Published March 2021
The Ombudsman and Direct Provision Update 2020Download the 2020 Commentary (PDF)
This is my fourth commentary since my remit over the Direct Provision system was confirmed in April 2017 and it covers the calendar year 2020. In it, I set out the work of my Office in the sector since my previous Commentary, which we published in April 2020.
In my previous Commentary I referred briefly to the then emerging Covid-19 situation. As we are all aware, that situation has proven to be much more serious and has lasted much longer than I think any of us would have thought in March 2020. In the Direct Provision context, the pandemic has resulted in complaints to my Office about Covid-related curtailed movement within and between accommodation centres. The national travel restrictions have also directly impacted on the ability of my staff to physically visit centres under the Outreach programme we have run since 2017. As a result, we unfortunately had to significantly curtail the scale of our visits for 2020 compared to previous years. I comment on both of these impacts of the pandemic later in this Commentary.
During 2020 the International Protection Accommodation Service (IPAS), which is the agency responsible for accommodating applicants for international protection under the Direct Provision system, was moved from the Department of Justice to the new Department of Children, Equality, Disability, Integration and Youth. Some non-accommodation elements of the State’s interaction with protection applicants remain with the Department of Justice, in particular the Labour Market Access Unit. That Unit regulates access by protection applicants to paid employment while they await a decision on their application for international protection. My staff continue to interact with both Departments as relevant, and I would like to thank the staff of both for the constructive approach they continue to take in their contacts with my Office.
This transfer of functions means a new Department is now responsible for implementing the changes to the Direct Provision system set out in the Government’s White Paper on International Protection Accommodation and Supports which was published on 26 February 2021. As I said at the time in response to that publication, I welcome the commitments in the White Paper and look forward to the engagement my Office will have with IPAS on implementation of those commitments.
I hope this Commentary provides a useful update on the work of my Office in providing access to independent redress for residents of the wider Direct Provision system.
In my Foreword I mentioned the impact the Covid-19 pandemic has had on the work of my Office in this sector, in particular the extent to which it hindered operation of our Outreach programme of visits to centres. I also referred to the Government’s White Paper on International Protection Accommodation and Supports and the move of IPAS to a new Department. Below I comment further on these new developments in the Direct Provision sector.
In my previous Commentary, I called for a move away from the previous model of accommodating people in communal settings with shared facilities towards an approach through which residents would be provided with own-door accommodation, including suitable onsite support services. I was far from alone in making the call for change with many NGOs, human rights organisations, public representatives and others having made similar calls over many years.
The State response to those calls is set out in the White Paper which was published on 26 February 2021. I welcome the commitment in the White Paper to replace the current system with own-door accommodation coupled with onsite support services. If implemented, these changes will transform the experience of protection applicants while they await a decision on their application and will eliminate many of the issues that have given rise to complaints by Direct Provision residents. I look forward to the engagement my Office will have with IPAS on this implementation over the course of 2021.
I also focussed on the National Standards for accommodation offered to people in the protection process which IPAS is responsible for implementing. I highlighted that the living space per person per room set out in the Standards was lower than the equivalent space recommended by Mr Justice Bryan McMahon, who chaired the Working Group on the Protection Process and Direct Provision. I welcomed the commitment by the Department of Justice (who at that time administered the Direct Provision system) to move away from multi-occupancy rooms and to ensure that no more than three unrelated people would have to share a room. I am pleased to report that over the course of 2020 IPAS has honoured that commitment. IPAS has also confirmed that work is ongoing on an agreement being put in place with HIQA for it to monitor and
inspect implementation of the National Standards. I welcome this development and the further independent oversight it will bring to how protection applicants are treated while they await a decision on their application.
As with so many other aspects of life, the pandemic has impacted on the work of my Office in the sector. I comment on that impact below.
While the White Paper commits to the introduction of a new model of own-door accommodation for protection applicants, it remains the case that most protection applicants are currently housed in communal centres where dining facilities, or self-cooking areas in those centres that have them, are shared by residents. This typical type of setting presented particular challenges to IPAS in managing its accommodation portfolio in the context of a highly contagious pandemic.
In early 2020, IPAS was using eight emergency accommodation locations, mostly commercial hotels, that were not exclusively occupied by protection applicants. In its initial response to the emerging Covid situation, IPAS decided to move all the protection applicants from these locations into premises exclusively occupied by protection applicants. This approach was designed to reduce the risk of infection from the wider public and to ensure that IPAS was not hindered in implementing public health guidelines that required limitations being placed on the movement of, and physical interaction between, the people under its care.
For a number of reasons, it was logistically not feasible at many Direct Provision centres, both permanent and emergency, for people who became Covid infected to self-isolate as required for public health reasons. To
ensure it had somewhere to house self-isolating people at short notice, IPAS arranged for any person who could not isolate at their home centre to carry out their isolation in the HSE-run facility at Citywest. In a further move to reduce the risk of infection, IPAS paused on processing applicants’ requests for inter-centre transfers except for continuation of necessary health treatment or where moving people was needed to ensure smooth management of centres.
All of these steps led to complaints to my Office which I deal with in the following chapter.
For each year since my remit over the Direct Provision sector was confirmed in 2017, my Office has run an Outreach programme through which my staff visit centres. We have undertaken our visits in two main batches either side of Summer to maximise the number of residents who can see us as resident movement in, out and between centres has tended to be highest during the Summer months. Our visits have involved an initial communal meeting with residents to hear their concerns about interacting with staff at their centres, IPAS or other public service providers, most commonly the HSE and the Department of Social Protection. We then have more detailed discussion with any individual residents or families who have particular issues they wish
to raise with us. Following these communal and individual conversations, my staff then meet with centre management to discuss any centre-specific issues raised by residents.
