Economic Social & Cultural Rights in the Direct Provision System: Rights and State Obligations

1. Economic Social & Cultural Rights in the Direct Provision System: Rights and State Obligations FLAC – the Free Legal Advice Centres

2. Economic Social & Cultural Rights • Social Rights: Core requirements for a dignified existence • Economic Rights: Right to participate in economic activities and maintain oneself • Cultural Rights: Right to participate and preserve ones cultural identity • Economic Social and Cultural Rights vs. Civil and Political Rights • Usually set in opposition of each other • High degree of interaction between rights FLAC

3. Applicability of Socio Economic Rights • Ireland is a Dualist State • International treaties entered into must be incorporated into domestic law before they are applicable within the State • Ratified Treaties cannot be relied upon in national courts until they are incorporated into Irish law but may be influential • International Human Rights instruments not justicable • State is still subject to binding obligations of international human rights instruments to which it has voluntarily signed up FLAC

4. Economic Social and Cultural Rights as Human Rights • Legal and Moral Obligations • Duty to Respect, Protect, and Fulfil • Dignity and equality of all persons • Core Values of Bunreacht na hÉireann • Respect for dignity, equality and the common good • Direct Provision Policy and Respect for Dignity & Equality • Push factors of Direct Provision System • Prohibition on Right to Work • Restriction on access to social security • HRC • Right to Reside • Social Exclusion and Lack of Autonomy FLAC

5. Bunreacht na hÉireann • Fundamental Rights Art 40°-44° • Ryan v Attorney General [1965] • Natural Law • Right to Education • Right to Health • McGee v Attorney General Walsh J “…Natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection. The individual has natural and human rights over which the State has no authority” • Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 Denham J “…[A] person who is not entitled to be in the State cannot enjoy Constitutional rights which are co-extensive with the Constitutional rights of the citizen and persons lawfully residing in the State. There would however, be a constitutional obligation to uphold the human rights of the person affected which are recognised, expressly or by implication, by the Constitution, although they are not co-extensive with the citizen’s Constitutional rights.” FLAC

6. Bunreacht na hEireann cont’d • Dignity, Equality and Concern for the Common Good • Guarantee of equality as human persons (Irish text) Walsh J Quinn’s Supermarket vs. Attorney General (1972) • Fundamental Rights vs. Immigration Policy • Oguekwe v Minister for Justice Denham J stated: Although the Irish citizen child had personal rights within Article 41.3.1 of the Constitution, “the rights are not absolute, they have to be weighed and balanced in all the circumstances of the case”. A decision had to be made by “striking a fair balance in each case” and the State may have legitimate public policy aims to prevent or restrict the exercise of such rights but these would have to be “proportionate to the legitimate aim pursued” • Dimbo v Minister for Justice FLAC

7. International Human Rights Law • UN Declaration of Human Rights (1948) • UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (1965) • UN International Covenant on Economic Social and Cultural Rights (ICESCR)(1966) • UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979) • UN Convention on the Rights of the Child (CRC) (1989) • Not binding but State is subject to scrutiny by respective Committees FLAC

8. Committees and General Comments • Each International Human Rights Instrument has a monitoring body including: • Committee on Economic Social and Cultural Rights (CESCR) • Committee on the Elimination of Racial Discrimination (CERD) • Committee on the Rights of the Child (CRC) • Committees of Independent Experts • Committees publish its interpretation of specific human rights provisions in the form of General Comments • All States parties are obliged to submit regular reports to the Committees on how the rights are being implemented • The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”. • Ireland submitted its draft third periodic report to CESCR on 1 December 2011, available at: http://www.dfa.ie/uploads/documents/Political%20Division/Human%20Rights/ireland's%20third%20periodic%20report%20to%20the%20un.pdf. FLAC

9. European Rights Instruments • European Convention on Human Rights • Article 3 (1) obligations of State Parties to conform to the provisions in the Convention • Article 8 Right to Family, Privacy • Incorporated in domestic law – European Convention on Human Rights Act 2003 • European Social Charter • Article 11 – Right to protection of health • Article 30 – Right to protection against poverty and social exclusion • European Union Charter of Fundamental Rights – note limited in scope as only applies where EU right at issue! • Article 8 – Respect for privacy and family life • Article 14 – Right to education • Article 21 – Non-discrimination FLAC

10. Right to Equality and Non Discrimination • Domestic Law • Irish Constitution • Equal Status Act 2000 • Equality Act 2004 • Transposes the Race Directive into Irish Law • Universal Declaration of Human Rights • Article 1 • Article 7 • UN International Covenant on Civil and Political Rights • Article 2 • Article 26 • UN International Covenant on Economic Social & Cultural Rights • Article 2(2) • UN Convention on the Rights of the Child • Article 2 FLAC

