Direct Provision Allowance: Origins 1997-2003

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Context

The first governmental hints that asylum seekers would be removed from the Irish social welfare system came on 22 October 1997. The then Secretary General of the Department of Social, Community and Family Affairs, expressed concerns about ‘welfare fraud’ by asylum seekers. In response, the then Secretary General for the Department of Justice, Equality and Law Reform, stated on 04 November 1997, that these reports of fraud were of “the newspaper’s own-making.”  This narrative of ‘fraud’ persisted. By 27 July 1998, the then Minister for Justice, John O’Donoghue indicated that a system of provision of accommodation, food and monetary allowances, would be introduced for those seeking asylum in Ireland. Concerns surrounding pressures on accommodation, within Dublin, abound. By October 1999, there had been suggestions that there needed to be a “smart card” or “debit card” for asylum seekers. The Department of Health and Children argued in November 1999, that whatever approach was adopted, this may “ultimately require legislative force.” It was clear by November 1999 that high-level officials within Justice and Social Affairs government departments wanted to reduce or eliminate cash payments to asylum seekers. At this stage, asylum seekers would have been entitled to full rate supplementary welfare allowance and rent supplement. Throughout correspondence with officials, the clear rationale for the introduction of the system of direct provision, was to (i)reduce fraud; and (ii) ensure similar arrangements akin to the United Kingdom.

Sources: Origins of Direct Provision 10/10/1997 to 04/11/99 (Freedom of Information Documents).

Setting Direct Provision Allowance

On International Humans Day 1999, 10 December 1999, the rate of direct provision allowance was agreed upon. Adults would be paid IR£15 (€19.10) per week, with IR£7.50 (€9.10) per week for children. At this stage, individuals could still have potentially qualified for some contingency welfare payments e.g. lone parents, pension, and child benefit, but it was clear that full rate supplementary welfare allowance would no longer be paid to asylum seekers.Within weeks of the setting of this rate, concerns were expressed by the Department of Justice, that the whole-scale reduction of welfare payments to many asylum seekers to these new rates would be unlawful. The Department of Social Affairs, however stated that supplementary welfare allowance did not have to be paid at its full monetary rate, coupled with rent allowance, but it could be paid in kind, and to asylum seekers as a group. Various health boards and community welfare officers raised concerns with the legality of doing so,given that supplementary welfare allowance was a discretionary payment, and should not be subject to governmental/ministerial interference as to whether individuals meet the legislative criteria (see further, Thornton,2013).As is clear from the significant correspondence on this issue throughout the year 2000, community welfare officers often ignored the limited supplementary welfare allowance rates. The questions of legality persisted (as they did for many years, until the C.A and T.A. case in the High Court in 2014).

Sources: Origins of Direct Provision 10/12/1999 to 15/05/2000 (Freedom of Information Documents).

On the Margins of Law

The formal introduction of the system of direct provision occurred on 10 April 2000 with the issuance of Supplementary Welfare Allowance Circular 04/00. This circular purported to remove asylum seekers from the Irish welfare state.  Yet, in reality, this for a short period of time became the removal of single adult male and female asylum seekers from the Irish welfare state. Child benefit would still be payable, as would other contingency welfare payments. Yet, some Community Welfare Officers simply ignored Circular 04/00 and in “quite a number of instances Community Welfare Officers are paying full basic Supplementary Welfare Allowance and rent supplements and rent deposits to asylum seekers who leave or do not avail of direct provision.” By the end of April 2000, there were just 349 persons in direct provision. The then Minister for Justice, John O’Donghue expressed his frustration to the then Minister for Social Affairs, Dermot Ahern, (03 May 2000) stating:

“it is clearly contrary to Government policy and, if allowed tocontinue, will totally undermine the systems in place for direct provision, andindeed, Government policy.”

Dermot Ahern’s response to John O’Donoghue (17 May 2000) was to note that the direct provision system could not be introduced “overnight, but such a system could be implemented in weeks.” Interestingly Ahern also acknowledged that direct provision, for particular asylum seekers, may not be suitable and,

“…in any cases where a social welfare payment may be made, wemust not exclude the possibility that this is fully justified by the particularcircumstances of the individual or family concerned.