My staff then take away any issues relevant to IPAS or other public service providers to be pursued through my Office’s normal complaint-handling process. I have commented previously on how useful both my staff and centre management have found their meetings to have been as a mechanism for early resolution of residents’ centre-specific issues, many of which have been successfully resolved through actions agreed on the day at the meetings.
We had planned to undertake a batch of our Outreach visits in Spring 2020 similar to what we did in previous years. With the initial Covid travel restrictions imposed in March 2020 we postponed our scheduled Spring visits until the Autumn when we planned to undertake a smaller number of visits in one batch. We identified 11 centres for visiting from mid-October until early November, encompassing a mixture of new centres, emergency centres, and those from which we received recurring complaints that did not lend themselves to resolution through standard desktop examination.
In order to ensure our visits did not present a risk of Covid infection, we engaged with both HIQA and the Health and Safety Authority to ensure our arrangements complied with best practice in protecting public health. Following this engagement we restructured the format of the visits which were unavoidably constrained compared to previous years.
Unfortunately, the Covid situation escalated in October and Level 5 restrictions were imposed in the second part of that month. Given the deterioration in the pandemic situation, we reluctantly decided to further postpone the programme until 2021. However, we undertook one visit as it had been scheduled for a date before the Level 5 restrictions applied.
As there was a relatively small number of people involved I need to ensure that the privacy of anyone the team spoke to is respected and that no individual can be identified from my comments about the visit. Accordingly, there is a necessary level of circumspection in my comments below.
The visit was to a relatively new permanent centre the team had not visited before. The centre provided self-cooking facilities for which the residents expressed their great appreciation, a sentiment my staff have consistently heard at centres where self-cooking facilities have been provided. Most of the issues raised by the residents were not centre-specific, and the follow-up meeting with centre management led to early
resolution of those centre-specific issues which were raised. This early resolution of local issues is in line with the consistent pattern the team has experienced since we initiated the Outreach programme in 2017. The general issues raised by residents included refusal of requests for transfers to other centres, access to the labour force, refusals of applications for driving licences and difficulties in opening bank accounts. I comment on these general issues in the following Chapter.
A particular aspect of the visit that struck the team was that, irrespective of the outcome of the subsequent conversation on their issues, roughly half of the residents they spoke to expressed deep gratitude for the simple fact that people they could complain to about their experiences had taken the time to come and see them. In my view, this further demonstrates the value of our onsite face-to-face meetings with residents.
We continued the practice we started in 2017 of following up on our visits with an open letter to residents. These letters specify which centre-specific issues had been raised, and detail actions that had been agreed or implemented by centre management following the visit. This approach ensures residents are aware of what my staff discussed with centre management.
Postponement of almost all our planned visits meant residents would not have the same opportunity to engage directly with staff of my Office that they have had for each year since 2017. In recognition of this, we offered residents of the ten other centres we had planned to visit the option of meeting with us remotely. We engaged with staff of the ten centres, and are satisfied that residents had access to appropriate devices and appropriate physical space to talk privately to us. Of the ten centres we engaged with, only seven residents booked time with us which is fewer than the number of residents we spoke to at the one onsite visit we undertook before the Level 5 restrictions.
By far the most Direct Provision complaints originate from our Outreach visits. This is a pattern we have seen every year since 2017. As we continue to receive some complaints from residents through our other complaint receipt mechanisms (mainly online or by post), we are satisfied that residents generally are aware of our service and of how to contact us. Despite this, it is our site visits that consistently generate most of our complaints. Without speculating on the reasons why this is so, I can state with confidence that the most effective way for us to reach Direct Provision residents is for us to physically visit them and have face-to-face conversations.
Other means of engagement, such as the postal and online routes, and the remote meetings we offered, simply do not achieve the same level of engagement.
Directive 2013/33/EU of 26 June 2013 of the European Parliament and the European Council (the Recast Directive) lays down standards for the reception of applicants for international protection in EU countries. It has been transposed into Irish law through SI Regulation 8 of S.I. No. 230/2018 - European Communities (Reception Conditions) which provides for vulnerability assessments to be undertaken on protection applicants at the point of arrival. This is so that any special needs arising from a person’s experiences before arriving in Ireland can be identified and appropriate action taken to address those needs. With the increase in the numbers of people seeking protection during 2018 and 2019 in particular, vulnerability assessments
were not carried out in all cases. This resulted in some protection applicants not being linked into appropriate services at an early stage, with some people being allocated to centres from which access to the particular services that were needed was difficult.
My staff has engaged with IPAS on both of these issues. IPAS has confirmed that since December 2020 it has been operating a pilot scheme in undertaking vulnerability assessments. The scheme applies to all
international protection applications not only those in IPAS accommodation. It is a voluntary process that residents can decline initially, and opt in to at a later date if they wish, or if their circumstances change.
Participating applicants are initially interviewed by trained IPAS staff with a referral to HSE special social workers for those identified as possibily vulnerable. The scheme is being further developed to include staff training, guide questions, referral pathways and a procedural toolkit. IPAS plan to produce a formal policy on vulnerability assessments when the pilot has been completed.
IPAS has confirmed that unaccompanied minors are in the care of Tusla, which continues to provide aftercare services up to the age of 23 for minors who were in the system for at least twelve months prior to turning
18. Those minors who are in the system for less than twelve months before they reach majority age are then accommodated as adults in the Direct Provision system where any necessary support services can be accessed.
It is vital that protection applicants who are vulnerable, either on age or other grounds, have their vulnerabilities recognised and are linked into appropriate support services. I welcome the steps IPAS is taking to ensure this happens, and my staff will engage with IPAS on progressing these issues over the course of 2021.
The White Paper commits the State to the phasing out of accommodating protection applicants in congregated settings with shared facilities over the lifespan of the current Government. At best, this commitment would take in the region of three years to implement, which means many protection applicants will be living in congregated settings for some time yet. For this reason, I am strongly of the view that, in the meantime, IPAS needs to have a structured policy in place for managing the human conflict that is simply inevitable among people sharing congregated settings with strangers.
