State disputes IHREC's right to pursue parts of asylum seeker challenge

The case centres on the Irish Human Rights and Equality Commission's challenge to the Government’s failure to provide accommodation to all men seeking international protection

This week, IHREC’s lawyers told the court there was renewed urgency to the case as the number of international protection applicants left homeless has risen to more than 600. File picture: Arthur Carron/Collins Photos

Lawyers for the State dispute the entitlement of the Irish Human Rights and Equality Commission (IHREC) to pursue certain aspects of its challenge to the Government’s failure to provide accommodation to all men seeking international protection here.

Chief State Solicitor, Maria Browne, acknowledged the organisation has an “undisputed statutory entitlement” under section 41 of the 2014 IHREC Act to bring representative proceedings concerning the human rights of a person or class of people in certain instances.

However, she said in correspondence put before the court this week, it is not accepted that the statutory definition of “human rights” contained in section 29 of the 2014 Act extends to specific legal entitlements originating from EU directives related to the State’s obligation to accommodate asylum seekers. She said the relevant EU directives are referred to by IHREC for the majority of reliefs it seeks from the court.

Ms Browne suggested to IHREC’s lawyers that this issue requires preliminary directions from the court so the proper scope of the case is clear from the outset.

The case against the Minister for Equality and Integration, the Attorney General and Ireland, initiated last month, is IHREC’s first invocation of its statutory powers under the 2014 Act. Seeking to distinguish its action from earlier ones brought successfully by individual asylum seekers left homeless upon arrival, the commission told the court its challenge is system-wide.

It is also seeking mandatory orders that would require the Minister for Equality and Integration to establish a system that vindicates the fundamental rights of international protection applicants.

The High Court ruled last April that an Afghan man’s fundamental right to human dignity was breached by the State’s failure to provide him with “material reception conditions”, including accommodation, shelter, food and basic hygiene, when he arrived here in February.

This week, IHREC’s lawyers told the court there was renewed urgency to the case as the number of international protection applicants left homeless has risen to more than 600. The figure was 259 when the organisation initiated its action.

Ms Justice Niamh Hyland said she saw the correspondence between the parties and agreed to adjourn the case to Friday.

On its website, the Department of Equality and Integration says that “despite intensive efforts” it is not able to provide accommodation to all international protection applicants due to the “severe shortage”. All male applicants are assessed for significant vulnerabilities and health issues and prioritised for accommodation as necessary, it says.

Those without shelter are receiving an increased weekly allowance of €113.80, which is €75 more than those being accommodated.

IHREC evidence

In the correspondence put before the court on Tuesday, Ms Browne questioned IHREC’s “unorthodox” approach to presenting evidence to the court.

She said IHREC is relying on first-hand experiences of international protection applicants who have been anonymised within affidavits sworn by IHREC agents. The anonymisation of these witnesses makes it “impossible” for the State parties to engage with, interrogate or verify the evidence in any meaningful way that would ensure a fair trial, she said.

While not disputing the accuracy of the recordings, it would be “unprecedented” for one side to present evidence that the other side is obliged to accept without question or that it cannot verify, she added.

“Crucially”, Ms Browne said, there has been no adequate justification for the anonymisation process, and previous claimants have been prepared to swear their own affidavits. She noted the International Protection Act of 2015 prevents publishing matters that would reveal the asylum seekers’ identities.

Urgency

Her January letter came in response to communications from IHREC’s solicitors pressing that the organisation views the matter as “very urgent” due to the rise in people awaiting accommodation, the inclement weather conditions over Christmas and media reports of incidents and attacks on accommodation facilities intended to house international protection applicants.

IHREC’s solicitor, Clare McQuillan, asked the State to outline its position and to agree to having the case managed by the court to ensure they are heard in an efficient and cost-effective manner.

Responding, Ms Browne said she agreed the case should be heard “expeditiously” and that the personal situation of people awaiting accommodation are urgent. 

However, she did not see the same urgency in this case, given the court has already ruled on the “essential substance of the rights advanced in these proceedings” and the minister has repeatedly acknowledged the State’s legal obligations in this arena.

The High Court ruled last April that an Afghan man’s fundamental right to human dignity was breached by the State’s failure to provide him with “material reception conditions”, including accommodation, shelter, food and basic hygiene, when he arrived here in February.

The Court of Justice of the European Union has been asked to consider legal questions to assist a High Court judge who is considering whether to award damages to asylum seekers forced to sleep rough upon arrival in the State.

The State announced last December 4 that for the second time it could no longer provide accommodation to all newly arrived male applicants.