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February 25 2014

The right to health in times of austerity: the Greek example

imagesWe are delighted to welcome this guest post from Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate  at Durham Law School. She is currently researching on history and theory of public international law. You can contact her here or follow her on Twitter @ntinatzouvala Since the outbreak of the financial crisis in 2008 and the austerity measures adopted by a significant number of states, especially in Europe, questions about social rights and their role in this changing economic, legal and social landscape have become prominet stearing an interesting debade. The issue seems to be gaining again some momendum after the prominent journal on health issues Lancet published last week an article that seeks to evaluate the impact of the Greek austerity package on public health. Undeniably the account is devastating. According to the authors the public hospital budget was reduced by 26% within two years (2009-2011) and further cuts are to be expected. This was a direct consequence of the objective set by the Troika to reduce public expenditure for public health at 6% of GDP which is the lowest amongst the pre-2004 EU Member States. This reconstructing seems to have direct effects on the citizens’ health care standards. The workload of the staff is increasing and it is estimated that the waiting lists (for surgeries etc) are getting longer. Since co-payments for certain medicines have increased by 10% and a prescription fee (1 euro) was introduced, while incomes are shrinking, a study showed that 70% of the respondents in a rural Greek province (which, importantly, is not amongst the poorest) are struggling to buy their medicines. In 2011 a 5 euros fee was introduced in public hospitals for outpatient visits, with the almost expressed purpose to exclude irregular immigrants who were thought to be “high jacking” the system. Given though the rising levels of poverty and unemployment, Greek nationals were directly affected too; an attempt to introduce a 25 euros fee was withdrawn after significant public outcry. Further, the fact that health insurance is linked to employment status combined with the rising levels of unemployment or informal, illegal employment practices results in an estimated 800,000 people to be left without any kind of health coverage. Further, the decreased number of syringes and condoms distributed to drug users resulted in a significant increase of HIV infections amongst this specifically vulnerable population (from 15 in 2009 to 484 in 2012). The indirect health implications of the current management of the crisis should not be underestimated as well. As Durkheim has pointed out in his research on suicide, rapid socioeconomic downgrade is prone to influencing mental health. Simultaneously, public expenditure on mental health was reduced by 20% between 2010 and 2011 and by a further 55% between 2011 and 2012. Young women and children are of particular vulnerability.

The question naturally arising for lawyers is whether and how the right to health comes into play in such conditions of extreme austerity that directly and indirectly influences the health and the access to health care for a significant proportion of the population. Could a human rights- based rhetoric and litigation provide some protection against the most extreme results of such policies? To begin with, it is worth noticing that despite the Greek Constitution providing that “The State shall care for the health of citizens and shall adopt special measures for the protection of youth, old age, disability and for the relief of the needy”, (for a full text of the Constitution in English see here), Greek Courts have been reluctant in attaching specific legal effects to this provision well before the recession. Secondly, it is worth reflecting on whether international guarantees to the right to health as stipulated in the UN Declaration of Human Rights, the UN Convention of Economic Social and Cultural Rights and the General Comment 14 of the ECOSOC Committee. By now it is received wisdom that the right to the highest attainable standard of health does not equal a right to be healthy. Rather, it creates a nexus of freedoms (for example the right to be free from torture or non-consensual treatment) and entitlements (equal opportunities for health protection) and corresponding state obligations. Availability, accessibility, acceptability and quality are generally considered the four elements that render health care provision compatible with the right to health.

Budgetary and general capacity concerns along with the idea of “gradual realisation” constitute the two broad caveats when it comes to the enjoyment and realisation of social rights and the right to health constitutes no exception in this respect. Here lies the greatest problem in using international human rights’ frameworks to advocate/litigate for a meaningful right to health care in Greece or in any other austerity-bound states. The Troika austerity package is a holistic program of structural readjustments that seeks to transform the backbone of Greek economy. For example, the idea that Greek economy lacks competitiveness and this must be compensated by tax breaks for enterprises’ profits and high personal incomes resulted in a drastic decline of state revenue. It is of relevance here that Greek commercial ship-owners are of significant wealth and influence at an international level, holding for instance key positions in the International Maritime Organisation, but extensive tax breaks before and after the recession result in them contributing to the Greek economy less than irregular immigrants do with the fees paid for semi-permanent residency certificates. Nevertheless, budgetary constraints are perceived by international human rights documents and organs as the objective background against which various semi-technocratic decisions are being made. Further, the Committee has repeatedly abstained from qualifying extensive privatisations as prima facie violations of certain rights (the right to water, rights of persons with disabilities) and the right to health did not constitute an exception. Still, privatisations of such essential services have proved disastrous in most cases, drastically limiting the access to certain fundamental goods and generally increasing the costs of their provision (see here) leading to sharpened  social problems and unrest (see here). If combined with shrinking incomes and rising unemployment, it is difficult to see how privatisations are compatible with accessibility and quality of health care. Given these restraints in the way in which economic and social rights are formulated on an international scale, it would be fair to assert and other legal and political strategies and arguments might be better situated to address the issue. First, the recent agreement between Greece and the WHO for the latter to assist the health sector reforms might be able to address the most pressing issues of this health crisis. Secondly, the persistently high levels of (prolonged) unemployment mean that for the most vulnerable to have access to public health services, employment status should be to a certain extent disassociated from health insurance. Finally, tax law and policy might be a better field to fight this battle than individual human rights litigation.

These thoughts are not to suggest that human rights discourse and litigation are altogether irrelevant when it comes to the management of the Greek health crisis. The case of forced testing for infectious diseases is a domain when a robust human rights strategy is possible and could prove to be affective. During the summer of 2013 the Health Ministry re-introduced the controversial law that stipulates forced testing of immigrants, drug uses and prostitutes under police supervision. The provision is allegedly discriminatory on the basic of ethnicity and personal status and is also in conflict with the rights of personal liberty, privacy and autonomy along with the negative aspect of the right to health that prohibits forced treatment, experimentation and testing. Further, it reinforces stereotypes that it is these marginalised groups that are responsible for the rise of the HIV/AIDS in Greece, while it probably prevents them from voluntarily seeking tests and basic protection inducing a sense of fear and mistrust towards state officials. The Joint UN Programme on HIV/ AIDS has called for the repeal of the law, since it “could serve to justify actions that violate human rights.”  It is also notable that when the law was first introduced, it was accompanied by the publication on the Greek Police site of photos of the women found HIV-positive. Charges were pressed (and later dropped) against the sex workers in a process that the UN Programme in HIV/ AIDS considered “inappropriate application of criminal law”.

To conclude, the Greek health crisis is only now starting to reveal its multiple dimensions and severity. Human rights could undeniably be utilised to address the most extreme instances of the severe implications of this reform process, especially when abusive practices like those described above are introduced. Nevertheless, it could also help us reflect on the human rights discourse and its ability to effectively resolve issues of (re)distribution of goods and services in contexts of aggravated social inequality and exclusion. The alleged neutrality and inevitability of budgetary concerns is embedded in the formulation of socioeconomic rights in international legal documents and the organs responsible for their monitoring have been notoriously reluctant in meaningfully assessing the implications of privatisations upon their enjoyment. Thus, it would be worth asking ourselves whether the present situation is not necessarily a problem of social rights violations but rather the direct reflection of their short-comings.

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February 24 2014

Say it quietly, but this Defra report is about a right to food.

downloadWe are delighted to welcome Ben Warwick‘s guest post on the recent Defra report on the right to food. Ben is a Graduate Teaching Assistant and PhD candidate at Durham Law School. His research centres on resource constraints and the implementation of economic and social rights. He is a member of the Durham Human Rights Centre and the Economic and Social Rights Academic Network (UK and Ireland). 

Last week saw the release of a long anticipated review commissioned by the Department for Environment, Food and Rural Affairs (Defra) of ‘Food Aid in the UK’. The research is to be welcomed as a continuation of public, policy and scholarly attention in this area. It is clear that the authors, who are leading names in the area of food policy, have brought a great deal of experience to the process.

The authors (Lambie-Mumford, Crossley, Jensen, Verbeke and Dowler) highlight a number of gaps in the literature in this area. They additionally note the usefulness of international sources in informing UK practice, and the limitations that the disparate sources of food aid place upon a constructive empirical analysis of the situation. My research on UK food poverty from a rights perspective, encountered many of the same experiences. Often scholarship was centred on overly narrow questions or was unaware of other disciplines working in the area. Here I agree entirely with the authors’ call for a more even spread of research on food and poverty.

Notwithstanding the difficulties this report faced in drawing together the limited research on the UK’s food aid programmes, the failure to address the problem from the human rights angle seems puzzling. The clear value and relevance of human rights perspectives to the subject matter has been neglected. Instead, a ‘food security’ paradigm is prioritised and adhered to. This, no doubt, reflects to some extent the remit of the authors and the priorities of the commissioning body, Defra. But, whatever the reason(s), the exclusion of discussion of the right to food is at best disappointing and at worst a glaring omission.

Rights, but not rights

The perceived stigmas, and experiences of clients who are ‘embarrassed to accept help’ are clearly highlighted. However, sections of the report discussing the ‘negative emotional experiences’ that recipients of food aid can experience, ignore the ‘recognition of inherent dignity’ that underlies human rights.

In one particular statement that has been picked up by the media, the authors of the report reject the use of temporary, voluntary-sector provision, as having ‘limited effectiveness’ and that ‘broader’ (state-based) provision is required. In doing so the high-profile words of UN Special Rapporteur on the Right to Food are both mirrored and unacknowledged. Professor Olivier de Schutter, the Special Rapporteur, in a visit to the UK in February 2013 said foodbanks should not become a permanent feature of social security provision. It is striking that a series of comments that dominated media and public attention should be silenced.

Household food insecurity is ascribed the meaning ‘the lack of economic and physical access to sufficient, acceptable food for a healthy life’ by the report. To those versed in the work of the UN Committee on Economic, Social and Cultural Rights, the parallels will be obvious. In dealing with the right to food in 1999, that committee expounded, in nearly identical words, that, ‘the right to food is realised when every man, woman and child…has physical and economic access to adequate food or means for its procurement’. The Defra report makes no mention of this influential body. Indeed, there is no mention of the United Nations anywhere in the report.

A final observation is that despite being aware of the importance of nutritional qualities of food, and mentioning this in a number of places, the report’s authors do not engage with the UN Committee on Economic and Social Rights’ statements on food of ‘sufficient quantity and quality’.

The implications of exclusion

The absence of explicit human rights standards is problematic as it obscures discussion of a number of further concerns surrounding food aid. Principles of

non-discrimination and the cultural appropriateness of food, are left unaddressed. The significant rights-based experiences of engaging with issues around business and corporatisation are also neglected.

This (non-)approach to the right to food raises a myriad of questions for those working with human rights. The issues are more diverse that can be captured here but perhaps a sample is; would (even a single) mention of human rights have damaged the report?; are human rights arguments ‘toxic’ in British political arguments?; are academics in fields other than human rights unconvinced by, or uninformed of, rights?; why are comparisons with the US, Canada and Germany used in this report but international standards are not?

Perhaps human rights standards were perceived as ‘asking too much’ of the UK state in the current climate. The International Covenant on Economic, Social and Cultural Rights leaves little doubt as to the importance of being free from hunger as an element of the right to food. In the treaty itself, freedom from hunger is unusually described as a ‘fundamental’ right. The comments of the Committee note that even situations of ‘economic adjustment’ or ‘economic recession’ do not relieve states of the core duty to keep their populations free from hunger. Perhaps it is the biggest disappointment that this clear standard was excluded from the report.

February 19 2014

UN Commission on human rights in North Korea: A Silent Nation no more?

largestOn February 17th, the UN Commission of Inquiry on human rights in the Democratic People’s Republic of Korea (North Korea) published its Report and it is unequivocal in its account of human suffering. The awful litany of human rights abuse is of such a scale and level that its content and the accounts of the victims harrowing experiences is almost unreadable. Led by Michael Kirby, Sonja Biserko and Marzuki Darusman, the Report left no room for debate as to the extreme character of the North Korean regime and their characteristic exceptionalism that appears to underpin their rationale for treating their citizens in such a horrific fashion. Each of the interviewees gives a harrowing account of their individual stories. The victims of the regime, not frightened in silence, that made it out of North Korea detail the everyday humiliation, deprivation and torture that each, often alongside their family and friends, suffered to a degree which is difficult to entirely comprehend. The numerous abductions of individuals outside of North Korea further illustrates the regime’s disregard for human dignity and the complacency of China, amongst others, regarding both abductions and their record of returning refugees to North Korea. Whilst there always have been reports coming out of North Korea this is first time that a systematic approach has been taken to record and publish a comprehensive account of life within North Korea.

