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

Abstract

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 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.

Despite the fundamental shift in welfare provision, the system of direct provision is not set down in legislation. Instead, the system of direct provision is governed through a system of departmental circulars and administered by the non-statutory, Reception and Integration Agency. The direct provision system was founded and developed without any clear legislative basis. Rather than this system being subject to any sort of parliamentary approval or scrutiny as is normally the case with the introduction of new types of welfare systems, the introduction of direct provision emanated from central government, rather than the Oireachtas (Irish Parliament). Rather than being able to refer to law, reference has to be made to ministerial circulars and communications within and between government ministers, government departments, high ranking civil servants, those operating the community welfare system, the Health Service Executive and the Reception and Integration Agency. These documents were obtained through the Freedom of Information Act 1998. These documents are (generally) not available publicly and this article represents the first occasion where a full picture of the evolution and establishment of the direct provision has been fully considered.