Transcript Rights & State Obligations

Economic Social & Cultural
Rights in the Direct Provision
System: Rights and State
Obligations
FLAC – the Free Legal
Advice Centres
Economic Social & Cultural Rights




Social Rights: Core requirements for a dignified existence
Economic Rights: Right to participate in economic activities and
maintain oneself
Cultural Rights: Right to participate and preserve ones cultural
identity
Economic Social and Cultural Rights vs. Civil and Political Rights
•
•
Usually set in opposition of each other
High degree of interaction between rights
13 February 2012
FLAC
2
Applicability of Socio Economic
Rights

Ireland is a Dualist State
•
•


International treaties entered into must be incorporated into
domestic law before they are applicable within the State
Ratified Treaties cannot be relied upon in national courts until they
are incorporated into Irish law but may be influential
International Human Rights instruments not justicable
State is still subject to binding obligations of international human
rights instruments to which it has voluntarily signed up
13 February 2012
FLAC
3
Economic Social and Cultural Rights as
Human Rights



Legal and Moral Obligations
•
•
Duty to Respect, Protect, and Fulfil
Dignity and equality of all persons
Core Values of Bunreacht na hÉireann
•
Respect for dignity, equality and the common good
Direct Provision Policy and Respect for Dignity & Equality
•
•
•
•
Push factors of Direct Provision System
Prohibition on Right to Work
Restriction on access to social security
• HRC
• Right to Reside
Social Exclusion and Lack of Autonomy
13 February 2012
FLAC
4
Bunreacht na hÉireann


Fundamental Rights Art 40°-44°
•
•
•
•
Ryan v Attorney General [1965]
Natural Law
Right to Education
Right to Health
McGee v Attorney General
Walsh J
“…Natural rights, or human rights, are not created by law but that the Constitution confirms
their existence and gives them protection. The individual has natural and human rights over
which the State has no authority”

Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999
Denham J
“…[A] person who is not entitled to be in the State cannot enjoy Constitutional rights which
are co-extensive with the Constitutional rights of the citizen and persons lawfully residing in
the State. There would however, be a constitutional obligation to uphold the human rights
of the person affected which are recognised, expressly or by implication, by the
Constitution, although they are not co-extensive with the citizen’s Constitutional rights.”
13 February 2012
FLAC
5
Bunreacht na hEireann cont’d


Dignity, Equality and Concern for the Common Good
•
Guarantee of equality as human persons (Irish text) Walsh J Quinn’s
Supermarket vs. Attorney General (1972)
Fundamental Rights vs. Immigration Policy
• Oguekwe v Minister for Justice
Denham J stated:
Although the Irish citizen child had personal rights within Article 41.3.1 of the
Constitution, “the rights are not absolute, they have to be weighed and balanced in
all the circumstances of the case”. A decision had to be made by “striking a fair
balance in each case” and the State may have legitimate public policy aims to
prevent or restrict the exercise of such rights but these would have to be
“proportionate to the legitimate aim pursued”
•
Dimbo v Minister for Justice
13 February 2012
FLAC
6
International Human Rights Law






UN Declaration of Human Rights (1948)
UN International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD) (1965)
UN International Covenant on Economic Social and Cultural
Rights (ICESCR)(1966)
UN Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) (1979)
UN Convention on the Rights of the Child (CRC) (1989)
Not binding but State is subject to scrutiny by respective
Committees
13 February 2012
FLAC
7
Committees and General Comments

Each International Human Rights Instrument has a monitoring
body including:
•
•
•


Committees of Independent Experts
•
Committees publish its interpretation of specific human rights provisions in the
form of General Comments
All States parties are obliged to submit regular reports to the
Committees on how the rights are being implemented
•

Committee on Economic Social and Cultural Rights (CESCR)
Committee on the Elimination of Racial Discrimination (CERD)
Committee on the Rights of the Child (CRC)
The Committee examines each report and addresses its concerns and
recommendations to the State party in the form of “concluding observations”.
Ireland submitted its draft third periodic report to CESCR on 1
December 2011, available at:
http://www.dfa.ie/uploads/documents/Political%20Division/Human%20Rights/ireland
's%20third%20periodic%20report%20to%20the%20un.pdf.
13 February 2012
FLAC
8
European Rights Instruments