11. Economic Social And Cultural Rights • Right to Housing • Right to Health • Right to Family Life • Right to Food • Right to Education • Right to Work FLAC

12. Right to Housing • Article 11(1) of International Covenant on Economic, Social and Cultural Rights “State parties recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement in living conditions “ • Article 25 Universal Declaration of Human Rights • Article 5 Convention on Elimination of Racial Discrimination • Article 14 Convention on Elimination of Discrimination against Women • Article 27 Convention on the Rights of the Child • Article 8 European Convention on Human Rights • Article 31 European Social Charter • Ireland opted out of ratifying this provision FLAC

13. Right to Housing • Section 63 Housing Act 1966 defines overcrowding • Committee on Economic Social and Cultural Rights, General Comment No. 4: Individuals as well as families are entitled to adequate housing regardless of age, economic status, group or other affiliation or status and other such factors. In particular, enjoyment of this right must, in accordance with Article 2(2) of the Covenant, not be subjected to any form of discrimination • Adequate housing should have sustainable access to natural and common resources, safe drinking water energy for cooking, heating and lighting, sanitation and means of food storage • Right to adequate space and living conditions and non segregation • Right to Family Privacy FLAC

14. Children and Right to Housing • 2023 RIA residents are children – 36% of overall RIA residents • Article 4 Convention on Rights of the Child • Committee on Rights of the Child Concluding Observations • Article 24 European Union Charter of Fundamental Rights • Right to an adequate standard of living (Article 27 CRC) • National Children’s Strategy • No reference in last strategy to asylum seeking children in relation to the right to housing and the right to an adequate space of living • New strategy may provide opportunity to include asylum seeking children FLAC

15. Right to Health • Article 40.3.1 Bunreacht na hEireann • Article 12(1) International Covenant on Economic Social and Cultural Rights The State parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health • General Comment 14 Right to Health (2000) • Availability • Accessibility • Acceptability • Quality • National Intercultural Health Strategy 2007-2012 FLAC

16. Right to Mental Health • Impact of the causes of seeking asylum on Mental Health • Direct Provision perpetuating mental health trauma • Social Exclusion & Institutionalisation • CERD Concluding Observations of Ireland (2011) • The Committee is concerned at the negative impact that the policy of ‘direct provision’ has had on the welfare of asylum seekers who, due to the inordinate delay in the processing of their applications, and the final outcomes of their appeals and reviews, as well as poor living conditions, can suffer health and psychological problems that in certain cases lead to serious mental illness. FLAC

17. The Right to Health for Women • Article 12 Convention on the Elimination of Discrimination Against Women State Parties shall take all appropriate measures to eliminate discrimination in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning • General Comment No 14 The realisation of women’s right to health requires the removal of all barriers interfering with access to health services, education and information, including the area of sexual and reproductive health • Abortion • Article 40.3.3 • Article 16(1)(e) Convention on the Elimination of Discrimination Against Women (CEDAW) • Concluding Observations UN Human Rights Committee, CEDAW • Female Genital Mutilation & Programme for Government • We will enact legislation to prohibit the practice of Female Genital Mutilation for the protection of girls and women • FGM & UNCAT: Plan to introduce FGM Bill once Seanad has been put in place • FGM Bill currently at Committee Stage FLAC

18. Right to Family Life • Article 41 Bunreacht na hEireann • 1° The State recognises the Family as the natural, primary and fundamental unit group in Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law • 2° The State, therefore, guarantees to protect the Family in its constitution and authority as the necessary basis of social order, and as indispensable to the welfare of the Nation and the State • Article 8 European Convention on Human Rights • Article 12, 16(3) of Universal Declaration of Human Rights • Preamble to Convention on the Rights of the Child FLAC

19. Right to Family Life vs Public Policy • Oguekwe vs Minister for Justice (2008) & Dimbo vs Minister for Justice (2008) • Irish citizen child had personal rights under Art 40.3.1 and rights of family within Article 41 • Rights not absolute • Public policy concerns would override such rights • Impact of ECJ case Zambrano (2011) on Right to Family Life • Distinction between children born in Ireland and Irish citizen children • Citizenship Referendum and impact on children born prior to referendum FLAC

20. Right to Food • Article 11 ICESCR Right of everyone to an adequate standard of living for himself and his family, including adequate food • General Comment No. 12 The right to adequate food is realised when every man, woman and child, alone or in a community with others, has physical and economic access at all times to adequate food or means for its procurement • Discrimination in access to culturally adequate food • Right to Food in the Direct Provision System • Reduction in Self Catering Facilities • 2 self catering accommodation centres. FLAC