Pointedly, Ahern finished his letter by noting:

“Unless and until asylum claims are decided and followed throughin a timely manner in volumes that at least match numbers arriving, then wewill not reach the outcomes which we all wish to see and are striving for inthis area.”

Yet,correspondence between government departments and health boards throughout the year 2000, noted the significant discomfort of some Community Welfare Officers and indeed Social Welfare Appeals officers with the system of direct provision.Correspondence (e.g. 25 July 2000) notes that some Appeals Officers were significantly concerned with poor standards of accommodation in direct provision and felt duty bound, under the then Social Welfare Acts, to grant asylum seekers supplementary welfare allowance and rent supplement. By December 2000, over 3,000 persons were in direct provision.

By this stage, the Department of Justice were becoming increasingly frustrated by the Department of Social Affairs handling of asylum seeker entitlement to social welfare payments (see, 29 July 2001).  The Principal Officer for S.W.A., Mr Brian O’Raghaillaigh stating that,

“making exceptions in appropriate cases strengthens theGovernment’s Direct Provision policy…One cannot deal with the entire range ofsituations arising in the overall population of asylum seekers with a “one sizefits all” approach.

O’Raghaillagh continued,

“[I]t is to be expected that people who have been in DirectProvision for a long period will experience difficulties and we will have torespond to those in a humane manner….it is all the better if the situation doesnot arise in the first place, as will be the case when all asylum claims aredealt with expeditiously.”

When Dr Angela Veale and Prof Bryan Fanning released their report Beyond the Pale (the very first exploration of the system of direct provision in Ireland). The authors concluded concluded that direct provision was creating and maintaining child poverty, distancing from host communities, and interfering with family life. This report was dismissed by the then Taoiseach, Bertie Ahern, on the following basis:

“…the sample that forms the basis for the report is 43 familiesin Limerick, Cork and Ennis, of which 30% were living under direct provision.Therefore, it was a very small sample.”

In the month this statement was made, November 2001, there were over 4,000 people in direct provision.

Sources: Origins of Direct Provision 03/05/2000 to 16/07/2001 (Freedom of Information Documents).

On the Limits of Reforms until 2003

There was an increasing backlog of persons within the asylum status determination process. A proportion of Irish children now resided in direct provision (this was pre- the 27th amendment). The Department of Social Affairs had proposed to permit parents of Irish children who were asylum seekers to work (see 29 June 2001 to 19 April 2002). This proposal never became public knowledge and was never adopted. However, in 2002 and 2003, concerns continued to be expressed by Community Welfare Officers that direct provision allowance was “manipulating the Community Welfare Service” by deeming asylum seekers to be ‘undeserving’ of minimal societal supports, other than direct provision. Indeed, at a forum with Trade Union representatives of Community Welfare Officers, there was a request that the rights and obligations of asylum seekers be placed on legislation(see. Report extract attached to letter 10 July 2002). By April 2003, there were just under 4,000 people in direct provision.

Sources: Origins of Direct Provision 20/09/2001 to 08/04/2003 (Freedom of Information documents).

Understanding Origins

The picture painted from the FOI documents released today evidences government departments in a state of disarray. Policy was formulated on the basis of providing a carbon copy, to a degree, of how the United Kingdom’s system was intended to operate. The United Kingdom’s system, upon which direct provision,and in particular limited access to cash, was based, never went beyond a pilot phase.

Protest and discussion of reform of direct provision is something that emerges much stronger in later years. It is important to emphasise that even at the beginning of the creation of the system of direct provision, there was significant concerns expressed by (the then) Health Boards, by individual departmental officials, by trade unions, and by some Community Welfare Officers, who as a matter of course granted Supplementary Welfare Allowance payments, and did so on the basis of their powers under primary legislation.

Through understanding the haphazard introduction of the policy of direct provision, and the establishment of the rate of direct provision allowance by ministerial officials (with limited input from any Minister it would seem from the FOI documents available), this provides a sense of how asylum seekers, at the time,existed outside of law and legalism. It is this placement, outside of law, I argue, that had been a key means of limiting and restricting the rights of asylum seekers. Only since July 2018, have asylum seekers social rights been given any legislative underpinning. That it took almost twenty years for this to occur, as will be evidenced within other aspects of this project, is not surprising. Administrative fiat, civil servant control and Ministerial lack of oversight, is how and why the system of direct provision we know today came into being.