CA and TA (a minor) v Minister for Justice and Others

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Respondent/Defendant:Minister for Justice and Equality, Minister for Social Protection, Attorney General and Ireland
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:14 Nov 2014
Judge:MacEochaidh J.
Category:Refugee Law
Keywords:Asylum, Family Life (Right to), Minor, Reception Centre, Refugee
Country of Origin:Nigeria
URL:http://www.courts.ie/Judgments.nsf/0/9816BD5E4D1003F780257DB00040BA1D
Geographic Focus:Ireland

Facts:
The first named applicant was a Ugandan national who arrived in Ireland in 2010 and whose son, the second named applicant, was born in Ireland in 2011. She made an application for asylum on arrival in the State. She was initially given accommodation in Dublin but was moved to Galway shortly thereafter. She was living there for more than three and a half years. Their asylum claims were unsuccessful and they applied for subsidiary protection and for leave to remain in the State.

The applicants argued that the direct provision system, as it currently operated, was in breach of the principle of the separation of powers, breached and/or disproportionably interfered with constitutional and fundamental rights, was unlawful or ultra vires, and that the statutory ban on access to social welfare benefits and/or the labour market was unlawful.

The court then held that the issues before it for decision were:-

  1. Did “direct provision”, either in part or because of cumulative effect, breach the applicants’ fundamental human rights?
  2. Was Article 15.2 of the Constitution breached because “direct provision” was an administrative scheme without legislative basis (apart from the prohibitions on work and social welfare)?
  3. Was the weekly cash payment (adults €19.10 and children €9.50) known as the Direct Provision Allowance ultra vires the Social Welfare Consolidation Act 2005 or otherwise unlawful?

Having considered them, it decided that they had not been made out by the applicants and it dismissed their proceedings.

Reasoning:
Question 1: Did “direct provision”, either in part or because of cumulative effect, breach the applicants’ fundamental human rights?
As to the first question, the court noted that there was a conflict of evidence before it. The applicants had made allegations about the harm caused by direct provision, which had been denied by the respondents. As there had been no cross-examination of witnesses, or any evidence from persons appropriately qualified to give opinions as to whether harm had been suffered by the applicants, the court held that it was not possible for the applicants to sustain a claim that “direct provision” was a form of inhuman and degrading treatment because of its negative effects, contrary to the ECHR or any provision of Irish law.

The court held, however, that particular aspects of the direct provision system breached the applicants’ rights, particularly in relation to the right to respect for private and family life under article 8 ECHR. This related to the accommodation centre’s rules and, in particular, the daily registration requirement, the requirement to notify proposed absences, unannounced searches of bedrooms with or without permission, the rule against having guests in the bedroom, and an inadequate complaints procedure.

The court rejected the applicants’ claim that the Charter of Fundamental Rights applied to their situation in the direct provision system. The manner in which Ireland provided material support to protection applicants was not a form of implementation of Union law and therefore, in accordance with Article 51 of the Charter, it did not govern Ireland’s actions in this area.

Question 2: Was Article 15.2 of the Constitution breached because “direct provision” was an administrative scheme without legislative basis (apart from the prohibitions on work and social welfare)?
The court rejected the applicants’ argument that direct provision system was invalid for having no legislative basis. It held that the government was entitled to exercise executive powers independently of the legislature, and that that did not amount to usurping the law-making function of the legislature within the meaning of Article 15 of the Constitution.

Question 3: Was the weekly cash payment (adults €19.10 and children €9.50) known as the Direct Provision Allowance ultra vires the Social Welfare Consolidation Act 2005 or otherwise unlawful?
The court rejected the applicants’ argument that the Direct Provision Allowance was ultra vires the Social Welfare Consolidation Act 2005 or otherwise unlawful. Whilst the Social Welfare Consolidation Act 2005 provided was that no allowance was payable under that Act to persons who had sought subsidiary protection, the State was not prohibited from making cash payments to protection applicants. Neither was it prohibited from using the systems used for social welfare payments to make such payments. Additionally, it held that the applicants had no standing to challenge such payments and that, to have it, they would have to show that the illegality caused injury to them.

Decision:
The court therefore rejected the applicants’ main challenge to the direct provision system on the three issues raised by them in the proceedings. However, it found that some aspects of the system infringed their rights.

Principles:

Where an applicant for asylum who is residing in direct provision makes allegations in judicial review proceedings that residing thus has caused him or her harm, if such allegations are denied by the respondents, a court will not be able to resolve the evidential conflict arising where there has been no cross-examination of witnesses or any evidence from persons appropriately qualified to give opinions as to whether harm had been suffered by the applicant, as alleged.

Rules of accommodation centres which are part of the direct provision system must comply with article 8 ECHR and analogous constitutional provisions on the right to respect for private and family life.

The Charter of Fundamental Rights does not apply to residence in the direct provision system. It is not a form of implementation of Union law and therefore, in accordance with Article 51 of the Charter, does not govern the State’s actions in the area.
The direct provision system does not need to have a legislative basis and is lawfully established by an act of the executive.

The Direct Provision Allowance, whereby cash payments are made to residents in the direct provision system, is not ultra vires the Social Welfare Consolidation Act 2005 or otherwise unlawful.

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