Currently IPAS manages inter-resident conflict on a case-by-case basis by transferring residents between centres where it feels such steps are necessary to deal with conflicts that have arisen. While this demonstrates that IPAS acts when conflicts arise, the ad-hoc nature of its actions presents risks of inconsistency between cases and, as a result, potential unfair treatment of some of the parties involved in conflicts.
Implementing a written policy for dealing with conflicts would, in my view, set out a framework through which the competing rights of residents, both alleged perpetrators of conflict and alleged victims, and the need for IPAS to be able to properly manage centres can be addressed in a balanced way. Such a policy needs to ensure that the rights of all parties involved are fully respected when any such conflicts are investigated, and that a resident’s right to access services, including education and social services, are properly considered when any actions arising from such investigations are taken.
My staff engaged with IPAS on this point during 2020. They said that they hoped that the move to the new Department might present an opportunity for developing structured policies on this and other issues in the sector. In more recent contact IPAS confirmed that, in the context of internal restructuring that is currently under way, a new team within IPAS would take over implementation of existing written policies from the end of March 2021 and begin work on developing additional policies for the sector. This would include a written policy on the management of inter-resident conflict within centres.
My staff will engage with IPAS during the course of 2021 on progress in implementing the commitments in the White Paper, and on its progress in developing the planned written policies for the sector, in particular for managing inter-resident conflict. I intend to focus on these matters in future Commentaries.
IPAS took this action with the intent of reducing the risk of infection from the wider public and to ensure that it was not hindered in implementing public health guidelines that required limitations being placed on the movement of, and physical interaction between, the people under its care. IPAS has confirmed that over 600 residents were relocated over a period of approximately three weeks to support social and physical distancing in centres. As part of its effort to minimise disruption to the most vulnerable applicants, IPAS decided to facilitate cocooning in so far as possible in the person’s current accommodation. This was so that the person could remain linked in with their medical and/or social supports.
The main issues complained of were the level of advance information about the moves, the location of the centres people were moved to and logistical issues in the moves (such as social distancing on buses and the wearing of masks). When contacted by my Office, IPAS explained that every effort was made to provide as much information as possible in advance. However, the urgency of the situation meant that decisions and related actions had to be taken quickly to enable IPAS to take whatever steps it could to minimise the risk of infection of residents. This meant IPAS sometimes did not have as much time to engage in advance with the residents as it would have liked to. Similarly, the urgency of the situation required speedy matching of people being moved with the most appropriate accommodation available within the IPAS portfolio.
This meant there was not enough time for IPAS to undertake the consultation it would normally engage in before people are moved from one centre to another. In recognition of this, IPAS included names and contact details of the Jesuit Refugee Service (JRS) caseworkers in the letters it issued to residents who were transferring as part of these moves so that JRS could then provide support and assist with any specific concerns. IPAS also confirmed that it now issues a fortnightly Newsletter to residents at each centre through which it keeps residents informed of relevant developments in the sector.
IPAS said it ensured the number of people placed on buses was consistent with social distancing requirements and that masks were provided for everyone being moved. It said any congregation of people on buses and people not wearing masks were actions of the residents themselves and IPAS had no direct control over such actions.
Moving some 600 people over three weeks meant that, in reality, the process was complete by the time the issues it presented were brought to my Office. The fact that severe travel restrictions had been imposed by Government at the time meant it was not practicable for my staff to visit any of the centres in question to see the situation for themselves. This meant my Office was in the position of being presented with differing versions of the same events but not being in a position to independently verify the accuracy of one version of events over the other. In that scenario I was not in a position to conclude whether or not IPAS had acted reasonably in the circumstances, so equally was not in a position to engage with IPAS to seek changes to, or reversal of, any of the moves.
I would say, however, that I understand the logic of the IPAS decision to move people to centres occupied exclusively by protection applicants and I appreciate the intense pressure IPAS was under at the time to complete the moves quickly. That said, I also fully understand the position of residents who were moved to somewhere they may have known nothing about with minimum notice and little or no advance consultation.
IPAS said that it made this arrangement as individuals in centres, either single people or within family units, rarely have their own rooms. This meant it was just not practicable for people with Covid or close contacts of infected people to self-isolate as required by public health guidelines. Residents in the small number of centres that had some spare capacity at the time were allowed to self-isolate onsite where it was practicable to do so.
I appreciate the domestic disruption that would have been caused by someone having to move to Citywest to self-isolate, particularly where residents had only just been moved from one of the emergency centres shared with people other than protection applicants. However, our familiarity from our visits with the physical layout of centres would support a conclusion that most would not lend themselves to people having to self-isolate from family and from other residents. In the context of the pandemic that IPAS had to operate in, I was satisfied that IPAS’s actions on this point were reasonable.
Residents from three different centres complained that there were inadequate social distancing measures introduced at centres which resulted in unavoidable congregation of residents in dining and other communal areas of centres. My Office also received a complaint from a member of the community who was concerned about conditions generally, and actions in response to Covid-19 in particular, at their local centre. As the team was unable to visit the centres, the complaints had to be dealt with by way of desktop examination. In one case the centre manager told the team that clear social distancing directions were set out in all internal access routes and communal areas, including staggered meal times, but that these directions were not followed by a number of the residents. The complainant confirmed the directions were in place but disputed that the arrangements for meal times in particular complied with public health guidelines.
This is another example where desktop examination cannot get the full picture needed for an informed conclusion to be reached on a complaint. I would comment that in congregated settings such as Direct Provision centres there is an onus on management to ensure appropriate steps are taken to safeguard residents and staff to the greatest extent practicable, and an equal onus on residents and staff to follow those steps. In this particular case the fact the team could not visit the centre meant I could not conclude whether or not the centre’s actions were reasonable.
