Facts: This case concerned difficulties faced by the State in providing accommodation to certain single male applicants for international protection in the period between late 2023 and May 2024. As the State was unable to provide accommodation, it sought to provide for the basic needs of applicants through an increased daily expenses allowance of 75 euros, and through the provision of vouchers, information services and increased day services. The High Court had previously ruled in S.Y. v Minister for Children, Equality, Disability, Integration and Youth & ors [2023] IEHC 187 that the State was not meeting the basic needs of applicants, and a further case ([2023] IEHC 717) was referred to the CJEU concerning damages.
This case was brought by the Irish Human Rights and Equality Commission, using its powers under section 41 of the Irish Human Rights and Equality Act 2014, and this was the first case of this type.
The Commission detailed how between 4 December 2023 and 10 May 2024, 2,807 single, adult males who had sought international protection in the State were not provided with accommodation. Of them, 1,715 were still awaiting an offer of accommodation by 10 May 2024. The Commission set out the particular vulnerabilities and risks faced by unaccommodated international protection applicants, and affidavits were filed by members of the Commission, Merchants Quay Ireland, the Irish Refugee Council and individual international protection applicants. The affidavits set out the experiences of these organisations and of the international protection applicants, including the insufficiency of the allowance to pay for even basic hostel accommodation.
In turn, the respondents set out their position as to how the provisions met the basic needs of applicants in the context of a sudden unprecedented and unforeseeable increase in applicants and the consequence of being unable to provide accommodation to all new applicants. The respondents had introduced a more formalised prioritisation system and vulnerability triage procedure to accommodate applicants where possible. It described how the increase to the daily expenses allowance of 75 euros, as well as a 100 euro voucher on arrival, for unaccommodated applicants was greater than equivalent payments to international protection applicants in other EU Member States. This was seen as important in not encouraging applicants to come to Ireland. There were also agreements with day service provided, improved access to information and cold weather response mechanisms to provide temporary accommodation in emergency situations. It was stated that where the Department received referrals from An Garda Síochána and NGOs about street homelessness, these cases were prioritised. However, it found that there were very few cases referred and this was interpreted as meaning that most applicants had found alternative accommodation.
The Commission sought a number of declarations from the respondents. These included that by failing to meet the needs of applicants, the respondents breached the applicants’ rights under the Charter of Fundamental Rights of the EU and the European Convention on Human Rights, as well as the recast Reception Conditions Directive 2013/33/EU and/or the European Communities (Reception Conditions Regulations 2018. Various orders of mandamus were also sought to require the respondents to meet the basic needs of unaccommodated international protection applicants.
Reasoning: In the High Court, O’Donnell J first dealt with the question of whether this was a legitimate case to bring under section 41, Irish Human Rights and Equality Act 2014. This provision allows for the Commission to institute legal proceedings to obtain ‘relief of a declaratory or other nature in respect of any matter concerning the human rights of any person or class of persons’.
O’Donnell J. found that the Commission was entitled to bring the case, that there was no requirement on the Commission to identify each individual concerned, instead, a class of persons was sufficient so long as the class was capable of being precisely defined, and, that there was no obligation on the Commission to obtain the consent of each individual. However, on the definition of ‘human rights’, the High Court found that the Commission could not obtain relief simply to the effect that the respondent breached a provision in an enactment such as the European Communities (Reception Conditions) Regulations 2018, instead it had to relate to a beach of a provision in one or more of the foundational instruments that are referred to in Part 3 of the 2014 Act on human rights, such as international treaties that are given effect in national law. Importantly, however, a breach of an enactment can still be relied on as proof of an alleged breach of human rights. Beyond this, a section 41 case must satisfy the requirements of other proceedings: there must be a live dispute and the case must be proved in the ordinary way. The High Court made clear that the proceedings were not an advisory judgment and could not answer hypothetical questions.
Turning to the substantive issues of the case, O’Donnell J firstly referred to the CJEU case of Haqbin (C-233/18), where basic needs were understood to include a place to live, food, clothing and personal hygiene, and must be met by the state not only to ensure compliance with the recast Reception Conditions Directive, but also ensure applicants are treated in a manner that is compatible with their human dignity.
O’Donnell J. recognised the difficulties faced by the State, but held that the State’s response was inadequate and that the assumption that many were able to access accommodation based on the low numbers of reported ‘street homeless’ applicants was faulty. O’Donnell J set out that many applicants, even if not street homeless, were accommodated in precarious and ad hoc circumstances, including relying on friends, sleeping in churches and mosques, or walking through the city at night. The High Court rejected the inference that a majority of unaccommodated applicants had found accommodation due to the low numbers of reported rough sleeping cases. It also noted that basic needs go beyond housing and that considerable strain was placed on day service providers such as Merchants Quay Ireland.
The payments made to applicants were found to not amount to an adequate financial allowance to access basic housing, including even basic hostel accommodation. O’Donnell J held that irrespective of whether it is legitimate for the Department to consider the avoidance of incentivising applicants to come to Ireland to apply for international protection as a factor, the basic needs of applicants were not met.
Decision: O’Donnell J granted the declaratory reliefs sought by the Commission that the State, in failing to meet the basic needs of newly arrived international protection applicants, breached that class of person’s rights pursuant to Article 1 of the Charter of Fundamental Rights of the European Union. However, the application for mandatory relief was refused; the State has sought to respond to previous declarations by the High Court and there was no doubt it would respond to the declaratory relief in this judgment.