The Human Rights Council mandated Report followed it’s 2013 Special Rapporteur’s report on grave human rights violations in North Korea. The Commission’s  holds North Korea to account based upon the regime’s legally binding obligations as party to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. The Commission also looked at  the prohibition of refoulement under international refugee law and human rights law. Crimes against humanity were based upon customary international criminal law and the Rome Statute of the International Criminal Court The Commission based its findings on a ‘reasonable grounds’ standard of proof.

Without the co-operation of North Korea, the Report focused on specific rights, paying particular attention to gender-based violations of;

  • Violations of the right to food
  •  The full range of violations associated with prison camps
  •  Torture and inhuman treatment
  • Arbitrary arrest and detention
  • Discrimination, in particular in the systemic denial and violation of basic human rights and fundamental freedoms
  • Violations of the freedom of expression
  • Violations of the right to life
  • Violations of the freedom of movement
  • Enforced disappearances, including in the form of abductions of nationals of other States

The Report had three objectives; investigating and documenting human rights violations; collecting and documenting victim and perpetrator accounts and ensuring accountability. Whilst the degree to which they can ensure accountability is reliant upon a legal and political order beyond its control, enabling a portion of the victims to tell the stories of their own abuses and beginning the process of collecting and documenting the scale and character of the abuse is probably its strongest and most important achievement. According to the Report;

More than 80 witnesses and experts testified publicly (240 confidential interviews undertaken and 80 written submissions received) and provided information of great specificity, detail and relevance, in ways that often required a significant degree of courage.Systematic, widespread and gross human rights violations have been and are being committed by the Democratic People’s Republic of Korea, its institutions and officials. In many instances, the violations of human rights found by the commission constitute crimes against humanity. These are not mere excesses of the State; they are essential components of a political system that has moved far from the ideals on which it claims to be founded. The gravity, scale and nature of these violations reveal a State that does not have any parallel in the contemporary world… a State that does not content itself with ensuring the authoritarian rule of a small group of people, but seeks to dominate every aspect of its citizens’ lives and terrorizes them from within.

The scale and character of the everyday human rights abuses makes the recommendations of the Report unequivocal. While the calls for internal action including acknowledging the scale of the human rights abuse is unlikely to result in any immediate change the other recommendations may bare some fruit. The Commission, for example calls upon China, and other states, to comply with the principle of non-refoulement and international refugee law with regard to North Korean escapees. For many years China has been North Korea’s main supporter but the withholding of an invitation to Kim Jong-un to visit Beijing may lead to a tougher position albeit it will probably block any action by the UN Security Council as recommended by the Report.

The Report recommends that North Korea be referred to the International Criminal Court by the Security Council. (A process which enables the ICC to have jurisdiction even if the state is not part to the Rome Statute e.g. Libya). The fact that the Report specifies the exact bodies, including the Supreme Leader, responsible for violations which include crimes against humanity, would ultimately aid in any prosecutions. Albeit the possibility of this in the immediate future is very low. It also recommends targeted sanctions though due to the dire situation of individual North Koreans’ none which would have any impact on the whole population.

It is easy to be depressed by the Report and the limited character of the immediate outcome. Jonathan Freedland statement that it’s a good time to be a dictator like Kim Jong-un emerges from experience of collective outcry and then inertia. Certainly the fact that both Kim Jong-un’s father and grandfather  died without ever having showing any cognisance, even before we get to being held account for the horrors they inflicted on their people, does not give much hope.  Indeed, Freedland in pointing to Syria or indeed if we look beyond to South Sudan, the Central African Republic, the aftermath of the civil war in Sri Lanka or the lives of individuals in Gaza, a terrible picture of accountability emerges. This is particularly disappointing when action is blocked by one of the Permanent Members of the Security Council. Nonetheless, while Freedland  has an important point, it is not as good a time to be a dictator as it was during the Cold War. The protection of dictators now only goes so far, individuals have been held to account in states and circumstances that would have seemed unimaginable only 20 years ago. Philippe Sands argues that this could be a slow burner, that eventually it is possible that the regime will be held to account but in the mean time I want to suggest that actually the most important aspect of the Report are the stories that the individuals told.

The process of producing this detailed Report gave a space to the hundreds of victims to not only tell their own stories but also those of the individuals who will never be able to testify to their experiences. The people of North Korea have largely been silent for the past fifty years. The character of the regime has meant that almost uniquely in the World there are 24 million voices that are never heard. It is impossible for an event such as the Arab Uprisings to occur. Mass communication, other than the regime’s own does not exist, North Koreans do not travel, their authors do not publish books beyond the state, their intellectuals do not become involved in global debates, young North Koreans have absolutely no access to social media and their limited education means indoctrination to an extent that even understanding how to use such methods does no exist. The picture above of North Korea at night shows a state where 24 million people sit in the dark each night. While some media has been smuggled in from China, children of the elite have been educated elsewhere and escapes have been made, the vast majority of North Koreans remain silent.

Very often, we rush to international criminal law to hold the perpetrators to account without giving space to the victims that get lost in the criminal process. This Report put the victims at the centre of the Report, it has produced a repository of these accounts that is freely accessible, it has allowed people to tell their own stories which may, for some, be more important than seeing Kim Jong-un in the dock at the Hague. This is an immediate success and one which the law is not typically good at achieving. These stories now are not part of some vague statistics of death and inhumanity, instead they are individual records of horrendous atrocity that demand to be heard over the pomposity of the perpetrators and their protectors.

The Constitutional Convention: Briefing Papers on Economic, Social & Cultural Rights

Constitutional ConventionThis is a co-authored post. Aoife Nolan is a Professor of International Human Rights Law in the University of Nottingham. Liam Thornton is a lecturer in law in UCD School of Law.

On Saturday and Sunday, 22nd-23rd February, the Constitutional Convention will discuss the issues of economic, social and cultural rights. Professor Aoife Nolan and I will be speaking to the members of the Constitutional Convention on different aspects of Economic, Social and Cultural rights. Earlier this week, our briefing papers were distributed to members of the Constitutional Convention. These papers can be accessed here:

Dr Liam Thornton, “What are Economic, Social and Cultural Rights?

Professor Aoife Nolan, “Models of Constitutional Economic, Social and Cultural Rights

January 30 2014

Ireland and the European Committee on Social Rights

ESCThere has been much focus on the role of the European Court of Human Rights over the last number of days (see, here and here). A less well known body, the European Committee on Social Rights, is responsible for assessing Ireland’s compliance with the European Social Charter (Revised). The European Social Charter protects a number of social and economic rights, such as employment rights, right to health care, social security, an adequate standard of living etc. Ireland has freely accepted to abide by a large number of obligations (but not all) under the European Social Charter. As my summary of the Committee’s conclusions below show, this report is somewhat of a mixed bag. It is important to note that the  Committee on Social Rights examined Ireland’s compliance with the European Social Charter from 2008 to 2011, so a number of important issues that arose since 2011 are not considered, including the attacks on youth right to full rate unemployment benefit/assistance; maternity benefit cuts; the cumulative impact of successive regressive budgets on those who are already poor and marginalised. In addition, it was somewhat disappointing that the Committee did not mention or consider the social and economic rights of asylum seekers (as it has done in collective complaints).

The European Committee on Social Rights has released its Conclusions on Ireland for 2013 on a number of different rights protected by the European Social Charter, including:

  • Article 3: Right to safe and healthy work conditions;
  • Article 11: Right to protection of health;
  • Article 12: Right to social security (this generally refers to contributory social welfare payments);
  • Article 13: Right to medical assistance and social assistance (social assistance generally refers to non-contributory social welfare payments)
  • Article 14: Right to benefit from social welfare services;
  • Article 23:Right of elderly persons to social protection;
  • Article 30: Right to be protected against poverty and social exclusion.

The European Committee on Social Rights assessed Ireland’s report (here and here) as regards whether the Irish social, welfare and legal system respected the above listed rights.  A significant issue that arose for the Committee was Ireland simply refusing to provide any information in its reports on  how it was meeting specified obligations. Ireland did not provide the Committee with any information on a number of issues, including: on a right to safe and healthy work conditions; aspects of the right to protection of health; development of the social security system

The European Committee on Social Rights found that Ireland was in conformity with its obligations. as regards:

  • The maintenance of a social security system in line with the European Code of Social Security;
  • The level of social assistance for welfare payments for job-seekers, people with disabilities, widows/ers, one parent families is adequate, conforming, in part, to obligations on right to medical and social assistance;
  • The Committee also found that Ireland was meeting its obligations as regards the right to be protected against poverty and social exclusion.

Committee finding Ireland was not in conformity with its obligations under European Social Charter (Revised) in a number of ways, in particular:

On issues relating to the right of the elderly to social protection, the Committee on Social Rights requested further information on the legal framework in place relating to assisted decision making, minimum income guarantees for all elderly people; prevention of elder abuse; institutional care of the elderly. However, Ireland’s report did not address any of these significant issues.

Overall, the report is not as damning as it potentially could have been. In 2015, Ireland’s record on social, economic and cultural rights will be examined before the UN Committee on Economic, Social and Cultural Rights (see here for a primer). This will provide an updated rights assessment as to whether Ireland is complying with its international obligations to respect, protect, vindicate and, in necessary, fulfill, the social, economic and cultural rights of all those in Ireland.

January 23 2014

Hong Kong: A Tale of Two Cities

justice

The recently tragic case of Erwiana Sulistyaningsih in Hong Kong has again highlighted the plight of foreign domestic helpers (FDH) in the city. 23 year old Sulistyaningsih is an Indonesian FDH who has alleged that she has been subject to serious acts of cruelty amounting to torture by her employer over an eight month period. Recent photos of Ms. Sulistyaningsih shows her underweight with broken teeth, bruised and with feet black in color with open sores. Quite telling of the Hong Kong attitude to FDH is that this woman, very obviously seriously abused and beaten, was able to go through customs at Hong Kong airport and return home without being asked any questions as to her physical state. Since this story has come to light two more FDH have come forward with of similar abuse at the hands of the very same employer and there are already reports that employment agency staff took her back to the employer after she previously tried to escape, saying that she cannot leave yet without completing her payment to the agency. To anyone working with migrant workers in Hong Kong this will come as no surprise as they are often the forgotten population of this hyper wealthy state.  Indonesian Kartika Puspitasari made headlines last year when her two-year-long torture in the hands of a HK couple was made public and a 2012 Mission for Migrant Workers survey found that 18% of migrant domestic workers in the city had been physically abused.

There are more than 300,000 migrant domestic workers in Hong Kong, with about half from Indonesia, many others from the Philippians and nearly all are women. A recent Amnesty International reportExploited for Profit, Failed by Governments” emphasized the abuse that many FDH are subjected to in the affluent city. Lured with the promise of well-paid jobs the reality could not be more different for many of the women who arrive here. The Amnesty report found that systemic failures by both the Hong Kong and Indonesian governments to protect FDH from exploitation. The findings of the report are based on in-depth interviews with 97 Indonesian migrant domestic workers and supported by a survey of nearly 1,000 women by the Indonesian Migrant Workers Union.

