, 746.
http://www.bailii.org.ezproxy.waikato.ac.nz:2048/ie/cases/IESC/2003/3.htmlhttp://www.bailii.org.ezproxy.waikato.ac.nz:2048/ie/cases/IESC/2003/3.htmlhttp://www.bailii.org.ezproxy.waikato.ac.nz:2048/ie/cases/IESC/2003/3.htmlhttp://www.bailii.org.ezproxy.waikato.ac.nz:2048/ie/cases/IESC/2003/3.htmlhttp://www.bailii.org.ezproxy.waikato.ac.nz:2048/ie/cases/IESC/2003/3.htmlhttp://www.bailii.org.ezproxy.waikato.ac.nz:2048/ie/cases/IESC/2003/3.html


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background, are to be treated as the inferior or superior of other individuals in thecommunity.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 asa human being and it acts to prohibit any differential treatment which isbased on attribute or background where such treatment serves to under-mine the dignity of that individual. Article 40.1 identifies some of the basesfor differential treatment, qualifications which have been subject to somejudicial 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 ofthe human equality of all citizens and that such equality shall be recognised in thelaws of the State. The section itself [in its second sentence] recognises that ine-quality may or must result from some special abilities or from some special needand it is clear that the Article does not either envisage or guarantee equal measurein all things to all citizens.103

The requirement for differential treatment to promote equality wasidentified by Keane CJ in Re Planning and Development Bill 1999.104In Lowthv. The Minister for Social Welfare,105Hamilton CJ, in delivering the judgment

of the Court, cited with approval the judgment of Barrington J inBrennanv. Attorney- Generalwhere he said:

Therefore it would appear that there is no unfair discrimination provided everyperson in the same class is treated the same way. . . . No doubt this is true, but itmight be prudent to express, what is perhaps implied in it, that the classificationmust be for a legitimate legislative purpose, that it must be relevant to that pur-pose, and that each class must be treatedfairly.106

The question is whether the protection of the common good constitutesa legitimate purpose for treating asylum seekers differently to citizens orothers lawfully resident in Ireland in terms of Direct Provision and theassessment of social welfare entitlements. In Re Illegal Immigrants (Traffi cking)Billthe Supreme Court had to consider, inter alia:

whether section 5 of the Bill imposed conditions or restrictions on the exercise ofa right by a certain category of non-nationals in a manner that is unfair, arbitraryor invidious so as to constitute unequal treatment within the meaning of Article

102 [1972] IR 1, at 13-14.103 [1966] IR 567, 639.104 [2000] 2 IR 321, at 357.105 [1998] IR 321.106 Lowth, ibid., at 341;Brennan[1983] LRM 419 (emphasis added).


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

In response to that question, the Court reiterated the fact that non-

nationals enjoy a constitutional right to equal treatment, and in particu-lar the constitutional right of access to the Courts and fairness ofprocedures in the Courts, [is to be] enjoyed by non-nationals and citizensalike.108In that case, the Supreme Court found that any limitations onasylum seekers rights were justifiable and therefore were constitutionalon the basis that they served a legitimate public policy objective of seek-ing to bring about at an early stage legal certainty as regards the admin-istrative decisions in questions. According to the Court, the sameconsiderations had to apply to the substantial grounds requirement and

the limitation on the right of appeal to the Supreme Court.109The legiti-matebases for limiting the fundamental rights contained in Article 40.1,as they relate to the differential treatment currently experienced by asy-lum seekers in the manner of the provision of housing and the limitedprovision of welfare services in Ireland, remain to be determined. Thus,whilst it may be legitimate to differentiate between nationals and non-nationals in terms of immigration law, the nature and consequences ofthe differential treatment itself must be legitimate, that is, it must bebased in law and it much achieve a significant objective by rational and

proportionate means.International and national law recognises the need to observe state sov-ereignty and having due regard to Irelands immigration system in preserv-ing that right serves an important and significant objective. Theestablishment of such an objective gives rise to a series of further questionsthat must be asked in order to determine whether the means chosen arereasonable and demonstrably justified. A proportionality test must be for-mulated in which three further requirements must be satisfied. First, themeasures adopted must be rationally connected to the objective. Conse-quently, where distinctions are adopted such measures must be carefullydesigned to achieve the objective in question. They must not be arbitrary,unfair or based on irrational or negative stereotypes, such as those thatmight suggest that the claims of those seeking asylum are largely bogus,110are designed to rip off Irelands generous social welfare system,111 andemanate 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.


