Direct provision settings may be unlawful

EU and Irish human rights laws require own-door accommodation.
Direct provision settings may be unlawful

Irish, EU, and international human rights law requires the State to provide safe, own-door accommodation for those in direct provision during the Covid-19 crisis, according to some experts.

The legal opinion was drafted by prominent human rights lawyer and senior counsel Michael Lynn and barrister Cillian Bracken for the Irish Refugee Council (IRC). The opinion was distributed widely by the Public Interest Law Alliance (PILA) to NGOs earlier this month.

The IRC sought the advice on what the State’s legal duties are where people in direct provision and emergency accommodation centres are unable to carry out adequate social distancing.

The legal opinion, which has been sent to Justice Minister Charlie Flanagan and Health Minister Simon Harris, said the State’s obligation to protect the right to life “extends to the provision of single or household occupancy units for those in shared accommodation”, given HSE guidelines on reducing contact with people outside your household.

The opinion states: “It is not clear how this would be possible to achieve in shared multi-household occupancy accommodation or how else the obligations placed on the State by the Constitution, Convention [European Convention on Human Rights (EHCR)], and Union law, interpreted in light of the Charter [of Fundamental Rights and Freedoms of the European Union], and ECHR, could be realised. This is particularly the case for those in at-risk those, especially those who should cocoon.”

The opinion states that own-door accommodation is required to vindicate a range of other rights under EU directives, European human rights law, and the Irish Constitution, including the right to freedom from inhuman or degrading treatment, the right to protection of the person and to bodily integrity, and the right to equality and non-discrimination, among others. It further names the right to health and the right to housing under international human rights law.

The legal opinion also states that there “appears to be a particular incoherence” in how the State is approaching its obligations to those in accommodation centres.

“The [Health] Act of 2020 allows the Minister for Health by regulation to effectively criminalise the sorts of conduct, such as failing to socially distance or self-isolate, that the Department of Justice and Equality seeks to impose upon residents in accommodation centres by failing to provide single or household occupancy accommodation,” it states.

It also points out the measures for those in direct provision seem to “directly contradict” the State’s own guidelines and seem to be “markedly different” to that approach being taken to those in homeless emergency accommodation.

The legal advice echoes the open letter to the Government earlier this month signed by more than 920 prominent lawyers, doctors, public health officials, and academics which claimed that the State may be in breach of ECHR obligations unless it provides own-door accommodation to people living in direct provision.

Locals joined more than 90 residents of a direct provision centre in Caherciveen, Co Kerry in asking the Government to move the remaining group out of the centre after a Covid-19 outbreak.

IRC chief Nick Henderson acknowledged measures had been taken to transfer some out of direct provision and to cocoon the vulnerable, but called the Caherciveen situation “extremely worrying”.

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