The first discriminatory aspect of Hong Kong’s law is that there is a mandatory live-in rule for FDH. Given the space restrictions in housing in Hong Kong a survey by the Mission for Migrant Workers found that 30% of helpers are told to sleep in kitchens, bathrooms, hallways and closets. Under Hong Kong Law, employment agencies are permitted to charge up to 10% of the FDH’s minimum monthly pay and there are numerous government websites with FAQs on these issues. In addition in their home countries, there are also laws regulating recruitment and training fees. The Amnesty report again found that in Indonesia, FDH’s are compelled to go through government-licensed recruitment agencies including for pre-departure training. These agencies, and the brokers that act for them, routinely deceive women about salaries and fees, confiscate identity documents and other property as collateral, and charge fees in excess of those permitted by law. Full fees are imposed from the outset of training, trapping the women with crippling debt should they withdraw. Their Filipina counterparts do not have to find employment through an agency and are as such not as subject to the unscrupulous middlemen who levy exorbitant charges and insist that FDH stay with abusive employers until they have worked off their debts.
Some of the Hong Kong’s most recent actions put women at even greater risk of abuse. Underpayment is a widespread problem. Yet, in the two-year period up to May 2012, just 342 cases of underpayment were lodged out of a total population of more than 300,000 FDH. Hong Kong’s laws stipulate that migrant domestic workers must find new employment and get an approved work visa within 14 days of the termination of their contract, or they must leave Hong Kong. This pressures workers to stay in an abusive situation because they know that if they leave their job, they are unlikely to find new employment in two weeks and therefore must leave the country. For many this would make it impossible to repay the recruitment fees or support their families. Given that an application for a work visa takes approximately six weeks any FDH who leaves their job will be effectively forced to leave Hong Kong. Jason Y Ng of the SCMP states that this particular rule is designed to achieve two objectives:

First, the government wishes to deter employer-shopping and job-hopping. Even though it is perfectly normal for everyone else in Hong Kong to look for a better job and jump ship every now and then, it is not so for a migrant worker. Maids who quit and work for another home are looked upon as greedy and irresponsible. The second objective is as unspoken as it is ignoble: to put arbitrary restrictions on the domestic helper’s stay to distinguish them from other expatriates.

Vallejos “Right of Abode” Case

The  seconddistinction as applied has had particularly harsh consequences for domestic helpers. A recent case before the Hong Kong Court of Final Appeal (CFA) dismissed the appeal of the appellants, Vallejos Evangeline Banao and Domingo Daniel, who were seeking permanent residency status pursuant to Article 24(2)(4) of the Basic Law. The appeal came before the CFA on 26 February 2013. Ms Vallejos had lived and worked in Hong Kong since 1986 and Mr Domingo since the early eighties.  In 2008, Vallejos applied for a permanent identity card but her application was rejected by the Commissioner of Registration upon which this case was taken. The CFA case was an appeal from a Court of First instance decision which had held that  FDHs could be considered to be in ordinarily residence in Hong Kong  and were thus eligible to acquire the right to permanent residence under  Art  24(2)(4)2  of the Basic Law. Article 24(2)(4) of the Basic Law provides that persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than 7 years and have taken Hong Kong as their place of permanent residence shall be permanent residents of Hong Kong. If I was to have stayed working in Hong Kong for 7 years I could have applied to be a permanent resident in the normal manner.

However, section 2(4)(vi) of the Immigration Ordinance states that a person employed as a FDH who is from outside Hong Kong is not to be treated as “ordinarily resident” in Hong Kong and so cannot become a Hong Kong permanent resident. The CFA held that the immigration status of persons must be taken into account in deciding whether they satisfy the 7-year ordinary residence requirement. In particular they noted that:

The nature of FDHs’ residence in Hong Kong is highly restrictive. Permission for a FDH to enter Hong Kong is tied to employment solely as a domestic helper with a specific employer with whom the FDH must reside under a specified contract. The FDH is obliged to return to the country of origin at the end of the contract and is told from the outset that admission is not for the purposes of settlement and that dependents cannot be brought to reside in Hong Kong. The quality of their residence is therefore far-removed from what would traditionally be recognised as “ordinary residence” and the Court thus held that FDHs do not, as a class, come within the meaning of “ordinarily residence” as used in the Article.  As the meaning of the Article interpreted purposively and in context was clear, there was no basis for referring to any extrinsic materials in aid of its interpretation

Michael Fordham, representing Vallejos and Domingo, focused on the constitutionality or lack thereof in the use of a blanket exclusion to prevent all people belonging to certain classes of residents from falling within the definition of ordinarily resident and thus eventually becoming entitled to apply for right of abode. Lord Pannick, for the state, stated that foreign domestic helpers “don’t form part of the permanent population” and thus it was legitimate for lawmakers to create a legislative definition of “ordinarily resident” which excluded them. The CFA issued its judgment that the restrictions on FDH residence and employment in Hong Kong meant that they did not fall within the definition of ordinarily resident for immigration purpose and  a person like Ms Vallejos, diligently working and contributing to Hong Kong for over 27 years could be subjected to removal 14 days after her employment contract was terminated.

In the aftermath its is also interesting to see the barrage of racist and xenophobic comments by Hong Kong legislators in respect of the case. In particular those made by Starry Lee, Regina Ip, Chan Kam-lam and Paul Tse who directly attacked one of the barristers representing Vallejos and Domingo. These are the very same legislators who seek to deny any form of rights to those seeking asylum in Hong Kong and contribute to a culture of distrust and suspicion of the most vulnerable in society.

Migrant workers send home billions every year to their home countries in remittances, bolstering the economies of some of the world’s most poverty stricken jurisdictions. They also significantly contribute to their adopted countries. Yet they are being failed by their own governments and by the governments of the countries they work in. I have been proud to see the growth over the past number of years of organizations run by migrant workers fighting for their rights and those of their compatriots and I hope that we will see “Justice for Erwiana” and for the other migrant workers who are abused to suit the needs of the wealthy.

What Hong Kong as a society is currently saying with it’s lack of protection is that those working as domestic helpers do not matter as human beings as much as those working in international banking, business and law firms do. If not directly complicit in the exploitation, abuse and discrimination these women face on a daily basis, they are certainly enjoying the benefits of this modern day form of slavery.  As Abraham Lincoln once said “Those who deny freedom to others deserve it not for themselves.”

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January 18 2014

Law, Dignity & Socio-Economic Rights: The Case of Asylum Seekers in Europe

EuropeBelow are my speaking notes for the  European Database on Asylum Law (EDAL) conference, Reflections on the Current Application of the EU Asylum Acquis. My full paper can be accessed here: “Law, Dignity & Socio-Economic Rights: The Case of Asylum Seekers in Europe“. My very brief slides  for this presentation are available here:  Law Dignity & SER Asylum Seekers.

The treatment of aliens…has become a defining challenge to an important aspect of the moral identity of the emerging European polity and the process of European integration.[1]

Introduction 

First of all, I would like to express my gratitude to Aoife and all at the European Database of Asylum Law for this invite, and congratulate EDAL and the Irish Refugee Council for such a stimulating and challenging conference over the last two days. All I can do over the next 15 or so minutes is present to you a skeleton of my arguments, as regards the protection of the socio-economic rights of asylum seekers.  The full  paper is available here:  Law, Dignity and Socio-Economic Rights: The Case of Asylum Seekers in Europe.

Definitions 

My use of the terms ‘asylum seeker’ and socio-economic rights are deliberate. The phrase asylum seeker, properly communicates the process of fleeing for protection, but awaiting determination of the protection application within the receiving state. This includes application for recognition of refugee, subsidiary protection or other human rights protection status. The phrase socio-economic rights includes those human rights protected under international and European human rights law, that recognises the right to social security; right to work; right to an adequate standard of living; right to education; right to shelter etc. I shy away from the language of ‘reception conditions’, I feel that language seeks to separate ‘us’ and ‘them’ and seeks to make it seem wholly natural and automatic that fundamental social rights be differentiated on the basis of legal status.

The Core Argument 

Now that we have definitions out of the way, the key argument of my paper is this: In spite of the plurality of legal regimes that protect, to some extent the socio-economic rights of asylum seekers, the end result of this legal plurality, has been to deny asylum seekers access to mainstream social supports that are considered fundamental to ensuring all those within a state can enjoy a minimum, if basic, standard of living.

WE might disagree as to whether citizenship or nationality or residence should form a coherent basis for distinguishing socio-economic rights between asylum seekers or citizens or other residents. However, international and European human rights law has not yet been so definitive, despite the exhaustive plurality of legal measures. In fact, as I will seek to now trace: the status of asylum seeker still seems to permit fundamental differentiation between asylum seekers and say citizens or residents. So, asylum seekers DO NOT under international and European human rights law enjoy all the rights that citizens or permitted residents in a State enjoy. However, given the cosmopolitan promise of human rights, contestations exist in this area, and the issue is not overly clear cut.

Legal Plurality & the Socio-Economic Rights of Asylum Seekers 

International human rights law: While human rights seek to protect the weak, marginalised and vulnerable, there is often a presupposition amongst human rights lawyers, academics and activists that asylum seekers automatically have the same socio-economic rights as citizens and other residents. Indeed, a sole focus on the concluding observations and general comments of the Committee on the Rights of the Child, suggests that distinctions in treatment in the fields of health, social welfare and education, between citizen children and asylum seeking children are simply not permitted. However, the Committee on Economic, Social and Cultural Rights, have stated that differences of treatment in the enjoyment of socio-economic rights may be justified where these differences are reasonable, objective and proportionate. There exists, in the Committee’s examination of various States parties reports (as examples, see here, here and here) an inherent confusion as to whether differentiation is permitted, not permitted, or permitted under certain circumstances, as regards the socio-economic rights of asylum seekers. This confusion is also present due to the very different approaches of the UN Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the Committee on the Elimination of Discrimination Against Women.

Council of Europe human rights law: Moving to the European level, and the approach of the Council of Europe, the European Convention on Human Rights, while somewhat protecting socio-economic rights, will not have an overly profound impact on the socio-economic rights of asylum seekers in Europe. Yes, the European Court of Human Rights has established that where laws are in place protection the socio-economic rights of asylum seekers, these laws must be enforced by the State. However, this (so far) is limited to the basic socio-economic rights established in the EU’s Reception Condition’s Directive. Unlike in the UK’s House of Lords (now Supreme Court) in the Limbuela case, the European Court of Human Rights has not found that destitution in and of itself will result in a finding that hunger, cold or lack of shelter will be inhuman or degrading. This is of particular relevance to Ireland and Denmark who are not bound by the EU’s Reception Condition’s Directive, as well as to states parties to the European Convention on Human Rights, who are not members of the European Union.

European Union human rights law: The Reception Conditions Directive and the successor Recast Reception Directive are unique, in that a very basic standard of living has been set down from those considered outside the European polity (asylum seekers). Some of the obligations under the Reception Directives include:

  • Recognition of a right to a dignified standard of living;
  • Highly circumscribed freedom of movement rights;
  • The right to be provided with some form of shelter,
  • Material reception conditions,
  • A circumscribed right to education for children under 18;
  • Protection of particularly vulnerable asylum seekers.
  • A limited right to work.

As is evidenced from the progression of the proposals from 2008 to 2011, concerns about abuse of the asylum and protection system led to significant downgrading of core elements of socio-economic rights protection within the Recast reception Directive. In this regard, the European Parliament and Council of the European Union, were central in arguing for a less rights orientated and more punitive approach to material reception conditions for asylum seekers.

The Socio-Economic Rights of Asylum Seekers: From Legal Plurality to Clarity to Dignity?

International and European human rights law have attempted (albeit, in my view unsuccessfully) to protect the socio-economic rights of asylum seekers in Europe. The key method and efforts for seeking protection of the dignity, inherent worth and socio-economic rights for asylum seekers should be focused on domestic rights regime, with international rights mechanisms supplementing socio-economic rights protection for asylum seekers. The large degree of discretion that exists in relation to the socio-economic rights of asylum seekers suggests human rights law and standards of dignity and respect for the individual, which the Union seeks to embrace, is lacking when one speaks of the rights of the outsider. As Professor Colin Harvey noted in 2004:

[The]…humanitarian institution of asylum is now discussed as a threat and/or a security problem.

It is for this reason, that international and European human rights law and norms have failed to act as an effective bulwark against the differentiation and lowering of the socio-economic rights of asylum seekers.



[1] Weiler, J.H.H. “Thou shalt not oppress a stranger: On the judicial protection of human rights of non-EC nationals-A critique” (1992) 3 European Journal of International Law 65 at p.65.

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January 15 2014

O’Connell on Rights and Resources: Applying an International Human Rights Framework to State Budget Allocations

Applying an Int Tights FrameworkThis is a guest post by Rory O’Connell, Professor of Human Rights and Constitutional Law at the Transitional Justice Institute / Law School, University of Ulster. Rory can be reached at r.oconnell@ulster.ac.uk; follow on twitter @rjjoconnell

How to manage resources so as to protect and promote rights?  How to protect basic human rights given the resource limitations that states face?