European Convention on Human Rights
•
•
•


Article 3 (1) obligations of State Parties to conform to the provisions in the
Convention
Article 8 Right to Family, Privacy
Incorporated in domestic law – European Convention on Human Rights Act 2003
European Social Charter
•
•
Article 11 – Right to protection of health
Article 30 – Right to protection against poverty and social exclusion
European Union Charter of Fundamental Rights – note limited in
scope as only applies where EU right at issue!
•
•
•
Article 8 – Respect for privacy and family life
Article 14 – Right to education
Article 21 – Non-discrimination
13 February 2012
FLAC
9
Right to Equality and Non
Discrimination





Domestic Law
•
•
•
Irish Constitution
Equal Status Act 2000
Equality Act 2004
• Transposes the Race Directive into Irish Law
Universal Declaration of Human Rights
•
•
Article 1
Article 7
UN International Covenant on Civil and Political Rights
•
•
Article 2
Article 26
UN International Covenant on Economic Social & Cultural Rights
•
Article 2(2)
UN Convention on the Rights of the Child
•
Article 2
13 February 2012
FLAC
10
Economic Social And Cultural Rights

Right to Housing

Right to Health

Right to Family Life

Right to Food

Right to Education

Right to Work
13 February 2012
FLAC
11
Right to Housing

Article 11(1) of International Covenant on Economic, Social and
Cultural Rights
“State parties recognise the right of everyone to an adequate standard of
living for himself and his family, including adequate food, clothing and
housing, and to the continuous improvement in living conditions “






Article 25 Universal Declaration of Human Rights
Article 5 Convention on Elimination of Racial Discrimination
Article 14 Convention on Elimination of Discrimination against
Women
Article 27 Convention on the Rights of the Child
Article 8 European Convention on Human Rights
Article 31 European Social Charter
•
Ireland opted out of ratifying this provision
13 February 2012
FLAC
12
Right to Housing


Section 63 Housing Act 1966 defines overcrowding
Committee on Economic Social and Cultural Rights, General
Comment No. 4:
Individuals as well as families are entitled to adequate housing regardless of age,
economic status, group or other affiliation or status and other such factors. In
particular, enjoyment of this right must, in accordance with Article 2(2) of the
Covenant, not be subjected to any form of discrimination



Adequate housing should have sustainable access to natural
and common resources, safe drinking water energy for cooking,
heating and lighting, sanitation and means of food storage
Right to adequate space and living conditions and non
segregation
Right to Family Privacy
13 February 2012
FLAC
13
Children and Right to Housing

2023 RIA residents are children – 36% of overall RIA residents

Article 4 Convention on Rights of the Child
•
Committee on Rights of the Child Concluding Observations

Article 24 European Union Charter of Fundamental Rights

Right to an adequate standard of living (Article 27 CRC)

National Children’s Strategy
•
•
No reference in last strategy to asylum seeking children in relation to the right
to housing and the right to an adequate space of living
New strategy may provide opportunity to include asylum seeking children
13 February 2012
FLAC
14
Right to Health


Article 40.3.1 Bunreacht na hEireann
Article 12(1) International Covenant on Economic Social and
Cultural Rights
The State parties to the present Covenant recognise the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health


General Comment 14 Right to Health (2000)
•
•
•
•
Availability
Accessibility
Acceptability
Quality
National Intercultural Health Strategy 2007-2012
13 February 2012
FLAC
15
Right to Mental Health

Impact of the causes of seeking asylum on Mental Health

Direct Provision perpetuating mental health trauma

Social Exclusion & Institutionalisation

CERD Concluding Observations of Ireland (2011)
•
The Committee is concerned at the negative impact that the policy of ‘direct
provision’ has had on the welfare of asylum seekers who, due to the inordinate
delay in the processing of their applications, and the final outcomes of their
appeals and reviews, as well as poor living conditions, can suffer health and
psychological problems that in certain cases lead to serious mental illness.
13 February 2012
FLAC
16
The Right to Health for Women

