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...legal regulation of reception conditions for asylum seekers. Legal protection from the Irish courts in ensuring a degree of socio-economic protection to asylum seekers is unlikely to be forthcoming. Traditional arguments on asylees' rights as being "different" from Irish citizens and those of other residents have been utilized to justify exclusion from the welfare state. Ensuring the reception of asylum seekers within traditional welfare state structures, where their rights and needs are considered in a similar manner to those of citizens, is the underlying argument of this paper.
Resume
Ce n'est qu'au cours de ces dernieres annees que l'Irlande a eu a faireface a un nombre sensible de demandeurs d'asile arrivant sur ses rivages. Durant cette periode, l'accueil des demandeurs d'asile en attente de la determination de leurs revendications du statut de refugie a radicalement change. Le cadre legal des conditions d'accueil des demandeurs d'asile est passe de l'inclusion a l'exclusion. Il y a tres peu de chance de voir les tribunaux irlandais fournir une protection legale aux demandeurs d'asile, ce qui leur assurerait un degre quelconque de protection socio-economique. Les arguments traditionnels selon lesquels les droits des personnes admises a titre d'asile sont "differents "des droits de citoyens irlandais et d'autres residants, ont ete utilises pour justifier cette exclusion de l'Etat-providence. L'argumentation sous-jacente de cet article est la necessite d'assurer l'accueil des demandeurs d'asiles a l'interieur des structures traditionnelles de l'Etat-providence, ou droits et besoins sont consideres de facon semblable aux citoyens.
Introduction
The hallmark feature of the Irish reception system for asylum seekers has been the continual withdrawal and diminution of social rights on the grounds of preserving the integrity of immigration controls and protection of the welfare state from those who are viewed as not having a definitive right to be within the country. The Irish reception system separates asylees flora mainstream welfare provision. It denies an asylum seeker the right to be self-sufficient. The reception regime insists that the asylee reside in particular locations, away and apart from the host community. The asylum seeker is viewed as neither a citizen nora warranted class of individual deserving of social rights on par with others in need. The development of a separated social welfare regime for asylum seekers was not inevitable. However, past exclusionary practices towards immigrants may have underpinned Irish Governmental responses to the creation of the current reception conditions for asylum seekers.
This article will first consider European law and international law relating to the reception of asylum seekers and socio-economic rights thereof. After a historical analysis of reception conditions within Ireland, current reception conditions for asylum seekers will be considered. Both the protection offered by the Irish courts and political and societal responses to reception standards and practices will also be examined.
From a country of mass emigration to a country of net immigration, Ireland only began to experience appreciable asylum flows in the last decade. (1) Throughout this period there has been a tendency to exclude asylum seekers from supports that are seen as essential to allowing citizens and legal residents to live with a basic degree of dignity. "Reception conditions" refer to those social support conditions in place which are provided to asylum seekers whose claim for refugee status has not yet been determined. These supports range from accommodation, provision of food, and clothing to financial assistance. Further supports include education for children and, in some cases, the right to work or the right to participate in vocational training for adult asylees.
The Irish welfare system, wherein access was once based on the "need" of an individual, must now consider a person's legal status in the country. Asylum seekers, who have authorized presence within Ireland, (2) have been greatly affected by exclusion from the traditional structures of the welfare state. Justifications have been proffered for a separate welfare system for asylum seekers, on the basis that "[v]oters became concerned that the welfare state should not be a honey pot which attracted the wretched of the earth." (3) The argument is made that while in the host State an asylum seeker enjoys a standard of living lar higher than she would enjoy if she were back in her country of origin. This, it has been argued, attracts asylum seekers from their countries of origin. (4)
Within Ireland, asylum seekers exist as a unique category of immigrant, wherein there are no statutory or constitutional rights to social support. Support is provided on the basis of ministerial circulars, wherein parliamentary scrutiny for the whole system of reception for asylum seekers is absent. Limitations that exist within the reception system for asylum seekers do not sit well with the Irish government's commitments to social inclusion, solidarity, multiculturalism, and anti-racism. (5) This article considers the legal and political debates which led to the exclusion of asylum seekers from a formerly inclusive social welfare system.