We received 16 such complaints in 2020 where residents received letters from IPAS stating all transfers were suspended for public health reasons. Exceptions would be made in cases where medical advice was that a person needed to be moved for urgent health reasons or where An Garda Síochána advised IPAS to move a resident for their own or others safety or security.
I can understand IPAS taking this position in a context where it was seeking to minimise the movement of people between centres as a way of reducing the risk of Covid infection among residents. However, people continue to need to move centre in order to access continuing appropriate healthcare, to reunite with family or to avail of education or training opportunities not available at their current centre. In light of that I am satisfied that requests for transfer should continue to be considered on a case by case basis in light of the IPAS policy on granting transfers where exceptional circumstances apply. The team dealt with the 16 pandemic-related cases on this basis which I comment on in the section below on complaints about IPAS.
The team dealt with two such complaints in 2020. Residents said they were unable to take up opportunities to work as public transport links from their centres were inadequate for getting to and from daily employment. The team engaged with the Department of Transport and were told that a subgroup has been set up to consider the matter with a view to overcoming the legal and legislative obstacles that currently prevent protection applicants from being granted driving licences. The Department said that, as per article 7 of EU Directive 2006/126, a driving licence can only be issued to a person who has their normal residence in the territory of a Member State. Protection applicants do not currently qualify as their residence status in the State has yet to be determined. The Department is examining a solution to this issue, among others, along with the operational changes required. Subject to legal advice, any primary legislation required will be included in the Road Traffic Bill currently going through the Houses of the Oireachtas which is expected to pass during 2021.
This response is consistent with the commitment in the White Paper that legislation giving effect to the right to apply for an Irish driving licence will be introduced before Summer 2021. I understand the practical difficulties facing the Department in attempting to implement a solution that is both legally possible and administratively workable. In light of those difficulties, in particular the need for primary legislation, its intention to have the process completed during 2021 seems reasonable. We will continue to engage with the Department on this point which is of crucial importance to those protection applicants who cannot currently get driving licences and therefore cannot in practice avail of their legal right to work.
The team dealt with two such complaints in 2020. I understand the issue is that, in order to comply with legislation preventing money laundering and other financial malpractice, financial institutions need evidence of the permanent address of people wishing to set up bank accounts. Letters from IPAS or Direct Provision centres confirming that protection applicants are residents of such centres are not considered to be acceptable for that purpose. It is confirmed in the White Paper that the Department of Justice is engaging with the Banking Federation of Ireland and key stakeholders to resolve these difficulties.
As the issues (refusals by banks of applications for bank accounts) are decisions of financial institutions, I do not have the remit to examine them. However, the Office of the Financial Services and Pensions Ombudsman does have remit, so the team engaged with that Office which confirmed it would accept complaints from residents on the matter and provided our complainants with access to its process for doing so.
We received eight such complaints in 2020, compared to 25 in 2019. I have commented above on the three of those in which complainants contended that steps taken in centres to deal with the pandemic were inadequate. In three of the remaining five cases, the residents either did not provide evidence to show that they had contacted IPAS to seek resolution of their cases or did not reply to other contacts from my Office on their complaints. One case was overtaken by events as the resident was transferred to another centre before the team could complete their examination of her complaint about her current centre. The final case was from a member of the community about conditions at the centre in the town where she lives. As with other similar cases, desktop examination is not a suitable way to verify disputed facts about conditions at centres and the team were unable to visit the centre complained of due to the Covid travel restrictions.
My Office received 41 complaints about IPAS in 2020, a decrease of 50% compared to the 82 such complaints we received in 2019. This decrease demonstrates the negative impact our inability to undertake our Outreach work has on our engagement with protection applicants.
I have commented above on the four complaints against IPAS about its actions in responding to the Covid pandemic.
In previous Commentaries I highlighted the frequency of complaints we received about refusal of requests from residents to transfer from one centre to another. I also highlighted that, with the ongoing pressure on capacity across the sector, I have no problem in principle with the policy IPAS has adopted of refusing such requests unless exceptional circumstances apply.
Refusals of transfers continues to be the largest single source of complaints against IPAS, with 25 such complaints having been made to my Office in 2020, including the 16 where the refusal letters cited the Covid pandemic as the reason for refusal.
In four cases we did not see that the residents had provided evidence of exceptional circumstances that would justify their transfer request being granted ahead of other people who had been waiting longer to move. This includes three cases where residents sought a transfer to be nearer their place of work. I understand the desire for people to be accommodated close to their place of employment. However, in a context of ongoing pressure on space in the Direct Provision sector, I would not consider these transfer requests to be on a par with people who seek to move to be nearer family or to have better access to necessary health services or appropriate education and training opportunities.
In eight cases we considered that the residents had demonstrated such exceptional circumstances, and I asked IPAS to reconsider their original refusal of them. I am pleased to report that IPAS agreed to my request in all eight cases and placed the residents on the priority transfer list which means they will be transferred as soon as suitable living space becomes available at the centres they have asked to move to.
The remaining transfer cases were discontinued, most commonly due to withdrawal by the complainant, failure to reply to communication from my Office, or the transfer request being overtaken by events before being formally examined by my Office.