Article 12 Convention on the Elimination of Discrimination Against Women
State Parties shall take all appropriate measures to eliminate discrimination in the field of
health care in order to ensure, on a basis of equality of men and women, access to health
care services, including those related to family planning

General Comment No 14
The realisation of women’s right to health requires the removal of all barriers interfering with
access to health services, education and information, including the area of sexual and
reproductive health


Abortion
•
•
•
Article 40.3.3
Article 16(1)(e) Convention on the Elimination of Discrimination Against Women (CEDAW)
Concluding Observations UN Human Rights Committee, CEDAW
Female Genital Mutilation & Programme for Government
•
•
•
We will enact legislation to prohibit the practice of Female Genital Mutilation for the
protection of girls and women
FGM & UNCAT: Plan to introduce FGM Bill once Seanad has been put in place
FGM Bill currently at Committee Stage
13 February 2012
FLAC
17
Right to Family Life

Article 41 Bunreacht na hEireann
•
•
1° The State recognises the Family as the natural, primary and fundamental unit
group in Society, and as a moral institution possessing inalienable and
imprescriptible rights, antecedent and superior to all positive law
2° The State, therefore, guarantees to protect the Family in its constitution and
authority as the necessary basis of social order, and as indispensable to the
welfare of the Nation and the State

Article 8 European Convention on Human Rights

Article 12, 16(3) of Universal Declaration of Human Rights

Preamble to Convention on the Rights of the Child
13 February 2012
FLAC
18
Right to Family Life vs Public Policy


Oguekwe vs Minister for Justice (2008) & Dimbo vs Minister for
Justice (2008)
Irish citizen child had personal rights under Art 40.3.1 and rights of
family within Article 41

Rights not absolute

Public policy concerns would override such rights

Impact of ECJ case Zambrano (2011) on Right to Family Life
•
•
Distinction between children born in Ireland and Irish citizen children
Citizenship Referendum and impact on children born prior to referendum
13 February 2012
FLAC
19
Right to Food

Article 11 ICESCR
Right of everyone to an adequate standard of living for himself and his family,
including adequate food

General Comment No. 12
The right to adequate food is realised when every man, woman and child,
alone or in a community with others, has physical and economic access at all
times to adequate food or means for its procurement

Discrimination in access to culturally adequate food

Right to Food in the Direct Provision System

Reduction in Self Catering Facilities
•
2 self catering accommodation centres.
13 February 2012
FLAC
20
Children & The Right to Food


Infant Feeding Guidelines for Direct Provision Centre's in Ireland
•
•
HSE guidelines on feeding
•
•
•

Weaning children
Cultural wishes/traditions not taken into account
“Prepare homemade food so you know exactly what your baby is eating”
Not possible for direct provision residents as food is provided to them from
canteen
Cannot decide on what time to feed their children- set meal times
Child growth and extreme poverty- National Children’s Strategy
•
•
•
•
Diet of children linked to socio economic class of parents
The less they experience poverty and social exclusion the better the eating
habits
Responsibility for healthy eating lies with the parents
Link between low income levels and food poverty
13 February 2012
FLAC
21
Right to Education

Article 42.1, 42.3.2, 42.4 of Bunreacht na hEireann

Family as the primary and natural educator
•
•
Curtailed with Direct Provision system
State inherently control residents in Direct Provision

Free Primary School Education

Non Denominational Schools

CERD and HRC Concluding Observations
The Committee recommends that the State party accelerates its efforts to establish
alternative non-denominational or multi-denominational schools and to amend the
existing legislation that inhibits students from enrolling into a school because of their
faith or belief. (CERD concluding observations 2011)
13 February 2012
FLAC
22
Right to Education for Adult Direct
Provision Residents


Restricted access to education for adult residents
•
Have access to basic English Language and adult literacy tuition provided by
Vocational Educational Committees (VEC’s) and FETAC (Further Education
and Training Awards Council) Courses
Access to education funding limited and under scrutiny by
CWOs