21. Children & The Right to Food • Infant Feeding Guidelines for Direct Provision Centre's in Ireland • Weaning children • Cultural wishes/traditions not taken into account • HSE guidelines on feeding • “Prepare homemade food so you know exactly what your baby is eating” • Not possible for direct provision residents as food is provided to them from canteen • Cannot decide on what time to feed their children- set meal times • Child growth and extreme poverty- National Children’s Strategy • Diet of children linked to socio economic class of parents • The less they experience poverty and social exclusion the better the eating habits • Responsibility for healthy eating lies with the parents • Link between low income levels and food poverty FLAC

22. Right to Education • Article 42.1, 42.3.2, 42.4 of Bunreacht na hEireann • Family as the primary and natural educator • Curtailed with Direct Provision system • State inherently control residents in Direct Provision • Free Primary School Education • Non Denominational Schools • CERD and HRC Concluding Observations The Committee recommends that the State party accelerates its efforts to establish alternative non-denominational or multi-denominational schools and to amend the existing legislation that inhibits students from enrolling into a school because of their faith or belief. (CERD concluding observations 2011) FLAC

23. Right to Education for Adult Direct Provision Residents • Restricted access to education for adult residents • Have access to basic English Language and adult literacy tuition provided by Vocational Educational Committees (VEC’s) and FETAC (Further Education and Training Awards Council) Courses • Access to education funding limited and under scrutiny by CWOs • Non recognition of qualifications • Difficulty for aged out minors in accessing 3rd level education FLAC

24. Right to Work • Section 9(4)(b) Refugee Act 1996 • Individuals seeking protection in Ireland are prohibited from working • Article 6 International Covenant on Economic Social and Cultural Rights grants “the right to everyone to the opportunity to gain his living by work which he freely chooses or accepts” • Article 15 EU Charter of Fundamental Rights • “Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation” • EU Reception Directive • Ireland and Denmark only countries not to sign Directive • Grants minimum standards for the reception of asylum seekers • Allows for Government to grant the right to work to asylum seekers after a period of time which each State can stipulate • Asylum seekers entitled to participate in certain training courses, but prevented from accessing FAS courses FLAC

25. Access to Justice • Access to Justice as a Human Right • Airey v Ireland [1979] 2 E.H.R.R. 305 • “Everyone is entitled to a fair and public hearing within a reasonable period of time by an independent and impartial tribunal established by law” • Illegal Immigrants Trafficking Bill 1999 • ...in the case of applications to the High Court to challenge the validity of such decisions or other matters, a non-national is entitled to the same degree of natural justice and fairness of procedures as a citizen • O’Donoghue v Legal Aid Board • Refugee Legal Services • Provides advice and representation in: • Asylum applications • Refugee Appeals Tribunal • Leave to remain applications • Subsidiary Protection applications • Assists in other immigration and deportation matters (only in certain case) FLAC

26. Monitoring State’s Obligations • International Human Rights Instruments not always recognised in Court due to our dualist legal system • Signed and Ratified – Obligations on the State to realise those rights • Duty to Respect, Protect and Fulfill • Non Discrimination and Progressive Realisation • Monitoring accountability • Identify deprivations and inequalities • Identify main determinants causing these deprivations • Assess the adequacy of policy efforts to address these factors • Assess whether policy failures are due to inability or lack of political will FLAC

27. Identifying Inequalities and Deprivations • Human Rights Indicators • International Human Rights Standards • State Commitments Programme for Government Policy and Strategy Documents • Past outcomes Progression or Regression • Disaggregated National Data (Male/Female, Indigenous/Non Indigenous) Inequalities and Discrimination amongst access to socio economic rights • Cross Country Comparison IRC Alternative Report FLAC

28. Main Factors Causing Deprivation • Interdependence between factors causing deprivation reflects the interdependence and indivisibility of socio economic rights • E.g. Right to health may be affected by access to food • Right to Health embraces wide range of socio economic rights • Promote conditions that can lead to healthy life • Direct and Indirect Determinants • Adequacy of policy efforts: Supply versus Demand • Provisions of health & education versus demand (Poverty and Cultural Barriers) • Supply • Measuring availability, accessibility and quality of services • Demand • Direct and indirect Policy Interventions FLAC

29. Policy Failure: Inability or Lack of Political Will • Resources Argument • Progressive realisation of rights • Minimum core obligations • Basic level of subsistence necessary to live in dignity • Obligation to progressively realise socio economic rights to the maximum of available resources • Article 2(1) International Covenant on Economic Social and Cultural Rights • Prohibition on retrogressive measures • Need to be justified FLAC

30. Resources & Links • See our website www.flac.ie • FLAC report: One Size Doesn’t Fit All (2009) • Direct Provision Campaign page: http://www.flac.ie/getinvolved/campaigns/current/direct-provision-campaign/ • FLAC News • Office of the High Commissioner for Human Rights www.ohchr.org • Human Rights Treaty Bodies • General Comments • Concluding Observations FLAC