A woman refused a transfer due to an outbreak of Covid at the centre to which she was moving. IPAS confirmed to the team that the outbreak had been managed in line with protocol, following which the woman agreed to the move;
IPAS refused a transfer on the basis that there was adequate living space in their current centre for the resident, her husband and young child. When told by the team that the woman was expecting a second child, IPAS undertook to contact the resident before the birth of her second child with a view to providing accommodation appropriate for what would be a family of four;
A man complained that that he shared two-bedroomed accommodation with his father and adult brother. Following contact from the team, IPAS engaged with the man’s centre manager from which it emerged that the lack of cooking facilities in the man’s accommodation was central to his complaint. Centre management then arranged for the man’s family to move to other accommodation within the centre that did have such facilities;
A man complained about the refusal by IPAS of his request for a transfer to a centre nearer his work, the lack of Halal food in the local area and the absence of a mosque in the locality. I agreed that IPAS is not responsible for a resident’s choice of paid employment or for the range of food available in communities where centres are located. Following contact from the team, IPAS engaged with the centre which provided a dedicated room for use by residents for reflection and worship;
IPAS refused a woman’s request to transfer to be nearer her partner and father of her young child as the woman’s partner was not living in Direct Provision accommodation. The team understood IPAS had no control over the woman’s partner’s movements and its concern that granting such requests could encourage future spurious requests. However, the team was satisfied the woman’s case was genuine and IPAS agreed to reconsider its refusal and granted the transfer.
In my previous Commentary I summarised a complaint from a man who had been involuntarily removed from his centre due to his persistent unacceptable behaviour. In 2020 I received a complaint from a man who was to be involuntarily removed to a location far from his centre following an alleged assault on another resident.
There was an irreconcilable difference of position between the man and IPAS on the man’s role in the alleged assault. IPAS accepted the centre’s recommendation that the complainant should be removed immediately. Irrespective of the dispute about the man’s role in the incident, the team felt his removal to a place far from his centre would negatively impact on his studies for his Leaving Certificate and his access to local social services. In light of this, the team asked IPAS to reconsider its decision to move the complainant to the other location. IPAS agreed to move the complainant to a different centre from which daily school attendance and access to his current social services would be feasible.
We received four such complaints in 2020. As was the case for complaints about contended inaction in response to the Covid pandemic, due to travel restrictions the team were unable to visit the centres in question to see the situation in them for themselves. I intend to include the centres complained about in the Outreach visits we hope to be able to undertake during 2021.
Since the move of IPAS from the Department of Justice to the Department of Children, Equality, Disability, Integration and Youth, the units within the Department of Justice with whom protection applicants interact most are the Irish Refugee Protection Programme (IRPP) and the Labour Market Access Unit (LMAU). During 2020 my Office received two complaints against the IRPP and three against the LMAU.
The IRPP operates two Emergency Reception and Orientation centres which accommodate people accepted by Ireland through the Relocation and Resettlement Programmes of the EU and the UN. These residents have a pre-approved right to reside in Ireland and stay at the centres pending provision of housing. Some Programme refugees are also accommodated in the Direct Provision centre at Mosney.
One complaint was from a man who said that other people who had arrived at his centre after him had been housed whereas he and his wife were still waiting on an offer of accommodation. The team engaged with IRPP which confirmed that other families had overtaken the resident in being offered housing. This was because the other families had children and there were more social housing units available for families with children than there were for couples or single people. IRPP confirmed that no other couple without children had been housed ahead of the resident.
Following further engagement with the team, the issue was escalated within IRPP where a senior official has since consulted comprehensively with the resident and his wife. This has resulted in a solution being found that caters for the couple’s particular housing needs.
The second IRPP complaint was from another couple at the same centre who wished to be housed beside people that they knew. Before the team had an opportunity to substantively engage on the case, IRPP was able to offer the couple housing close to their friends. I am satisfied that IRPP’s actions in sourcing both couples the housing that they did were reasonable.
Protection applicants can avail of their right to work by applying to the LMAU for permission to access the labour market. I have the remit to examine complaints about LMAU decisions, three of which the team dealt with in 2020. In one case a resident complained that she was waiting two months for a response to her application for access to the labour market. The LMAU confirmed that the resident’s application had been in train and was granted between the date of the complaint and the date the team contacted the Unit.
In another case, a resident complained that his application for access to the labour force was refused as his protection application is what is referred to as a Dublin Regulation case. The Unit told the team that the approach to such cases changed following an opinion given by the Advocate General of the European Court of Justice which changed the previous position. The team agreed with the Unit’s suggestion that the man might reapply as the fact his was a Dublin Regulation case was no longer a reason for refusing his application for LMA. A summary of this case is set out in Appendix 3.
In the third case the resident complained that she had not received a reply to her application for LMA. When the team contacted it, the Unit confirmed that the resident’s application was being considered when the resident spoke to the team and was approved shortly thereafter.
In 2019 we received 25 complaints about the Department. In 2020 we received two, both of which were about refusal of applications for the Pandemic Unemployment Payment. Previously many of the social welfare-type complaints we dealt with would have been about delays in people, particularly those in emergency accommodation, getting Personal Public Service Numbers. During 2019 my Office engaged with the Client Identity Services and the Supplementary Welfare Allowance Policy units of the Department who amended their procedures for issuing PPSNs to protection applicants. This resulted in PPSNs being issued much quicker than had previously been the case. The fact my Office received no PPSN-related complaints from protection applicants in 2020 would seem to be a very encouraging sign as to how well the amended procedures are working. In saying this, however, I would remind readers of my comments above on the impact the inability of the team to undertake the same scale of Outreach visits in 2020 when compared to 2019 has had on complaint numbers.
Both complainants lost their jobs as a result of the pandemic, but had not availed of the Department’s internal appeals mechanism on decisions on the PUP before approaching my Office. My officials advised both complainants to avail of that mechanism in the first instance and to come back to my Office should they do so but not be satisfied with the outcome. The complaints were completed in July and neither complainant came back to my Office.
Similar to what has been the case for social welfare complaints, there has been a significant reduction in the number of health sector complaints with just one received in 2020 compared to the 15 we received in 2019. Most of the 2019 complaints were about delays in accessing GP services and getting medical cards. The team engaged with Social Inclusion Unit of the HSE on both issues and agreed a mechanism through which my Office would refer people directly to HSE PCRS, thereby ensuring quicker approval of applications. Again similar to what happened with social welfare complaints, it would seem from the greatly reduced complaint numbers that this mechanism is working very well, but also we should not lose sight of the impact the reduced Outreach work has had on complaint figures.