These are questions that human rights activists and academics, but also governments and policymakers. They are questions which economic and social rights activists have often been faced with. While all rights require resources, including financial resources, some have thought that this is especially true in relation to economic and social rights, rights like the right to work, health, social security, etc. Funding for social security and welfare, education, health, employment are often major elements of budgets. This reflects the fundamental importance of these interests; but it has several implications. First, it means that the effective protection of these rights requires detailed consideration of budgetary processes and decisions; this requires human rights experts to learn a new set of skills and languages; and conversely requires the economists and policymakers who decide budgets to learn about human rights. The fundamental importance of budgets to the realisation of these rights also has the worrying implication these are areas of public policy often targeted for ‘cutbacks’ in times of economic crisis and recession.

These concerns are at the heart of my new book Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources co-authored with Aoife Nolan (Nottingham), Colin Harvey (QUB), Mira Dutschke (Legal Researcher)  and Eoin Rooney (NICVA) published as part of the Routledge Research in Human Rights Law series. The book begins the process of linking the work of economists with that of human rights experts. In this it is a foray into the field of human rights based budget analysis, focusing explicitly on economic and social rights.

The book provides a detailed review of selected examples of guidance documents and cases studies where others – typically by not exclusively civil society organizations in the global south – have applied human rights principles to budget analysis.  The book discusses budget analysis tools used by these organizations and identifies the need for a detailed consideration of how the international human rights obligations map onto budgetary questions.

Having identified this need, we discuss in detail over two chapters the obligations in the International Covenant on Economic Social and Cultural Rights 1966 (ICESCR) and the implications that these obligations have for budgetary processes and decisions. These obligations include the concepts of progressive realization, use of maximum available resources, minimum core obligations, the tripartite obligations (to respect, protect and fulfil), non-discrimination and obligations of process.

Having considered the practical work and normative framework developed at a global level, we consider how these principles can be applied in practice in a local context. The local setting chosen is Northern Ireland’s devolved system, and in particular we focus on the right to mental health and the right to housing. The chapter on mental health discusses some of the complexities of geographical equity in the enjoyment of human rights within a devolved system, and highlights problems relating to adequate information and participation. The chapter on housing looks narrowly at the system of funding for social housing; this chapter critiques the assumption that funding for social housing can be provided ‘cost-free’ if they come from ‘private’ sources.

The work as whole makes links between law and economics, and between global norms and local practices. It seeks to make human rights law comprehensible to budget experts and budgetary questions understandable to human rights experts. Crucially it address its arguments not so much to lawyers and judges (though they too will be interested) but to civil society organizations, public servants and policy-makers, indeed politicians.  The realisation of basic rights like health, education, work, social security, requires careful principled consideration of resources by policymakers, politicians, civil society, citizens. In this book we show how international human rights law provides a foundation for such a principled consideration.

Details of the book are here: http://www.routledge.com/books/details/9780415529785/. Use code LRK69 for a discount.

December 20 2013

Economic, Social & Cultural Rights & The Constitutional Convention

Amnesty ConstitHuman Rights in Ireland is delighted to welcome this guest post from Prof Aoife Nolan. Aoife’s latest co-edited collection, Human Rights and Public Finance, was published by Hart in October 2013.

On Tuesday, the Constitutional Convention announced that their final two meetings in February 2014 would focus on economic, social and cultural (ESC) rights and Dáil reform. This decision followed a regional tour and consideration of almost 1000 public submissions received as part of the Convention’s decision-making process.

For economic and social rights advocates this is simultaneously a triumph and a call to arms. When the Convention was being established in 2012, the Government rejected both opposition proposals to include ESR rights on the original agenda, as well as amendments proposed to add them to the agenda when the resolution was being passed through the Oireachtas. However, a sustained campaign led by civil society, particularly Amnesty Ireland, has resulted in a clear, consistent message being sent to the Convention about the need for economic, social and cultural rights to be addressed in its work.

This is a highly significant development given the limited protection accorded to ESC rights by the Constitution – and by the judicial interpretation and application thereof. Historically, despite the fact that the Constitution contains a number of  ESC rights (both express and unenumerated), concerns about the implications of adjudication of socio-economic rights for a narrow conception of separation of powers and the involvement of the courts in what have been deemed issues of ‘distributive justice’ (see O’Reilly v Limerick Corporation (1989) discussed here) has resulted in a general judicial reluctance to recognise and give proper effect to such rights.(See especially, the Supreme Court decisions in TD v Minister for Education (2001) and Sinnott v Minister for Education (2001)).

In terms of other potential constitutional avenues for ensuring ESC rights protection, there are several civil and political rights-related provisions that could be used as a basis for indirect protection of ESC rights and that have played such a role in other jurisdictions. These include the rights to life and property. That has not been the case in Ireland, however. Furthermore, even though some legislative civil and political rights protections incorporated into domestic law by means of the European Convention on Human Rights Act 2003 have resulted in protection being afforded to elements of the right to adequate housing, for instance, they have had a limited overall impact on the protection of the full scope of obligations imposed by ESC rights. Indeed, this is consistent with the approach of the European Court of Human Rights which has historically proved reluctant to engage extensively with economic and social rights-related issues in its work. (For more see here and here). More broadly, there has been a historic reluctance on the part of Government to address key ESC rights-related concerns in expressly ‘rights-based’ legislation, further reducing the potential for non-constitutional rights-based challenges to ESCR rights-related issues. A particularly strong example of this is the experience in relation to the Disability Act 2005 (discussed here).

There is thus a huge gap in terms of legal protection of ESC rights in Ireland. On that basis, given the centrality of the goods and services contemplated by such rights, it might be assumed that Convention members will be falling over themselves in order to recommend that ESC rights should be constitutionally entrenched.

However, there is no room for complacency amongst those who wish to see greater protection afforded to ESC rights by the Constitution. The Convention’s role is to consider and make recommendations on certain topics set by the Government as possible future amendments. It will undoubtedly be an uphill battle to ensure that such recommendations that are supported by Convention advance ESC rights protection under the Irish Constitution. And an even tougher task to ensure that Government will take action on any such recommendations. Government reluctance to consider further constitutional entrenchment of ESC rights was clearly demonstrated by the consistent reluctance of Government-driven proposals in relation to the content of the constitutional amendment on the child to extend recognition to children’s economic and social rights. There is also the elephant in the room of the 1996 report of the Constitution Review Group (CRG) rejecting the explicit inclusion of ESC rights in the Irish Constitution, which will undoubtedly be trotted out by those opposed to expanding ESC rights protection under Bunreacht na hÉireann. The CRG concluded that, where anyone falls below a minimum level of subsistence, the Constitution appears to offer ultimate protection through judicial vindication of fundamental personal rights such as the right to life and the right to bodily integrity. However, even if this was how those rights had been applied in practice by the Irish courts (which it isn’t), ESC rights involve obligations that go beyond a ‘minimum level of subsistence’ and it will be vital for advocates to ensure that any future constitutional schema recognises that.

Furthermore, much has happened since 1996.

Internationally, we have seen an explosion in ESC rights standards, enforcement mechanisms, advocacy and scholarly literature. (For overviews, see here and here. For examples of ESC rights in practice, see here). This means that, in its consideration, the Convention will benefit from a range of support in the form of comparative judicial models and debates in relation to ESC rights – a body of constitutional and judicial practice exists now that did not then. While the South African model is best known, those of jurisdictions and bodies ‘closer to home’, for instance, various European states and Constitutional Courts (some of which are discussed here) or the European Committee of Social Rights may ultimately prove more instructive.  The existence of these models will enable proper consideration of which of the many approaches to the constitutionalisation of ESC rights would be most appropriate to the Irish context.

At the domestic level, the most important development has been the economic crisis and Government responses thereto, which have had a savage impact on the ESC rights of some of the most disadvantaged in society, including people with disabilities, Travellers, children, older persons and women. This has served to galvanise ESC rights-centred advocacy – both in Ireland and abroad.

There is thus wind in the sails of those who wish to see ESC rights accorded greater protection under the Irish Constitution – wind that has been greatly strengthened by the crisis and its impacts on ESC rights enjoyment. There are examples of good practice and pitfalls in terms of both standards and enforcement mechanisms for such rights. There is home-grown and international expertise and experience that can be relied on in formulating and assessing recommendations – whether by advocates, the Convention or, ultimately, the state.

Those in favour of extending the constitutionalisation of ESC rights in Ireland have arguably never had it so good.  This opportunity must not be allowed to slip away.

December 10 2013

International Human Rights Day 2013: Placing the Spotlight on Direct Provision

DP End Institutionalised LivingToday is International Human Rights Day 2013. This year, the theme is one of reflection on twenty years of the Vienna Declaration and Programme of Action on Human Rights. The Vienna Declaration emphasised the indivisibility and interconnectedness of all human rights protections. The Office of the UN High Commissioner for Human Rights is emphasising the human rights achievements over the last two decades. Indeed, the achievements of Ireland in the protection of human rights over the last twenty years should be commended in a host of areas: free speech, LGBT rights, placing refugee status determination on a statutory footing; further attempts to protect socio-economic rights; establishing a national human rights institution and providing some domestic effect to the European Convention on Human Rights (amongst a select few achievements).  This is not to say that Ireland is fully complying with its international or European human rights obligations in all these areas, but things have significantly progressed in the last two decades.  One issue that has emerged in the last 20 years however, has been how Ireland treats those who claim asylum in this State.

The modalities of direct provision were communicated to various government departments on international human rights day in December 1999. Fourteen years later, the Irish Refugee Council is today highlighting alternatives to the system of direct provision. The urgency for a different approach and a new way forward is further evidenced by yesterday’s reports from Dr Joan Giller in West Cork of the tremendous damage that the system of direct provision is causing.

In a new report the Irish Refugee Council  (report available on their website shortly) is seeking to add to the debate on alternatives to the direct provision system. The Irish Refugee Council make it very clear, that not all the proposals contained are definitive nor is the report exhaustive, but the purpose of this very timely report is to start the debate on alternatives to the system of direct provision. While recognising the need for a transition to new arrangements, the Irish Refugee Council’s proposals include:

  • A single protection procedure be introduced as soon as possible in 2014 in order that the aim of processing the majority of new asylum claims within six months can be achieved. Asylum seekers be granted early legal advice when dealing with their asylum claim.
  • The weekly allowance currently paid to asylum seekers be increased in line with the increases in social welfare since 2001.
  • Restoration of universal child benefit for the children of asylum seekers.
  • Stays in reception centres be limited to 6 months, and such accommodation respects family life and the best interests of the child. There should be an independent complaints and inspection mechanisms.
  • A system be introduced to identify particularly vulnerable asylum seekers;
  • After six months in a reception centre, an asylum seeker be granted the right to work and the right to access the private rental market. Access to rent supplement/supplementary welfare allowance to be made on basis of satisfying means test already established.

It remains to be seen, whether this time next year, there will be progress towards dismantling the current direct provision system.

 

November 13 2013

Training: Defending Human Rights of Roma and Travellers

                                                      Untitled1                                     

The Support Team of the Special Representative of the Secretary General for Roma issues, the Irish Traveller Movement Independent Law Centre and the Advice on Individual Rights in Europe Centre are organizing a training session on 5th December 2013 for barristers and solicitors for up to 20 persons who have acted or who wish to act for Roma and Travellers before national Courts. This training session aims to strengthen and supplement the knowledge and the legal capacity of legal practitioners in the field of Roma and Travellers rights. The training session will include:

  • Relevant standards set by the Council of Europe (European Convention on Human Rights, Resolutions, Recommendations, Opinions and Reports of the bodies of the Organisation); relevant European Union law.
  • Identification of the issues Roma and Travellers face with a focus on housing and equality law;
  • Practical cases and a simple moot court

The training session will be conducted by Council of Europe and Irish legal experts including  Ms Nuala Mole of the AIRE Centre, Eilis Barry BL and David Joyce BL.

Certificates of Attendance will be provided in order to claim Law Society & Bar Council CPD accreditation.

The Council of Europe will cover expenses related to participation to the training session (transport, accommodation, dinner (for those coming from outside Dublin), lunch and teas/coffees).  A cover letter, as well as a CV, written in English must reach leaholearyitm@gmail.com no later than 12pm Monday, 18th November 2013.  If selected, participants will be expected to attend the full day.