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With regards to the second and third requirements of proportionality,the effects of the Direct Provision policy should impair as little as possiblethe right or freedom identified above. Again, these requirements are to be

linked back to the need for carefully-designed measures where rights andfreedoms may be impaired but only to the extent to which such impairmentsatisfies the important and significant objective of offering protection toand providing for asylum seekers, particularly those that are in line withIrelands international legal obligations. The distinctions that are drawnbetween nationals and non-nationals may, in the first instance, constitutepredictable and objectively applicable standards. However, such distinc-tions must be regarded as a starting point for analyses only as the effective-ness 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 Minis-terial circular, there is no legislative basis for such limitations. However,other limiting provisions, such as the Habitual Residence rule, do havetheir basis in domestic legislation which is subject to domestic measuresprohibiting discrimination. With regard to the argument that differentialtreatment must be in accordance with the law or, in the alternative, mustnot be prohibited by the law, section 3(1) of the Equal Status Act 2000defines discrimination as the less favourable treatment of one person thananother person on one of nine grounds enumerated in section 3(2), whichincludes in section 3(2)(h), that they are of different race, colour, national-ity or ethnic or national origins (the ground of race). In particular, sec-tion 4(6)(c) of the Equal Status Act 2000 prohibits discrimination in theprovision of, accommodation or any services or amenities related toaccommodation. These provisions can be regarded as prohibiting directdiscrimination in terms of the right to adequate housing on the grounds ofrace. The Act does not refer to the category of asylum seekers itself as aprohibited ground of discrimination. As a result, an asylum seeker wouldhave to establish that the less favourable treatment was as a consequence

of his or her categorisation as being of particular race or national or ethnicorigin. However, discrimination is not confined to measures that directlytarget particular categories of persons. The concept of indirect discrimi-nation prohibits measures that have as their impact disproportionatelynegative consequences for that person or group of persons. Consequently,it could be argued that the policy of Direct Provision has a disproportion-ately negative impact of individuals whose race, ethnicity, or nationality isother than Irish. Even if there was a legislative basis for the policy, such abasis would not automatically confer legitimacy upon the limiting provi-

sions, as such provisions must also be rational and must be proportionateto the aim to be achieved.113

113See, e.g.,Belgian Linguistic Case (No.2), above n. 93.


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5. ConclusionIn order for human rights violations to be redressed they first have to beidentifiable. This article has sought to identify potential violations ofinternational and domestic law which are violated by Irelands currentpolicy of Direct Provision, including, the rights to an adequate standardof living, adequate housing, and dignity. In addition to the violation ofthese rights it can be argued that the policy of Direct Provision also vio-lates the right to equal treatment. By virtue of its ratification of varioushuman rights treaties, Ireland has undertaken to respect and ensure suchrights. Therefore, any right claimed by the Irish state to control its bor-ders by way of an immigration system must be balanced with the obliga-tion 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 inter-

related nature of international human rights law may mean that a viola-tion of the right to adequate housing can in turn result in a violation ofother rights, such as the right to be treated with dignity, the right to equal-ity and non-discrimination, the right to respect for private and family life,to adequate food, and to the highest attainable standard of physical andmental health. Any limitations placed upon these rights must also be justi-fied. They must have a significant objective with the limiting measures

designed to achieve this objective being rational and proportionate innature. Irelands policy of Direct Provision fails to meet these criteria.

breen c ijrl 2008 direct provision

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