The one health sector complaint we did get was about a resident’s difficulty in accessing mental health services and getting information on a stay she had in hospital. Following engagement by the team, the Social Inclusion Unit ensured the woman was linked in to appropriate mental health services from her centre. The team arranged for the woman to contact the hospital she had stayed in which confirmed it would provide her with the information she sought.
As I have stated above, the Covid-19 pandemic meant my staff were unable to undertake the same level of Outreach visits as has been the case since we initiated the programme in 2017. The near 64% decline in complaint numbers from Direct Provision residents between 2019 and 2020 in my view demonstrates how important our site visits are for connecting with residents. For this reason we intend to recommence our Outreach visits later in 2021.
In my previous Commentary I outlined our intention to focus our Outreach work for 2020 primarily on people still living in emergency centres. While the pandemic prevented us from doing that in 2020, we intend to continue with that focus for whatever level of Outreach we can undertake for the remainder of 2021.
A refugee is someone who, according to the 1951 United Nations Convention Relating to the Status of Refugees, has had to leave their country of origin because of “a well-founded fear of persecution because of reasons including their race, religion, nationality, membership of a particular social group or political opinion”. Under the Convention, an officially recognised refugee must be afforded protection, access to services and the right to work in another convention country.
An international protection applicant is a person seeking to be granted protection as a refugee outside their country of origin, and is awaiting the determination of his/her status. While their application is being processed, they have a right to protection but not to the freedoms that refugees have. If granted this status, the person is recognised as a refugee and is no longer an international protection applicant. In Ireland, the international protection process is a legal system which decides who qualifies as a refugee and is then entitled to remain in Ireland and under its protection. Those judged not to be refugees can be deported back to their home countries. Others may be granted permission to remain or subsidiary protection.
The terms international protection applicant and refugee are often confused: an international protection applicant is someone who claims he or she is a refugee, but whose claim has not yet been definitively determined.
|Body Complained About||Complaints Received||Upheld||Not Upheld||Assistance Provided||Discontinued or Withdrawn||Outside Remit|
|International Protection Accommodation Service|
|Complaint Against Staff Member||3||1||0||0||2||0|
|Direct Provision Centres|
|Complaint Against Staff Member||3||0||0||0||3||0|
|Department of Social Protection|
|Covid 19 Payment||2||0||0||0||2||0|
|Hospitals - Delay||1||0||0||1||0||0|
|Departmet of Justice|
|Irish Refugee Protection Programme (accommodation)||2||0||0||1||1||0|
|Labour Market Access||3||0||0||1||2||0|
|Road Safety Authority||2||0||0||2||0||0|
|Waterford and Wexford ETB||1||0||0||1||0||0|
A man complained that his request for Labour Market Access (LMA) had been refused as his protection application was considered to be a Dublin Regulation case (this is where a person applies for protection in one country but is accommodated in another while their application is processed). The refusal meant he was being denied his right to work as provided to protection applicants under the relevant EU Directive.
LMA Unit within the Department of Justice explained the position on for people who are in the Dublin Regulation applying for LMA. In summary, previously people in the Dublin Regulation were not entitled to LMA in Ireland. However, in September 2020 the Advocate General of the European Court of Justice gave an opinion which changed that position. The Unit confirmed that the man’s application was refused as he made it before September 2020.
However, the Unit confirmed that the Advocate General's opinion means that LMA can no longer be refused on the basis that the protection application of the person seeking LMA is a Dublin Regulation case. The Unit suggested that if the man made a fresh LFA application, as such an application would be after the date of the Advocate General's opinion, it could not be refused on the grounds that the man’s protection application is a Dublin Regulation case.
The Ombudsman considered this was a reasonable response to the man’s complaint. He advised the man to make a new application to the LMA Unit and to return to the Ombudsman if he did so but was not happy with the outcome. The man subsequently confirmed to the Ombudsman that he re-applied for and was granted LMA.
A man complained that IPAS action in dealing with how the risk of Covid infection was managed in his centre was inadequate in the following ways:
The Ombudsman’s stated position is that protection applicants should have own-door accommodation with adequate living space and access to their own cooking facilities. This would minimise the risk of spread of infection that the current model of housing people in communal facilities presents. Pending rollout of the commitments on own-door accommodation in the Government’s White Paper, the Ombudsman seeks to provide practical assistance to residents in dealing with complaints about their current living conditions.
In this case, due to national travel restrictions, the Ombudsman’s staff were unable to visit the centre to see the situation for themselves so a desktop examination of the complaint was done. IPAS responded that it was the centre’s responsibility to provide signage and direction for maintaining social distancing, but it was the residents’ own responsibility to follow such direction. Its response to the Ombudsman’s queries on the different points raised by the man were as follows:
Overcrowding: clear social distancing signage was in place in the canteen and at the kitchenette. Canteen opening hours were extended to reduce pressure of numbers.
Hand sanitiser and masks: Initially stocks were low so sanitiser was distributed as available. By the time the Ombudsman got the complaint further stocks had been sourced and a full bottle of sanitiser was provided for each room with further supplies available on request from the centre reception. IPAS was not aware of any guidelines from the HSE before 21 May 2020 that masks were to be used in centres, but since then masks are available from centre reception for all residents on request.
Social distancing within rooms: From the outset IPAS decided to regard people in shared rooms as a household for the purposes of Covid. This means people sharing rooms (either families or unrelated people) are not required to maintain social distance and provision is in place for isolation (and removal if necessary) of any person in any household (ie shared room) who contracts Covid.
Frequency of cleaning: In response to the Ombudsman’s query, IPAS confirmed that centre management would arrange supervised access to residents to cleaning records on request.