November 08 2013

Winterstein v France: Fighting for Travellers’ Rights under the ECHR

ECtHRThe European Court of Human Rights recently found France in violation of Article 8 (the right to home, family and private life), by threatening to evict through court order a group of 95 Travellers from their long established caravan sites in the municipality of Herblay. This decision is very significant for those engaged in litigation or advocacy on Traveller/Roma housing in Europe.

Disclaimer: The judgment is currently only available in French here. As French is my fourth language, I have avoided direct quotation, and sought to crosscheck with available secondary sources. In the event of any mistranslations I will amend this post, and will update it upon the issuing of the English version. Please note that in referring to the minority involved in the case as Travellers I am adopting the terminology of the Court. The distinct identity and traditions of French gens du voyage is excellently described here.

Facts of the Case

Travellers (or gens du voyage in French) are about ten per cent of the relevant municipal population, with between 400 and 500 caravans present, of which 80% are in breach of planning laws due to a history of non-provision. In an act of constructive assimilation reminiscent of some past Irish councils, the local government, in the period 2003-2005, prohibited travelers from parking their mobile homes anywhere in the Municipality. Furthermore, this was followed up by the council seeking an eviction order for a large unauthorized encampment in a wooded area. Nearly one hundred Travellers had camped there, with the de facto toleration of authorities, for between five and thirty years, with some of them having been born there. A land use development plan had only recently designated the plots of land in question as areas ‘qualifying for protection on account of its natural beauty and character’. Upon hearing the municipal government’s application for an eviction order, the urgent applications judge initially refused it, citing the long established residence upon the land and the toleration of situation by authorities. Above all, the judge linked the eviction application with the failure of the local authorities to deliver a site for caravan dwelling travellers. This initial judgment was overturned by the higher courts however, with each person ordered to vacate the land. Four families opted to accept an offer of social housing and were housed after four years. The remaining families continued to live under threat of eviction at any time, hoping that some family caravan sites would be created or formalised. After a wait of six years, the council recently abandoned its only listed project for families, in order to hurriedly create a short stay site for nomadic travelers which the French High Authority against Discrimination and for Equality found they already were legally required to create. The judgment of the Chamber of the European Court on Human Rights on the eviction order finally came down on the 17th of October this year.

The Court Ruling

The Meaning and Importance of a Home.

The court the only criterion for a protected ‘home’ under Article 8 is a site, caravan or house with which the person has ‘sufficiently close and continuing links’. The Court stressed that life in a caravan is an integral part of many Travellers’ identity, and even if they are no longer nomadic, represents a core way for them to retain their cultural heritage and identity.

Margin of Appreciation

One of the most important parts of the ECtHR’s reasoning is setting the margin of appreciation; in other words, the space for manouevre the court is willing to give the national authorities (not the local government) in fulfilling their obligations under the Convention. The margin is given due to the international nature of the court, the difficulty it may have reconstructing national factual contexts and interests. When the ECHR is raised in a domestic courts, Irish judges should bear in mind that the decision they are holding was shaped by an international court which was holding back out of respect for their competence. Cases such as Winterstein are the lowest common denominator, and Irish judges for example, must remove the margin of appreciation and consider their role as national courts. The author has suffered moments of exasperation when picking up High Court judgments that chant ECHR case law in a poorly adapted and inert manner. Of course, even worse is when Irish judges use the term ‘margin of appreciation’ to describe why they must defer to local authorities.

Here, the Court held that the margin of appreciation in areas of social and economic policies was wide, but that the involvement of Traveller rights must make it more likely to intervene. Article 8 rights were crucial to Traveller identity, their personal self-determination, their physical and moral integrity as well as the community ties.

How to Conduct a Proportionality Analysis under Article 8

While the Court held that the proposed eviction was for a legitimate aim (public interest in environmental protection), and prescribed by law, it held that the interference with the Travellers’ rights was not proportionate to that aim. It held that the authorities did not adequately prove the necessity of the eviction order.

National Courts should extensively examine the proportionality of an eviction

Significantly for Ireland, the Court in Winterstein stressed the need for an independent tribunal to evaluate the proportionality of an eviction decision. National Courts must examine proportionality arguments in detail and with adequate reasoning.  For Irish judicial reviews, this establishes an expectation that the High Court should undertake a sustained proportionality analysis of the type envisaged by Denham CJ in Meadows v Ireland. As my co-author Fiona Donson and I will argue in our forthcoming book Administrative Justice in Ireland, Irish judges have failed to regularly apply a structured proportionality analysis in the post Meadows climate. Rather, we often see a defensive posture adopted which uses a subjective, impressionistic proportionality analysis. This operates in reverse, by starting with the presumption that findings of disproportion should be rare, and then considering whether the case at hand is exceptional. Winterstein provides a valuable lever to firm up proportionality analysis in Irish cases involving the ECHR.

Also significant in this context was the finding that the French courts had given unbalanced treatment to the case by simply installing the non-compliance with planning law as being of overpowering and paramount importance, without balancing this against the rights of the applicants. The need to balance cannot be overpowered or silenced by merely invoking the lack of planning authorization.

The need to investigate alternative caravan accommodation

The principle of proportionality demanded that particular consideration be given to the consequences of the eviction and the risk of resulting homelessness. The Court stressed that special consideration must be given to Traveller identity when devising solutions to the unlawful settlement of land or deciding on possible alternative accommodation. It held that the need to consider alternative accommodation had been met in the case of the four families who sought social housing – they had not been immediately evicted and  had been accommodated after four years. It found, however, that the municipal authorities had failed to consider alternative accommodation options for those seeking family caravan sites. In perhaps the most significant aspect of its judgment, the Court ruled that merely offering Travellers ‘bricks and mortar’ accommodation when they have expressed a wish to live in a caravan does not represent adequate consideration. The Council must attempt to facilitate their cultural identity by exploring reasonable alternatives for caravan accommodation. This did not occur here, despite the fact that for six years the Council had had a plan to create family caravan site, which it later felt it had to abandon. Travellers who request caravan accommodation cannot be criticized for not having requested or accepted social housing. Where special attention to alternative caravan accommodation is not paid, it deepens the seriousness of the rights violation and makes it far more difficult to justify eviction, particularly where vulnerable individuals or families are subject to the order. The Court stressed that the overall, systemic deficiencies in caravan accommodation will also be taken into account in assessing whether sufficient attention has been paid. This principle had already been supported by the court in a 2007 inadmissibility decision, Stenegry & Adam v France. The latter case has often been overlooked by judges, Winterstein thankfully raises the principle’s  visibility and status.

I feel this finding is very significant in an Irish context as a potential brake on constructive assimilation whereby housing is offered, and the council only vaguely cites potential caravan sites which may become available in the long deferred future. Interestingly the French government had appointed a designated officer in 2005 to consider the impact on families, but this failed to ultimately to redeem their conduct. I will return to how Winterstein might shift existing adverse Irish High Court cases such as Doherty v South Dublin County Council in a second blog post.

The Execution of Eviction Orders

The Court noted that the Article 8 rights of Travellers must be considered not merely when an eviction order is granted, but also when the authorities decide to execute the order. In particular the court mentioned the need to take into account ill health and other vulnerabilities in setting the date of the eviction and the terms of the orders. Thus, it seems possible that Irish laws which enable the criminalization of trespass could be held to be disproportionate where reflexively applied to an individual who is particularly vulnerable.

Possible Pro-Eviction Factors in Proportionality Analysis

The case is not all positive however, and a skillful lawyer might be able to distinguish some of its impact. In particular, the Court was strengthened in its finding of a violation by the fact that the council had tolerated the encampment for an extended period. The Court stressed that the involvement of an entire community which had resided on the land for an extended period should be treated differently than an individual squatter who is residing illegally on communal land. These do not overrule the requirement to give special consideration to the vulnerabilities of individuals and to practically evaluate appropriate alternative solutions. A failure to carry out impact assessment is especially egregious, as it seems to destroy even the possibility of an accurate proportionality analysis.

Conclusion

The case of course, in line with the ECtHR’s established approach, does not create a right to culturally appropriate housing. It does, however, allow us to identify pressure points in combatting the cynical selectivity of local councils, which invoke the power to evict while not engaging with the underlying accommodation issues. In a second blog I want to match up the ruling with some disappointing cases from the Irish courts. It is clear that pressure is building (a number of actions have previously been settled before they got to court), but there are also some litigation hurdles that are peculiarly Irish.

November 06 2013

A Macroeconomics of Human Rights? Contesting Austerity Budgeting

EU CommissionThis years’ budget is perhaps the first which received full ex ante and post ante supervision from the European Commission. Lobbying for rights compliant budgeting now involves growing complexity, across multiple stages and fora.  What were previously direct acts of lobbying and public debate, now possess a different character, and human rights actors must seek an equal footing and pick the correct battles in the correct places.

Budget Surveillance: Contestation and Error

For the past couple of years I have written about the vagueness of many of the central concepts which we have voted on, ratified, and transformed into our domestic legislation. This current round of supervision by the Commission has helped us understand how meanings are fixed in what is, in my view, a profoundly unstable system. So how does the Commission form judgments about concepts such as ‘structural deficit’ or the ‘output’ gap? How do these meanings ultimately filter down to the vulnerable individuals on our streets? Let’s take a look at recent disputes, and see what they tell us about how austerity comes to be institutionalized.

A key clash recently has been over how to calculate the ‘output gap’, the calculation of which depends upon the ‘natural’ rate of unemployment and productivity trends in society. I’m going to try to stay as accessible as possible here, so excuse some simplifications. Spain is particularly upset about the assumptions made regarding its economy. For 2013, the Commission has estimated Spanish production to be only 4.6% below its potential output. Yet 27% of the Spanish workforce is unemployed. Does that latter figure not suggest a higher potential? Well, the position of the Commission was that 88% of the Spanish employment is in effect, structural. Yet, all of this is applying a standard formula (reliant upon averaging over a number of years) to an unprecedented, deep recession. Spain regards the interpretation as amounting to the soft bigotry of economic theorists. We Irish have also joined them in this argument, as our Fiscal Advisory Council stressed that estimates regarding our economy were far too high.

We are supported in our argument by the simple fact that the Commission has been massively revising its estimates of structural weakness of our economy…despite they fact that a structural weakness is meant to be an ongoing thing (at least in the short term). As Jeremie Cohen-Setton notes:

…the EC’s econometric estimates of potential growth variables in Europe have been subject to massive revisions since the financial and economic crisis. For the years 2009-2012, the EC tables for the Irish economy display negative potential output growth and revisions of close to four percentage points compared to the 2008 forecast.

The overall conclusion is that we are being subjected to a volatile formula which is being put to work in unprecedented circumstances across a bewildering variety of economies. We have here decisions involving heavily qualified expertise, politics and value judgment. How do the questions actually get settled?

Political Decisions and Value Judgements

Well given all the very erudite and educated blogs flying back and forth, one might hope by economic experts – and hopefully ones who know the legal context they are operating in. Not so. The Commission’s ‘Output Gap Working Group’ is a group of experts, which wades through the concepts, and reports to the EU’s Economic Policy Committee – which is made up the member states, who officially decide. So, recently, the technical working group came to the decision that the way in which it was calculating the output gap was wrong and its complex formula needed to be adjusted. Matthew Dalton in the Financial Times, reported that the methodology would be changed – possibly lightening the load on countries such as ourselves. The Member States meet – but do not accept the technical groups proposal to change the methodology. Instead, they agreed only to make only an ad hoc, once off change to Spain’s computation. This was apparently based on the reaction of some political leaders to the Financial Times report, which provoked political concern in Germany. As Professor Simon Wren Lewis has written, the result is that the Commission is now forced into employing a formula its technical experts believe is not the most accurate. We see laid bare the political heart of a supposedly technocratic system which mystifies most EU citizens into disengagement, but profoundly shapes their future.

