From 2004, the Department of Social and Family Affairs interpreted the habitual residence condition in Irish social welfare law as definitively removing asylum seekers from entitlement to all social welfare payments, but for direct provision allowance. The habitual residence condition was introduced during the 2004 accession of new EU Member States. The purpose of the habitual residence condition was to limit access to social welfare payments for those without a strong connection to the State. In introducing the measure, the then Minister for Social and Family Affairs stated that it,
…is designed to safeguard the social welfare system by restricting access to social assistance and child benefit payments for people from other countries who have little or no connection with Ireland. All persons claiming welfare payments, including nationals of the new EU member states who applied for rent supplement after 1 May, are subject to the habitual residence condition. People who fail to satisfy the habitual residence condition are offered the option of being referred to the Reception and Integration Agency (RIA) of the Department of Justice, Equality and Law Reform who facilitate their departure home and provide full board accommodation pending departure.
The rationale for its administrative application for persons seeking asylum, was that asylum seekers were in Ireland solely to have their asylum claim determined, therefore could not ever be habitually resident for the purposes of Irish social welfare law.
Administrative practices between 2005 and 2009 saw deciding officers and appeals officers deny asylum seekers access to child benefit and other contingency based social welfare payments such as one parent family payment, old-age pension and disability allowance. With this been the key argument, and given that direct provision allowance was paid as a supplementary welfare allowance payment, the Department of Social and Family Affairs in 2006 claimed that it no longer had any legal authority to make weekly payments to asylum seekers, and the payments were now outside its powers. The Department of Social and Family Affairs suggested that direct provision accommodation centre managers should be the ones who made the weekly payments, paid from the budget of Justice. In ignoring the claim that the payments were outside the powers of Social and Family Affairs, Justice rejected the suggestion that Centre managers make the weekly payments. Justice did so on the basis that,
[I]t would give accommodation providers an undue and inappropriate degree of control and power over their clients…[and would] generate enormous resentment and have significant political consequences.
In 2007, Social and Family Affairs proposed an amendment to social welfare law, providing them with a legal basis for making weekly direct provision allowance payments for asylum seekers. Proposed s.24 of the Social Welfare and Pensions Bill 2007, would have provided clear legal authority for Social and Family Affairs to make the weekly payment for asylum seekers. Yet, for unclear reasons Justice refused to agree to making this amendment to social welfare law. In a Parliamentary Question by Róisín Shorthall on 12 December 2007, the Minister for Social and Family Affairs stated that the payment of direct provision allowance was a matter for Justice, which clearly was not the case. So, in private, Social and Family Affairs felt they were acting unlawfully in payment of direct provision allowance. Yet, in public, the then Minister for Social and Family Affairs, Martin Cullen, lied to a T.D. stating his department had no role in the weekly payment. This neat trick of administering the shadow welfare payments for asylum seekers continued to be used to justify the non-discussion of direct provision allowance in the Oireachtas.
Throughout this period, the Free Legal Advice Centres (FLAC) challenged this interpretation of the habitual residence condition as excluding asylum seekers. In June 2009, a decision of the Chief Appeals Officer of the Social Welfare Appeals Office determined that asylum seekers could be habitually resident for the purposes of Irish social welfare law, and in this particular case, an asylum seeker should be entitled to child benefit. The Chief Appeals Officer noted that if the Irish Parliament had sought to remove asylum seekers from entitlement to child benefit, it would have done so clearly and categorically. Given the length of time the person seeking asylum was in the State, Ireland had clearly become her ‘centre of interest’. It was not until September 2009, that Justice was made aware of this decision, due to the publication of information of the decision on FLAC’s website. Justice stated that the decision was incorrect, went against a Supreme Court decision, which the Chief Appeals Officer noted simply could not have been of relevance given that the comments of the Supreme Court were by one judge and said ‘by the way’, and did not deal with a social welfare law issue. Justice stated that the decision had the potential to increase numbers of persons seeking asylum in Ireland, which Justice said had reduced significantly due to the existence of the system of direct provision. Social and Family Affairs, in response, explained that while it agreed with much of the assessment of Justice, they would deal with the matter by legislative change.
The Fianna Fail and Green Party government introduced an amendment to Irish social welfare law explicitly excluding asylum seekers from accessing any social welfare payment. This nullified the impact of the Chief Appeals Officer decision, ensuring that direct provision allowance was the only payment asylum seekers As with all political parties who opposed direct provision in opposition, once in government, the Green Party cared little about enforcing poverty and destitution upon asylum seekers. For Fianna Fail, this was just the continuation of their decade long policy of direct provision.
Liam is a socio-legal human rights academic in UCD School of Law.