Social distancing on centre buses by security staff: IPAS confirmed that, following contact from the Ombudsman, security staff no longer enter the bus and any necessary checks are undertaken as the residents get off the bus.
Subject to the limitations of a desktop examination in cases like this, the Ombudsman was satisfied that the IPAS response to the points the man complained of were reasonable.
A man complained that his application for a driving licence had been refused. He also complained about difficulties he was having in opening a bank account. The man said these refusals meant he could not take up employment as he had no way to get to work, and that if he could take up work that did not pay cash an employer would not be able to pay him.
As the rules on driving licences are set out in law, the Ombudsman cannot change them. Nevertheless, the Ombudsman contacted the Department of Transport about the refusal of the man’s application. The Department confirmed that currently the law does not allow for applicants for international protection to get driving licences. It told the Ombudsman that a Working Group has been set up to look at the issue with a view to overcoming the legal and legislative obstacles that currently prevent protection applicants from being granted driving licences. It said that any primary legislation required will be included in the Road Traffic Bill it was currently seeing through the Houses of the Oireachtas, a process it expected to be completed during 2021.
The Ombudsman contacted the Office of the Financial Services and Pensions Ombudsman about bank accounts. That Office confirmed that people can complain to it about any issues they may have in trying to set up a bank account. It provided the Ombudsman with details of the process for people to follow when making a complaint to that Office which the Ombudsman passed on to the man.
While the Ombudsman cannot change the law on driving licences and another Office is responsible for dealing with complaints about difficulties in opening bank accounts, he was able to provide further information to the man on the issues he complained about.
A man complained that his medical records were not transferred to the health service in his new location following his transfer there from a centre in Dublin. This meant that, when he went to hospital from his new centre for continuation of the treatment he had been getting, staff were not aware of his relevant medical history so they could not continue his treatment. The man said IPAS had not replied to his communication to them about his situation so he had no choice other than to leave his new centre so he could continue to get treatment in Dublin.
When his treatment finished, the man said he applied to IPAS for readmission into the Direct Provision system but that IPAS did not reply to this contact.
The Ombudsman asked IPAS to set out the process that applies to a resident’s medical records when that resident transfers from one centre to another. IPAS confirmed that it tells the HSE about all moves prior to transfers taking place so that the HSE can arrange for transfer of medical records. In this case the man did not contact the HSE about the new hospital not having access to his medical records before he left his new centre.
When a person who has left Direct Provision wishes to be readmitted into the process, IPAS require them to complete a means declaration form. If a person declares they do not have means they are entitled to avail of IPAS accommodation while their protection application is processed. This applies equally to people arriving in Ireland for the first time and those who have left Direct Provision but wish to be readmitted into the process.
IPAS told the Ombudsman the man had not replied to its request for him to complete the means declaration form. The man told the Ombudsman he had never got the form. To bring clarity to the matter, the Ombudsman asked IPAS to re-issue the form to the man and to copy the Ombudsman on this correspondence as evidence the form had been re-issued. IPAS agreed to the request and re-issued the form to the man.
As re-issuing the means declaration form meant the man was given the option of providing the information that was needed for his application for re-admittance to be considered, the Ombudsman considered the IPAS response to be reasonable.
A man contacted the Ombudsman about (i) the refusal by IPAS of his request for a transfer to a centre nearer his work due to the cost of transport in getting there, (ii) the lack of Halal food in the locality where his centre was located and (iii) not having access to a mosque in the locality.
The Ombudsman agreed with IPAS that it was the man’s own choice where he took up paid employment so his case did not have the exceptional circumstances that would justify transferring him ahead of other people who could demonstrate such exceptional circumstances. The Ombudsman also agreed that IPAS is responsible for ensuring appropriate food is available in centres, but that is has no responsibility for the range of food available in communities where centres are located. The man confirmed Halal food is available at his centre.
IPAS told the Ombudsman that the man’s centre was in an area well served by public transport which should provide him with relatively easy access to a mosque. As the man was in paid employment the Ombudsman did not consider this response to be unreasonable. However, when the Ombudsman contacted him, the man said public transport was not feasible as his faith required him to pray five times a day. The Ombudsman put this point back to IPAS and requested it to engage with the man’s centre on the provision of an appropriate space for prayer there.
IPAS engaged with the centre which provided a dedicated room for use by residents for reflection and worship. The Ombudsman considered this to be a reasonable response to that aspect of the man’s complaint.
A woman complained at an Outreach visit that IPAS refused her request for a transfer to a different centre so she and her family could have a bigger living space. She also complained that other residents in the centre were making noise late at night which was disturbing her young child. The woman told the Ombudsman that she was expecting her second child.
The Ombudsman’s stated position is that protection applicants should have own-door accommodation with adequate living space and access to their own cooking facilities. Pending that being the case through rollout of the commitments in the Government’s White Paper, the Ombudsman seeks to provide practical assistance to residents in dealing with complaints about their current living conditions.
Regarding the transfer, the Ombudsman explained to the woman that he accepted as reasonable the IPAS policy that, due to the pressure on accommodation space in the Direct Provision sector, people who want a transfer would need to be able to demonstrate that they have exceptional circumstances. The Ombudsman established that the current accommodation for the woman’s family is the same as for other couples who have one child. Therefore he was not of the view that the woman had exceptional circumstances that would justify her family getting a transfer ahead of other people who have been waiting longer to get transferred.
However, the woman’s situation will change when her second child is born as her family will then be a family of four at which point her current accommodation would no longer be reasonable. In that light the Ombudsman asked IPAS to reconsider its refusal of the woman’s transfer request.
Regarding the noise at night, the Ombudsman engaged with the centre manager who shortly after the Outreach visit confirmed that he discussed the matter with other residents who agreed to have greater regard for the woman’s position going forward. The woman said she was not happy with the response.