Lessons for Human Rights Lawyers

We see now the multiple, contradictory logics driving the Commission’s budget supervision. For Ireland, and for human rights lawyers, we must encourage our leaders to recognise the politics (and the law) within the economics. Any individual who simply dubs the system an economic matter should be seen as something of a charlatan – it is time to suit up for a new form of politics. For human rights lawyers, there is the struggle to even get into the room, as other forms of regulation are more predominant. Martin Shapiro was especially prescient regarding this new type of governance:

 …a kind of super-deliberation is imagined in which very knowledgeable people, devoid of any interests except the interest in truth, talk together…The next building block in this structure of transnational administrative law is a complex of interacting regulatory ideas and practices that combine to achieve an opaque regulatory process not easily subjected to any set of exterior norms…”soft law”; “open methods of coordination,” such as government pronouncements and jawboning; “benchmarking”; negotiated, mediated, or consensual rulemaking…[these]…tend to add up to a kind of big, soft pillow that is very hard to punch legally. No one has ever quite broken the law or ever quite obeyed it because nothing is ever quite the law. Regulation ceases to be a regiment and becomes a chat room. The metaphor may suggest a solution. Perhaps the chat can be put online and thus subject to some degree of public scrutiny and even democratic control. But the languages in which regulatory chats are conducted tend to be highly complex-technical ones that privilege those with the greatest resources…

There remains expressive force to invoking the International Covenant on Economic, Social and Cultural Rights: a countervision does lie within the sphere of human rights law. But the real barrier is practically implementing those legal obligations – the European Court of Justice (and arguably our own Supreme Court) in Pringle has indirectly sanctioned a vision of a divided international law made up of functionally separated spheres. The key challenge is gaining a site of integration to reopen the spaces which have been buried into obscure technocratic language. The European Convention on Human Rights holds out some possibilities, especially upon the accession of the European Union itself in the coming years. We must support the European Parliament in its recent efforts to remove certain investments from the deficit calculation. Nationally, we must remember the role of the Fiscal Advisory Council, which is clearly emerging as a crucial body. We may also ask the question as to how it, an independent body, views its mandate: to what extent does it appreciate the political context or legal obligations which operate upon findings. At the moment, it is natural to feel that we are all ultimately just punching the pillow. Yet, implementing human rights law demands a renewed commitment to mainstreaming rights into these new and complex processes.

October 29 2013

We would like to express our continued concern with the system of direct provision….

End Direct provisionThis letter first appeared in the Irish Times, 28 October 2013.  A number of individuals who had signed the letter, did not appear as signatories (this is due to me rather than with the Irish Times). In addition, a number of people replied after the letter was submitted.  This is the final version of the letter, with a full list of signatories:

We would like to express our continued concern with the system of direct provision. Direct provision debases the inherent dignity, worth and value of human beings. As well as the concerns expressed in the Irish Times about direct provision recently (7, 8, 21, 23 October), a High Court judge in Northern Ireland refused to send asylum seekers back to this jurisdiction, as the direct provision system was not in the best interests of children. The effects on the physical and mental health of asylum seekers in direct provision have been documented by non-governmental organisations over many years. Inadequately regulated private contractors have control over intimate aspects of living, such as when to eat, what to eat and who to share a room with. This raises serious concerns regarding the impact of direct provision on asylum seekers. Legislatively prohibited from working, some asylum seekers have no option other than to rely on direct provision accommodation centres for years on end. Barred from having access to the welfare system, asylum seekers are provided with a pittance in order to live their daily lives with some semblance of dignity. Inadequacies with the system for determining whether a person qualifies for refugee or other protection status cannot absolve the Departments of Justice and Social Protection from blame for the creation, maintenance and support of the direct provision system.  Ministers Burton and Shatter, you need to act now so as to bring this dehumanising system of direct provision to an end and restore dignity to those people exercising their internationally recognised right to seek asylum.

Yours, etc,

Samantha Arnold, Irish Refugee Council

Sarah Atkins, Cork

Bernadine Brady, Child & Family Research Centre, NUIG

Saoirse Brady

Declan Brassil, Galway City Partnership

Suzy Byrne, Dublin

Allan Cavanagh, Artist.

Mark Coen, Durham Law School, Durham University, UK

Vicky Conway, Kent Law School, University of Kent, UK

Aoife Daly, School of Law, University of Essex, UK

Yvonne Daly, School of Law & Government, DCU

Shane DArcy, Irish Centre for Human Rights, NUIG

Fergal Davis, UNSW Law School, Sydney, Australia

Sonya Donnelly, Clinical Lecturer, The University of Hong Kong, Hong Kong

Fiona de Londras, Durham Law School, Durham University, UK

Fiona Donson, Faculty of Law, UCC

Suzanne Egan, Sutherland School of Law, UCD

Máiréad Enright, Kent Law School, University of Kent, UK

Bryan Fanning, School of Applied Social Science, UCD

Maeve Foreman, School of Social Work and Social Policy, TCD

Piaras Mac Éinrí, Department of Geography, UCC

Fiona Finn, Nasc, the Irish Immigrant Support Centre, Cork

Breda Gray, University of Limerick

Alan Greene, Durham Law School, Durham University, UK

Robbie Gilligan, School of Social Work and Social Policy, TCD

Liam Herrick, Irish Penal Reform Trust, Dublin

Deirdre Horgan, UCC

Niamh Howlin, Sutherland School of Law, UCD

Jennifer Kavanagh, Law Lecturer, WIT

Patricia Kennedy, School of Applied Social Science, UCD

Danielle Kennan, NUIG

Ursula Kilkelly, Faculty of Law, UCC

Fergal Landy, Child and Family Research Centre, NUIG

Steve Loyal, School of Sociology, UCD

Louise Kinlen,  Researcher, Dublin

Grainne Mellon BL

Siobhán Mullally, Faculty of Law, UCC

Ray Murphy. Irish Centre for Human Rights, NUIG

Claire Murray, Faculty of Law, UCC

Colin Murray, School of Law, Newcastle

Muireann Ní Raghallaigh, School of Applied Social Science, UCD

Éidín Ní Shé, University of Southern Queensland, Australia

Aoife Nolan, School of Law, University of Nottingham

Trevor Ó Clochartaigh, Leinster House, Dublin

Aoife O’ Donoghue, Durham Law School, Durham University, UK

Conor O’Mahony, Faculty of Law, UCC

Jacqui O’ Riordan, UCC

Catherine O’Sullivan, Faculty of Law, UCC

Charles O’Sullivan, Cork

Helen Uchechukwu Ogbu, Galway

Fergus Ryan, Department of Law, DIT

Jennifer Scholtz, Children’s Research Centre, TCD

Jennifer Schweppe, School of Law, University of Limerick

Eimear Spain, School of Law, University of Limerick

Gavan Titley, School of English, Media and Theatre Studies, NUI Maynooth

Liam Thornton, Sutherland School of Law, UCD

Angela Veale, School of Applied Psychology, UCC

judy walsh, School of Social Justice, UCD

Roisin Webb BL, Dublin

Nessa Winston, School of Applied Social Science, UCD

Gerry Whyte, School of Law, TCD

 

C/o Liam Thornton, UCD Sutherland School of Law, Dublin 4.

October 26 2013

Romani in Europe: Persecution & Poverty

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One week after she had originally been removed from the Romani camp in which she has been raised for the past four years, DNA tests show that a Bulgarian couple are the birth parents of the girl we only know as ‘Maria’. After what has been deemed an ‘international search’ it turns out that ‘Mystery girl” Maria is in fact exactly who the Greek Romani family said she was.  A particularly insipid CBS article from Monday decried that

 It was the girl’s looks that were the first clue. She has blond hair and blue eyes, which alerted an official that she did not belong. She did not have the typical Gypsy dark hair and dark eyes.

I have already written in detail about the racist elements of meda reporting on the case here but in another not exactly shocking twist to this sordid tale, the birth mother of Maria is also of Romani origin. So it transpires that we now have had a week long media circus about what appears to be an informal adoption arrangement after a poverty-stricken mother could not care for her child. In a country where the laws of adoption are very complex and bureaucratic and legal adoptions are difficult to obtain (especially for the poor) is it that hard to believe that an informal care arrangement was reached in this case? Informal adoption or informal care arrangements are very common worldwide. So common in fact that alternative care for children is defined under a United National General Assembly resolution entitled the Guidelines for the Alternative Care of Children

…children in alternative care are without parental care and live with relatives or family friends without State involvement in selecting or monitoring those arrangements. They, like all children, are entitled to protection and care, but little is known about them.

A UNICEF report on informal care in Africa from 2011 illustrates the prevalence of informal care arrangements in African countries. in particular, in Namibia in 2006–2007, 16.2% of urban households and 41.8% of rural households were providing care to “other” or non-biological children. In Swaziland 40.1% of all rural households were providing care to non-biological children. The Guidelines are intended to enhance the implementation of the Convention on the Rights of the Child and relevant provisions of other international instruments regarding the  protection and well-being of children who are deprived of parental care or who are at risk of  being so deprived. Informal care is defined in the Guidelines as

…any private arrangement provided in a family environment, whereby the child is looked after on an ongoing or indefinite basis by relatives or friends  (informal kinship care) or by others in their individual capacity, at the initiative of the child, his/her parents or other person without this arrangement having been ordered by an  administrative or judicial authority or a duly accredited body. (Part III, 29 (b)(i))

The Convention on the Rights of the Child recognises that children have the best chance of developing their full potential in a family environment. The primary responsibility for their care rests upon their parents and legal guardians, who are entitled to support from the government in raising their children. When parents are not able or willing to fulfil this responsibility, kinship and community resources may be relied upon to provide care for the children. However, the ultimate responsibility falls on the government to ensure that children are placed in appropriate alternative care.  It appears in this case that the Greek government didn’t care very much about Maria’s well being until they thought that she was a Caucasian child.

Maria is currently being held by Smile of the Child, a Greek Charity that ‘launched the international search’ for Maria’s parents and whose President, Kostas Yannopoulos, has continued to make racist and inflammatory comments throughout the week

It shows that it could be kidnapping and combined effort of these people to buy and sell children, and when you have a good commodity like this one, they try to find a better price.

After it had been conclusively shown that Maria was the child of a Bulgarian Romani couple he suddenly had no comments to make to the media on this issue. This case doesn’t illustrate a kidnapping ring looking for a price for a blonde, blue-eyed girl. While we do not know larges aspects of this case to date, what we do know is that Maria has been in the care of this family since almost her birth, which doesn’t point them them being interested in her as a commodity, in particularly as they have kept family videos of her life growing up, as any family would do.  What this case does illustrate is the plight of Romani in Europe, many of whom spend their lives in extreme poverty due to social exclusion, engineered by the states that they have been born and live in. The European Public Health Alliance states that one of the most universally disadvantaged communities living in Europe are the Roma.

The great majority of the Roma population is found at the very bottom of the socio-economic spectrum. It is generally accepted that the Roma suffer worse health than the other populations in the countries where they live due to their higher exposure to the range of unfavourable factors that influence health. Poverty, inadequate education and lower social integration result in poor life outcomes. Moreover, discrimination and unregulated civil status (including lack of personal documents, birth certificates, insurance) make it particularly difficult for Roma to access social services. Due to the multiplicity of their discrimination and social exclusion, the inequalities faced by the Roma population highlights the cause for combating the social determinants across the board. A July 2011 report by the European Commission on social exclusion of Romani in Greece found that

Today, almost ten years after the launching of the Integrated Programme, the state of affairs as regards the Roma people in Greece, the causes of their social exclusion, the multiple problems which they are faced with, the adherence to discrimination remain, more or less, the same. Their living conditions continue to be inhuman and degrading, while they remain deprived of a wide range of their fundamental rights. Besides, given the serious pressures exercised on Greek society by the fiscal and economic crisis that the country currently undergoes, fears are expressed for an increase in discrimination for Roma people.

The question now remains as to what will happen to Maria? She has been ripped from the only family she knows and is currently staying with a charity that has made a number of unsavoury comments this week in respect of Romani. Has anyone really considered what are her rights and what is best for her at this moment as a Romani child with a distinct cultural background? I am uncertain that a young Romani child in the care of Smile of the Child, who originally refused to even communicate with her though her own language and instead choose to use sign language are the right institution to do that.  A social worker from the organisation, Athanasia Kakarouba, has also stated to the media that Maria is learning Greek and ‘has already spoken her first words, because up until now, she had only learned the Roma language’. This is a clear attempt to force cultural assimilation on Maria after less that a week in their care and raises questions about her care that need immediate answers.