Non recognition of qualifications

Difficulty for aged out minors in accessing 3rd level education
13 February 2012
FLAC
23
Right to Work


Section 9(4)(b) Refugee Act 1996
•
Individuals seeking protection in Ireland are prohibited from working
Article 6 International Covenant on Economic Social and
Cultural Rights grants
“the right to everyone to the opportunity to gain his living by work which he freely
chooses or accepts”



Article 15 EU Charter of Fundamental Rights
•
“Everyone has the right to engage in work and to pursue a freely chosen or
accepted occupation”
EU Reception Directive
•
•
•
Ireland and Denmark only countries not to sign Directive
Grants minimum standards for the reception of asylum seekers
Allows for Government to grant the right to work to asylum seekers after a period of
time which each State can stipulate
Asylum seekers entitled to participate in certain training courses,
but prevented from accessing FAS courses
13 February 2012
FLAC
24
Access to Justice





Access to Justice as a Human Right
Airey v Ireland [1979] 2 E.H.R.R. 305
•
“Everyone is entitled to a fair and public hearing within a reasonable period of time
by an independent and impartial tribunal established by law”
Illegal Immigrants Trafficking Bill 1999
•
...in the case of applications to the High Court to challenge the validity of such
decisions or other matters, a non-national is entitled to the same degree of natural
justice and fairness of procedures as a citizen
O’Donoghue v Legal Aid Board
Refugee Legal Services
•
Provides advice and representation in:
•
•
•
•
•
Asylum applications
Refugee Appeals Tribunal
Leave to remain applications
Subsidiary Protection applications
Assists in other immigration and deportation matters (only in certain case)
13 February 2012
FLAC
25
Monitoring State’s Obligations


International Human Rights Instruments not always recognised in
Court due to our dualist legal system
Signed and Ratified – Obligations on the State to realise those
rights

Duty to Respect, Protect and Fulfill

Non Discrimination and Progressive Realisation

Monitoring accountability
•
•
•
•
Identify deprivations and inequalities
Identify main determinants causing these deprivations
Assess the adequacy of policy efforts to address these factors
Assess whether policy failures are due to inability or lack of political
will
13 February 2012
FLAC
26
Identifying Inequalities and Deprivations

Human Rights Indicators
•
•
International Human Rights Standards
State Commitments
Programme for Government
Policy and Strategy Documents
•
Past outcomes
Progression or Regression
•
Disaggregated National Data (Male/Female, Indigenous/Non
Indigenous)
Inequalities and Discrimination amongst access to socio economic rights
•
Cross Country Comparison
IRC Alternative Report
13 February 2012
FLAC
27
Main Factors Causing Deprivation

Interdependence between factors causing deprivation reflects the
interdependence and indivisibility of socio economic rights
•

E.g. Right to health may be affected by access to food
Right to Health embraces wide range of socio economic rights
•
Promote conditions that can lead to healthy life

Direct and Indirect Determinants

Adequacy of policy efforts: Supply versus Demand
•
•
•
Provisions of health & education versus demand (Poverty and Cultural Barriers)
Supply
• Measuring availability, accessibility and quality of services
Demand
• Direct and indirect Policy Interventions
13 February 2012
FLAC
28
Policy Failure: Inability or Lack of
Political Will





Resources Argument
•
Progressive realisation of rights
Minimum core obligations
•
Basic level of subsistence necessary to live in dignity
Obligation to progressively realise socio economic rights to the
maximum of available resources
Article 2(1) International Covenant on Economic Social and
Cultural Rights
Prohibition on retrogressive measures
•
Need to be justified
13 February 2012
FLAC
29
Resources & Links


See our website www.flac.ie
•
FLAC report: One Size Doesn’t Fit All (2009)
•
Direct Provision Campaign page:
•
FLAC News
http://www.flac.ie/getinvolved/campaigns/current/direct-provisioncampaign/
Office of the High Commissioner for Human Rights www.ohchr.org
•
•
•
Human Rights Treaty Bodies
General Comments
Concluding Observations
13 February 2012
FLAC
30