IPAS agreed to review the woman’s situation and committed to engaging with her family in seeking to move the woman’s family to more suitable accommodation before the woman’s second child is born. The Ombudsman considered the IPAS response to be reasonable.
In further contact following the Outreach visit, the Ombudsman explained to the woman that the next step would be for her to raise the issue about the noise at night with IPAS for investigation and to return to his Office if she did so but was not happy with the IPAS response.
A woman complained that the IPAS offer to transfer her to another centre was unreasonable as she had heard on the news that there had been a Covid-19 outbreak at the centre in which IPAS had offered her a place. For that reason she refused the IPAS offer.
IPAS initially told the Ombudsman that its policy was not to confirm the location of any centres with Covid outbreaks to avoid the risk of residents being stigmatised in their communities. The Ombudsman did not think this was unreasonable in general but that it was not relevant in the woman’s case as the Covid outbreak at the centre it offered her had already been confirmed publicly. IPAS then confirmed that there was an outbreak, but that it has been dealt with through the IPAS protocols for dealing with Covid and there were no longer any cases at the centre.
On the basis that the Covid issue at the centre had been managed, the Ombudsman told the woman that in his view there would be no greater health risk in moving to the new centre as there would be with moving to any other centre. In light of that it was his view the IPAS offer was a reasonable response to her request for a transfer.
The woman subsequently confirmed to the Ombudsman that she had accepted the offer of a transfer to the new centre.
A woman complained that IPAS refused her transfer on the grounds that it had to minimise the movement of people between centres due to the Covid pandemic. The woman said her family of five were sharing one room and she asked to be moved to one of a number of centres she specified.
The Ombudsman’s stated position is that protection applicants should have own-door accommodation with adequate living space and access to their own cooking facilities. This would minimise the risk of spread of infection that the current model of housing people in communal facilities presents. Pending rollout of the commitments on own-door accommodation in the Government’s White Paper, the Ombudsman seeks to provide practical assistance to residents in dealing with complaints about their current living conditions.
The Ombudsman noted IPAS confirmation that the family had been told in advance about the room configuration before they moved to the centre but accepted a move there nevertheless. He told IPAS that he understood the case for minimising movement of people between centres in the context of Covid, but that an exception was justified in cases such as a family of five living in one room. For that reason he asked IPAS to reconsider its refusal of the woman’s request for a transfer. He told IPAS that in the circumstances he would not consider it unreasonable for IPAS to ask the family to self-isolate before moving to a new centre.
IPAS agreed to grant the woman’s family a transfer and to place them on the priority list for a move as soon as suitable space became available. Due to the pressure on space in the Direct Provision sector, IPAS said it could not guarantee that suitable space would become available at the centres the woman had specified and the transfer may need to be to the first centre at which suitable space would become available.
The Ombudsman was satisfied that the IPAS response to the woman’s request was reasonable.
A man complained that he, his brother and father (all adults) had to share two-bedroomed accommodation at their centre whereas he was aware of other cases at his centre where children of various ages had their own rooms. The man said the situation was causing him great stress and anxiety and that he had engaged with his centre manager on the matter for a long time but no progress was made. The Ombudsman initially advised the man to contact IPAS who have overall responsibility for the provision of accommodation to protection applicants.
The man did so and also provided IPAS with medical evidence to support his position regarding the stress and anxiety he was suffering. Firstly he was told that there was no capacity in Direct Provisions centres generally and that assignment of accommodation within a centre is a matter for local centre management, then that no transfers were being granted due to the Covid crisis. The man then contacted the Ombudsman again on the matter.
The Ombudsman asked IPAS to refer the man’s case to its panel of medical assessors who consider whether or not the medical circumstances outlined by people seeking transfers justify those people being granted transfers ahead of other people. IPAS did this and also engaged with management at the man’s centre. It emerged that the lack of cooking facilities in the man’s accommodation was central to his complaint, in response to which centre management arranged for the man’s family to move to other accommodation within the centre that did have such facilities.
The Ombudsman’s stated position is that protection applicants should have own-door accommodation with adequate living space and access to their own cooking facilities. While the man in this case had own-door accommodation, it is clear that the cooking facilities were not adequate. Pending rollout of the commitments on accommodation, including cooking facilities, in the Government’s White Paper, the Ombudsman seeks to provide practical assistance to residents in dealing with complaints about their current living conditions.
As the man had not raised the point on cooking facilities with the Ombudsman when he made his complaint, the Ombudsman asked him if he was happy with the arrangement made by centre management. The man confirmed the move and that he and his family were happy with their new accommodation. He thanked the Ombudsman for his role in resolving the man’s issues.
A woman complained that IPAS refused her transfer to a named location on the grounds that it had to minimise the movement of people between centres due to the Covid pandemic. The woman sought the transfer so that she and her young child could be nearer her partner, her child’s father, whose protection application had been approved and was living in the community at the named location.
The Ombudsman asked IPAS to reconsider its refusal on the grounds the woman sought the transfer to bring about family reunification. IPAS replied that it was reluctant to grant transfers to facilitate access to people outside the Direct Provision process as it had no control over the movements of any such people. It also did not wish to set a precedent that it was concerned could lead to spurious transfer requests being made. The Ombudsman understood the IPAS desire not to set such a precedent, but replied that it would be unfair to reject all transfer requests of that type on the grounds that some of them might turn out to be spurious. He therefore asked that such requests be considered on a case by case basis.
In the woman’s particular case he saw no reason to question the integrity of her reason for seeking the transfer so he repeated his request for IPAS to reconsider its decision on a once-off basis.
IPAS agreed to grant the woman’s transfer request. The Ombudsman was satisfied that this was a reasonable response to the woman’s request. The woman thanked the Ombudsman for his assistance in facilitating her transfer.