 

October 17 2013

Budget 2014: Ireland and Human Rights Budgeting

Equality Budgeting CampaignThese are my very brief remarks on Human Rights and Budgeting  for the Equality Budgeting Campaign/Public Interest Law Alliance event NGO Budgeting Response  that is taking place today in the Mansion House. Slides can be accessed here: Human Rights Budgeting.

Today is the International Day for the Eradication of Poverty. Budget 2014 will impact “from cradle to grave”. A theme this year includes giving people, in particular those living in poverty a voice. (Being a well paid  lecturer in the university sector, I am not that voice). We need to be aware that the political choices over successive budgets have favoured some and greatly disadvantaged others.

Ireland has obligations under international human rights law, European human rights law, and our own domestic system of rights protections. Human rights apply regardless of economic models utilised or scarcity of resources. While admittedly there are significant challenges, political choices in Budget 2014 were designed to reward or further impoverish, discriminate or protect dignity,and as you know better than I, Budget 2014 will have significant and multiple impacts on those already at the margins. You are all very well aware of the Irish context to Budget 2014 and the cumulative impacts of several budgets over the last number of years. Deprivation. Poverty. Social Exclusion and Inequality. Political decisions as regards resource allocation have had enormous impacts on those on the very margins of our society.

So what role then for human rights in the face of these political choices within the domestic budgeting process? I recognise that human rights exist in the broader sense, by those seeking to take ownership of that term and speak to power. But here I am speaking about human rights in its more limited, yet, at times, effective, legal sense.

Ireland has freely accepted and undertook international obligations by signing up to a variety of international and European human rights treaties that protect the social, economic and cultural rights of all those in the State: the Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and parts of the Revised European Social Charter. (For discussion on socio-economic rights and the European Convention on Human Rights, see my draft paper here). Our own constitution speaks of how we are all equal and distinctions in treatment must be justified (Article 40.1) and how the State by its laws must protect and vindicate the personal rights of citizens (Article 40.3). Although the Directive Principles of Social Policy under Article 45 cannot be directly relied upon before our courts, the State has a duty to “promote the welfare of the whole people”. As Chief Justice Denham stated in 2001 in the Sinnott case (at para 193):

The Constitution is a constitution of the people expressing principles for its society. It sets the norms for the community. It is a document for the people of Ireland, not an economy or a commercial company.

Why should human rights be seen as necessary to consider in the budgeting process? The State, freely and without compulsion, undertook international obligations to ensure that rights to an adequate standard of living, housing, healthcare, protection of the social and economic rights of children, women and those from minority backgrounds apply to this State.

These legal rights are guided by several principles, including:

  • The dignity of all;
  • Equality as a social good that needs to be upheld and enforced;
  • Non-discrimination in the enjoyment of human rights, unless distinctions can be justified as legitimate and proportionate;
  • Very importantly, consultation-that does not mean one vote at the ballot box every few years, but an on-going dialogue between all as regards the political choices and legal human rights obligations that should attach to the budgetary process.

Under international human rights law the State has several tiered duties, to respect, protect, promote and fulfil its international obligations as regards social and economic rights. This includes obligations as regards non-retrogression of social and economic rights, while not absolute, exceptions to this general principle would not, I argue, be applicable in Ireland.

We are often reminded by Leinster House of our international obligations to the IMF and European Commission, well it’s now time to remind Leinster House of our other international obligations under human rights law. It is time for various government departments to take their obligations seriously and put human rights and equality based budgeting on the agenda.

October 14 2013

An Assault on Human Dignity, An Assault on the Rule of Law: Direct Provision in Ireland

Direct ProvisionThis opinion piece first appeared on KOD Lyons blog on Friday, 11 October 2013. KOD Lyons in a human rights and criminal law firm based in Dublin, with substantial expertise in immigration and asylum law

 

Dr Liam Thornton is a lecturer in law and director of clinical legal education in the Sutherland School of Law

The system of direct provision is 13 years old this year. In April 2000, the system was established as a means of dealing with the relatively large numbers claiming asylum, which it was argued, was leading to accommodation shortages, particularly in the Dublin area. Some 13 years later, despite a huge fall in the numbers claiming asylum and a change in government, the system of direct provision remains intact. Over those 13 years, asylum seekers, migrants, non-governmental organisations, politicians of various hue, lawyers and academics have constantly highlighted the horrific conditions of enforced poverty in direct provision, hoisted upon asylum seekers exercising their legal entitlement to have their claims for refugee/subsidiary protection/leave to remain determined.

In light of Carl O’Brien’s series of articles on direct provision in the Irish Times, the plight of those forced to spend many years in this system, has once again highlighted the significant problems with direct provision. The response of the Minister for Justice, Alan Shatter TD is minimal at best. While welcoming the publication of inspection reports (as long as it includes all inspection reports over the last 13 years), this does not deal in anyway with the significant amount of time asylum seekers in Ireland are condemned to the modern day migrant Magdalenes’ of Ireland. The reliance on a supposedly faster system for determining protection claims in the (yet to be seen) Immigration, Residence and Protection Bill is not good enough.

The Northern Ireland High Court has already refused to return a Sudanese family to Ireland on the basis that the best interests of the child members of this family would not be protected in Ireland. Given the porous border between Ireland and Northern Ireland, the Ministers for Justice and Social Protection should take note. In the Irish High Court, a challenge to the system of direct provision is currently underway and working its way through the court.

The approach of successive governments since 2000 to the social and economic rights of asylum seekers has shown scant regard to any notion of the rule of law operating within the system of direct provision or in the social welfare system generally. There is no legislative basis for the direct provision system and the derisory payment of €19.10 per week per adult asylum seeker (€9.60 per child) made by the Department of Social Protection is outside its powers, as they are legislatively barred from making such regular weekly payments as a supplementary welfare allowance payment, due to the habitual residence condition.

The assault on the rule of law as a constraint on government power continues. The assault on human dignity by the system of direct provision also continues. It remains to be seen whether the current court challenge to the system of direct provision will bring about a situation where the socio-economic rights of asylum seekers are respected by Ireland. For now, asylum seekers coming together themselves, human rights organisations like the Irish Refugee Council, Nasc, the Irish Immigrant Support Centre, the Free Legal Advice Centres and Doras Luimní continue to highlight the inherent injustice, unfairness and inhumanity of the direct provision system. Lawyers, practicing or academic, with an interest in ensuring the rule of law and human rights, trump unrestrained government power, need to add their voices to call for an end to the direct provision system.

October 10 2013

Direct Provision: Minister Shatter Responds (and Paging Minister Burton)

Alan-ShatterYesterday in the Dáil, the Minister for Justice, Alan Shatter TD responded to Carl O’ Brien’s series of articles on the system of direct provision in Ireland. Minister Shatter’s contribution does not differ significantly from his or the Department of Justice’s comments on the direct provision system since he was appointed Minister for Justice in 2011 (the issue is raised constantly, and responses almost always the same). However, Minister Shatter has now given a firm commitment that the Reception and Integration Agency will publish inspection reports of direct provision accommodation centres. This commitment is welcome, however, we should await the publication of these reports.  It is hoped that this commitment will apply to all such reports since inspections started a number of years ago and not merely future inspection reports. However, Minister Shatter’s comment on this current controversy should leave those of us campaigning for the current system to end in no doubt, that he continues to wash his hands  of the impact that direct provision is having on men, women and children in direct provision (see here, here and here). For now, it appears that the Department of Justice and Minister Shatter are not for turning. Direct provision is here to stay. Only significant public pressure (of which I do not think exists) will result in any fundamental reform or scrapping of this horrific system.

Inspections

Minister Shatter began his response by stating that the Irish Times had focused on the worse elements and not the fact that most inspection reports were ‘positive’. These inspections were carried out by QTS Ltd., a Galway based safety consultants (one per year) and two unannounced visits by RIA officials. In 2010, before the last election, Minister Shatter stated, in response to the Free Legal Advice Centre’s report, One Size Doesn’t Fit All:

In the context of inspections, what the representatives are describing is the mirror image of the difficulties we had with children’s residential homes until the Health Information and Quality Authority, HIQA, was given a remit in that area. It is still a difficulty in the context of people suffering from disability and proper inspections in the area of fosterage. It is part of the incapacity of government over the past ten years to put in place appropriate transparent systems.

Living in Direct Provision

Regarding children protection, the Minister stated yesterday that the Reception and Integration Agency “has a robust child protection system”. He continued:

The instances of children being left alone were dealt with immediately and education of parents and guardians with reference to their responsibilities is a key feature of any follow up. In all cases, the primary carers for children are their parents.

This neatly sidesteps any questions about the communal nature of direct provision, whereby any concerns about child protection or any issues regarding child protection is the sole responsibility of the parent(s). There is no considered examination of the difficulties that parents may be facing, living in a communal setting, where parental autonomy is constantly undermined, by this culture of control. All intimate aspects of live that families usually decide themselves is controlled and contained by the direct provision accommodation system: set meal times; children never seeing their parents prepare meals, school lunches, parents reporting to accommodation centre staff.

Minister Shatter’s response to the issues raised yesterday, are full circle to the concerns he raised in 2010 on the direct provision system (emphasis added):

I cannot think of any reason people in accommodation should not be allowed to retain food within that accommodation but one is cut off from having access to food from 5.30 p.m. or 6 p.m. when the final meal is complete. That smacks of the type of operation one might apply in prisoner of war camps during a war, not the type of approach that a civilised democratic western European country should apply in any situation. That applies, if I could take away even Ms Blackwell’s qualification, whether one is dealing with adults living on their own or adults with children. There are few in this room who if they finish their evening meal at 6 p.m. might not want something small to eat later in the evening and one cannot predict these things with young children. I cannot understand why a system such as that would be regarded as appropriate.

No obligation to live in accommodation centres

Minister Shatter correctly notes that there is no obligation on asylum seekers to remain in direct provision centres (except in exceptional circumstances). Once asylum seekers inform ORAC of their new address, there generally no problem. Once an asylum seeker leaves direct provision while their claim is ongoing, the direct provision allowance (€19.10 per adult, €9.60 per child) is no longer paid. The 2010 Value for Money report noted that of the 16,000 or so persons whose claims for asylum/subsidiary protection/leave to remain were outstanding, 7,000 were in the direct provision systemThis is fine for asylum seekers who can rely on their own resources or on the charity of friends or family and leave the direct provision system.

Reforming Direct Provision

There was no serious consideration, either in the 2010 Value for Money report, or by Minister Shatter yesterday, of whether Ireland’s legal obligations go beyond merely ensuring  that somebody is not destitute. The Minister is correct that, in general, no asylum seeker has been left homeless or on the streets, (there have been some isolated cases that I am aware of where an asylum seeker was made homeless, see pp 16-17 here). Minister Shatter, like so many Ministers with responsibility before him, use the trump card of how systems for determining an individuals asylum claim will speed up, so as to ensure that, in general, the system of direct provision becomes time limited to 6 months (where possible). Given that fact that the Immigration, Residence and Protection Bill continues to be put on the back burner by the Department of Justice, such a unified decision making system will not be in place for some time. Unlike the former Secretary General of the Department of Justice, Mr Sean Aylward, Minister Shatter did not accuse lawyers of operating a “legal racket” and recognised that sometimes, asylum claims can and will take longer than 6 months to decide.

 

What about the Department of Social Protection? 

In all the focus on the Department of Justice, there is a need to also ensure that Minister Joan Burton responds to the fact that the Department of Social Protection is responsible for the direct provision allowance payment of €19.10 per week per adult asylum seeker and €9.60 per week per child. (I am ignoring the fact that the Department are acting outside their powers by even making this payment to asylum seekers, yet another sign that the rule of law does not seem to operate in our social protection system).  Minister Burton’s, Labour Party, had continuously criticised the direct provision system and direct provision allowance while in opposition (see here and here ) . Some Labour Party TDs continue to vocally oppose direct provision. Pressure needs to be applied to Minister Burton to raise the  direct provision allowance payments, which have remained the same since April 2000. Asylum seekers are not entitled to any other regular social welfare payment.  While Justice may be responsible for the Reception and Integration Agency and accommodation centres, Social Protection needs to be challenged more vigorously on their condemnation of asylum seekers to survive on meager allowances. Social Protection, and the current minister, Joan Burton, are every bit as responsible for the poverty and social exclusion faced by asylum seekers in Irish society. Minister Burton sanctions this state enforced poverty by failing to address the paltry direct provision allowance payment.