European and International Law
European Union Law
The Tampere Conclusions committed the European Union to create "a Common European Asylum System (CEAS), based on the full and inclusive application of the Geneva [Refugee] Convention." The CEAS was to include inter alia the creation of minimum conditions of reception of asylum seekers. (6) The legal basis for the EU's actions within the asylum and migration field is located within Title IV of the Treaty Establishing the European Community (TEC). (7) Due to the difficult nature of negotiations with Denmark, European countries agreed that this country would not be bound by any legal standards of CEAS. In relation to Ireland and the UK, both countries had an option to opt in to CEAS measures. This allows both countries to choose which instruments to adopt under the CEAS. Therefore, there is no compulsion to adopt measures which Ireland or the UK feels to be detrimental to their own interests.
In the field of reception of asylum seekers, the European Union has adopted the Reception Standards Directive. (8) Ireland did not opt in to this directive. The Reception Standards Directive seeks to ensure that asylees within the EU will have a dignified standard of living for the duration of their asylum claim. (9) The directive also aims to prevent secondary asylum flows within the Union due to a perception of more generous reception conditions in other EU countries. (10) The directive sets out a number of very limited and qualified rights which the applicant may be entitled to. The right to maintain family unity within state reception measures, (11) the right to work after one year if the asylum application has not been considered at first instance, (12) the right of minors to receive education, (13) the right to basic health care, (14) and the right to reception conditions that can sustain an individual adequately (15) are all provided for in the directive. The directive allows for the reduction or withdrawal of reception conditions in specified circumstances. (16) There are provisions to provide for more ample reception conditions when dealing with an individual who has a special need. (17) A process must be in place so that those who are refused reception may challenge that decision in an appeal to a court or tribunal. (18) The socio-economic rights of asylum seekers under Irish law therefore remain beyond the remit of the Reception Standards Directive.
International Law and Standards
Ireland is a signatory to many international treaties which directly impact on the rights of asylum seekers. The 1951 Convention relating to the Status of Refugees [Refugee Convention] protects the rights of asylum seekers in a number of respects. (19) The United Nations High Commission for Refugees (UNHCR) has argued that asylum seekers must be treated on the assumption that they are refugees. (20) In this regard, those claiming refugee status who are "within the territory of" (21) and/or "lawfully present in" (22) a Member State should be entitled to a number of significant rights. The legal basis for entitlement to these rights is the Refugee Convention itself. (23) Depending on the rights in question, the level of rights protection need either be on par with that of nationals (24) or be no less than that accorded to aliens generally. (25) UNHCR has stated that reception conditions of asylum seekers must acknowledge the "centrality of applicable international human rights law and standards in the development and implementation of reception policies." (26) The maintenance of human dignity and self-sufficiency should be the core aims of reception conditions. (27) Asylees should have access to their basic support needs, (28) which should include support for vulnerable asylum seekers (29) and which should ensure family unity. (30)
The International Bill of Human Rights (31) recognizes the vast array of civil, political, economic, social, and cultural rights which humanity possesses. These rights inhere in all individuals "without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." (32) The rights granted within the International Bill of Human Rights inhere in "everyone," (33) in "every human being," (34) to "a11 persons," (35) and "no one" (36) can be arbitrarily deprived of these rights. The supervising bodies of the civil and political treaty (Human Rights Committee) (37) and the socio-economic treaty (Committee on Economic, Social and Cultural Rights) (38) have outlined the significance and applicability of both treaties to non-nationals. (39) Asylum seekers also enjoy the rights set out in the other main international human rights treaties to which Ireland is a party. (40)
Historical Analysis of Reception Conditions in Ireland
Introduction
The Irish welfare system is very much influenced by the welfare system of its former colonial ruler, Britain. (41) Cousins surmises that the other factors which contributed to the overall development of the Irish welfare state were the role of the Catholic Church and the emphasis on family, (42) the (until recently) underdeveloped nature of the Irish economy, (43) and the role of the State. (44) The Irish welfare state is very much influenced by the Beveridge welfare state model. This model advocates three kinds of benefit: social insurance, social assistance, and universal child benefit. (45)
The Early Arrivals
Ireland had very little experience with catering for asylum seekers and refugees prior to the 1990s. Refugee status determination procedures were only put in place in the latter part of the twentieth century. The State had played a less than honourable role in refugee protection during World War II. (46) Ireland acceded to the Refugee Convention in 1956 and to the Protocol in 1967. (47) Ireland accepted 539 Hungarian refugees in 1956 who had fled following the failed uprising. (48) At a governmental level an Interdepartmental Conference on Hungarian Refugees (49) was established to prepare for the hosting of this refugee population. The Irish Red Cross was responsible for seeing to their material needs. Some money was provided and the refugees received free medical attention, clothes, food, and other essential items. (50) There was severe discontent within the army camp where the refugees were housed, mainly arising from matters to do...
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