 

October 08 2013

Closing Our Eyes: Irish Society and Direct Provision

Direct Provision IrelandDirect provision is front page news in Ireland today. Carl O’Brien has a number of pieces (here, here, here and here) in today’s Irish Times on inspection reports that have found that asylum seekers live in dismal conditions in direct provision centres. This of course will be of no surprise to the Department of Justice (and Equality……) or the current Minister for Justice, Mr Alan Shatter TD. In fact, it is of no surprise to the political system as a whole, given the extensive reports from non-governmental organisations and the Ombudsman and the Ombudsman for Children. Institutions of the state know and have known for quite a bit of time about significant systemic problems with the system of direct provision. Nothing is being done about this.

What many in human rights organisations suspect (or are afraid to admit openly) is that Irish society knows full well about the system of direct provision, the vast majority of the population could not care less. In fact, the vast majority may even want a harsher system (at least if thejournal.ie commentators had their way). Politicians in the Dáil have said to me, over the years, that their work on direct provision is costing them support. Not just a few votes here and there, but very noticeable support.  Nevertheless, some TDs ( from the government parties and opposition parties) continue to highlight the major problems with the system of direct provision. In the Seanad, Senator Jillian van Turnhout raises the issue of direct provision continuously.

Concerns raised about direct provision since 2001 have included:  the lack of any legal basis for the system of direct provision, the reports of poor food quality,  infestations, cramped living conditions, individuals institutionalised in direct provision for several years. It might be helpful to put in place a timeline, so we can see just how much the legal and political systems and Irish society as a whole know of these problems with direct provision. Depressingly, as before, Irish society ignores, punishes and demonizes ‘problematic’ populations. So as to prevent societal amnesia being claimed, this timeline provides a resource to show what Irish society has known since the introduction of direct provision.

 

Direct Provision: A Select Timeline

1996 Asylum seekers legislatively prohibited from working throughout the duration of their asylum claim, on pain of criminal conviction. No penalties are imposed on employers. 

1997 Newspaper headlines include: “Asylum Seekers and Homeless vie for Shelter, agency” Irish Times 9 May 1997; “Refugees get £20 million payments” Evening Herald, 6 June 1997

1998 The then Minister for Justice, John O’Donoghue states:

It is a source of puzzlement to many people that at a time when there are no conflicts taking place near our borders … when we have no colonial links with countries in which political turmoil is taking place and when the number of claims for refugee status is declining in other European states, the Irish state shows a major increase.

The then Minister for Social Protection, Dermot Ahern TD , writes to John O’Donoghue accusing (without evidence) asylum seekers of engaging in organised welfare fraud. On 6 September 2008, John O’Donoghue announces that a system of direct provision will be introduced.  Prior to the introduction of direct provision, asylum seekers were accommodated by the Directorate of Asylum Seeker Support (DASS) under the aegis of the Department of Justice, Equality and Law Reform. Asylum seekers (and dependents) were initially accommodated in an induction centre. The stay in this induction centre would usually last for one week. After this period, the asylum seeker and any dependents would move into the private rented sector. The Health Service Executive (HSE) would provide asylum seekers with supplementary (rent) allowance. This would substantially cover the cost of renting the property from a private landlord.

1999 The structure of the system of direct provision were communicated to relevant administrative bodies, in the Departments of Justice, Social Protection and Health, on 10th December 1999 (International Human Rights Day).

2000 In April 2000, the system of direct provision commences in Ireland. Ministerial circulars from the Department of Social Protection are issued to health boards.

2001 The Reception and Integration Agency is formed, taking over the functions of DASS. The Reception and Integration Agency is never placed on a statutory footing. By the end of 2001, there are almost 5,000 individuals in the direct provision system. The first report on the system of direct provision by Bryan Fanning and Angela Veale, Beyond the Pale: Asylum Seeking Children and Social Inclusion in Ireland raises serious concerns about this system. The then Taoiseach (Prime Minister) Bertie Ahern TD  dismisses the findings of this report in the Dáil.

2002 The Irish Mirror in 2002 has a headline, “Free cars for refugees; Cash grants buy BMW’s’” Irish Daily Mirror, December 16 2002.  A Cork North Central TD, Noel O’Flynn, refers to asylum seekers as ‘spongers’ and ‘criminals’ during the 2002 General Election campaign. Noel O’Flynn’s 2002 first preference vote dramatically increases from his 1997 first preference vote.

2003 Community welfare officers (now Department of Social Protection representatives) were legislatively prohibited from providing rent supplement to asylum seekers. Since this time, no asylum seeker had access to supplementary rent allowance.  The Free Legal Advice Centres report, Direct Discrimination?, questions the legality of the direct provision system.

2004 The habitual residence condition is introduced, and asylum seekers who cannot prove habitual residence are not entitled to any form of social welfare/social assistance, except for the direct provision system. Decision makers operate a blanket exclusion on asylum seekers receiving social assistance payments, despite no such exclusion in the legislation. There are almost 7,ooo asylum seekers resident in direct provision.

2005 The  National Action Plan on Racism 2005-2008 comes into effect. The direct provision system is not considered in any meaningful way.

2006 Correspondence between the Department of Social Protection and Department of Justice (see p. 16-18 here) raised legal concerns as regards the direct provision system. The Ombudsman for Children‘s, Report to the UN Committee on the Rights of the Child (2006) raises concerns about the treatment of separated children in Ireland. The Irish Refugee Council report, Making Separated Children Visible is published.

2007 There was an attempt by the Department of Social Protection to place the direct provision payment on a legislative footing, however the Department of Justice objected to this (€19.10 per adult per week; €9.60 per child per week)  (see pp. 17 here). The reasons for the objections of the Department of Justice are not clear.

2008 The first attempted legal challenge to the direct provision system in Ireland occurs in  A.N v Minister for Justice and Equality, however the case is settled prior to going to full hearing. See, Mary Carolan, ‘Refugee who sleeps in factory seeks subsistence aid’, Irish Times, Friday, October 24, 2008, Mary Carolan, ‘State undertakes to house destitute asylum seeker’, Irish Times, Saturday, October 25 2008 and Mary Carolan, ‘Afghan man wins case on housing provision’, Irish Times, Friday, October 31 2008.  NASC report, Hidden Cork provides an overview and challenges perceptions on life in direct provision.

2009 The Free Legal Advice Centres (FLAC) successfully challenged the blanket exclusion that appeared to operate as regards denying asylum seekers any social assistance payments due to the habitual residence condition. In response to this success, the then Government introduced legislation prohibiting asylum seekers from being regarded as habitually resident for the purposes of obtaining social assistance payments. FLAC also releases a substantial report on direct provision, One Size Doesn’t Fit All, calling forfundamental reform of the direct provision system.

2010 In the 2010 report, Value for Money and Policy Report on Asylum Seeker Accommodation, published by the Reception and Integration Agency, it was argued that maintaining a system of direct provision is the most cost effective means of maintaining reception conditions for asylum seekers. I have challenged the findings of this report here and here.

2011 The European Court of Human Rights finds that the lack of any state provision for asylum seekers in Greece, in breach of Greece’s obligations under EU law, constituted inhuman and degrading treatment in violation of Article 3 ECHR. As a result of the Court of Justice of the European Union decision in M.E. v Minister for Justice, Ireland could no longer return asylum seekers to Greece. 

2012 The Irish Refugee Council publishes its report: State Sanctioned Child Poverty and Exclusion regarding the significant human rights concerns (both legal and moral) relating to the direct provision system.

2013 The Taoiseach apologies to those detained in Magdalene laundries and says ‘never again’, however politicians are unable to see any parallels with the system of direct provision (see, here, here, here and here). The Irish Refugee Council, along with other organisations, call for an end to institutional living and the direct provision system. The Minister for Health, James O’Reilly TD does not answer Senator Jillian van Turnhout’s questions on the legislative basis for the system of direct provision. A High Court challenge to the system of direct provision commences (see Christine Bohane’s update from September 2013 here). The Northern Ireland High Court refuses to return children to the direct provision system. The former Ombudsman (now European Ombudsman) intervened in the debate on direct provision and is trying to tell the government (and the people!) to stop. We have tread this path before, and how many lives did it ruin.

Thanks to Saoirse Brady who provided me with some reminders on legal changes. If there are significant reports I have not mentioned, please leave the organisation, report title and hyperlink in the comments section. I will update this post with your links sometime tonight. 

September 18 2013

Social Welfare Law and Asylum Seekers in Ireland: An Anatomy of Exclusion

End Direct provisionAs noted in July 2013 on this blog, there is currently a challenge to the direct provision system before the Irish courts. The applicants and the State were before Mr Justice Colm MacEochaidh yesterday, September 17 2013 (see report from the Irish Times here and the report of Christine Bohan from The Journal here). The case will be back before Mr Justice MacEochaidh in late October 2013, when it will (hopefully) proceed to a speedy hearing by December.   The outcome of the case may have a profound impact on the much criticised direct provision system (see here, here, here and here). Given the recent and significant criticisms of the system of direct provision by the Northern Ireland High Court, there is a necessity on the Government to fundamentally re-calibrate how Ireland deals with asylum seekers: both in terms of determining whether an individual is entitled to refugee status, subsidiary protection and/or leave to remain AND how our social security system deals with those awaiting a final determination of their protection claim in Ireland.

As regards the system of direct provision and Irish social welfare law, I have argued on several occasions (see here, here, here, here and here) that there is no legal basis for the direct provision system and the Departments of Justice and Social Protection are acting outside their powers.

In recent days, An Taoiseach Enda Kenny at the  International Society for the Prevention of Child Abuse and Neglect’s European conference in Dublin stated in his speech:

Neglect is now the most common type of abuse of children.

Picture a child going to school in the rain without a winter coat;
In damp, dirty clothes having not had a breakfast.

Going home with no guarantee of dinner to a cold house not a home.
For that child ‘loving care’ is a luxury. They just want care, basic care. But for many, it doesn’t happen.

Despite these sentiments of An Taoiseach, children (and adults) in direct provision suffer state inflicted neglect and debasement through direct provision. This is justified on the grounds that they are ‘foreign’, they are not citizens,  they are undeserving of our support, conditions in their home countries would be worse.  The State seems destined to repeat history as regards turning a blind eye and providing significant resources to ensure the long term institutionalisation of those seeking protection in this state.

The current case before the High Court further argues that the direct provision system is unconstitutional and/or contrary to the European Convention on Human Rights. In a recent article published in the Journal of Social Security Law, prior to the commencement of this current court action, I set down precisely how the system of direct provision came into being in Ireland.  A pre-peer reviewed version of this article is available here. Relying extensively on documents obtained under the Freedom of Information Act, the article presents a worrying picture of how legal rights can be set at naught through administrative actions. With knowledge of the dubious legal basis for direct provision since 2007, government departments have repeatedly ignored the lack of a legal basis for direct provision. The abstract for this article is as follows:

This article seeks to examine how social welfare rights for asylum seekers in Ireland were placed outside the confines of the law and placed within a non-legislative system, where administrative fiat trumped all notions of asylum seekers as rights bearers. Over a ten year period, asylum seekers were fully excluded from mainstream social assistance structures in place. Welfare rights were (and to a great extent, still are) viewed as being interlinked with an individual’s status as a citizen or lawful resident. Without examining the historical development of the Irish welfare state, the initial reaction to the arrival of asylum seekers included recognition of their welfare rights, as being capable of enforcement and protection within the confines of social welfare law. However, over time, welfare entitlements for asylum seekers were lessened and differentiated from mainstream welfare provision. From an inclusive welfare system that considered need over immigration status, asylum seekers in Ireland have little in the way of definitive legal right or entitlement to the separated system of welfare support, known as direct provision.  The legal and administrative processes used to achieve this separation, and the arguments made to justify placing asylum seekers outside Irish welfare law, are explored in this article. Legal challenges to this separated and lesser system of welfare entitlement, despite some initial success, have generally failed. I argue that this system of separated asylum support has been (and will be allowed) continue, due to the status of asylum seekers as non-citizens, whose continued residence in Ireland is uncertain. Nevertheless, with the imminent introduction of a new Immigration, Residence and Protection Bill, it is now time to provide the direct provision system with a firm statutory footing.

 

 

 

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