The Court of Appeal (CoA) has been urged to overturn a decision that the State’s failure to provide for the basic needs of homeless asylum seekers is a breach of their fundamental rights.
The Minister for Children, Equality, Disability, Integration and Youth and the Attorney General have brought an appeal against a High Court decision of last August which found the State’s response to the needs of mainly single male international protection applicants was inadequate.
The court held there was a failure to provide for the basic needs of some 2,800 newly arrived applicants between December 4th, 2023 and May 10th, 2024.
As a result, the court granted a declaration that this was in breach of the rights of those affected under Article 1 of the Charter of Fundamental Rights of the European Union.
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On Thursday, a three-judge CoA, comprising Ms Justice Teresa Pilkington, Ms Justice Niamh Hyland and Mr Justice Anthony Michael Collins was urged to reverse that decision.
The High Court case had been brought by the Irish Human Rights and Equality Commission (IHREC) in December 2023 after the government announced for the second time that it could not accommodate all single adult male arrivals amid “unprecedented pressure” on services. IHREC opposes the appeal.
In arguments on behalf of the State on Thursday, Catherine Donnelly SC and David Conlan Smyth SC said the High Court had failed to apply relevant principles in its decision.
Ms Donnelly said the High Court’s finding amounted to a radical departure from a number of fundamental principles of our system which the Oireachtas did not intend, or could not have intended, without clearer language.
It gave rise to certain practical findings “which could be described as somewhat alarming” and should give cause for pause on whether its interpretation of the statute was correct, she said.
Mr Conlan Smyth said while the total number of people who were the subject of the High Court declaration was 2,800, only 12 or 13 affidavits had been provided from international protection applicants to say how they had been affected, just 0.4 per cent of the total.
IHREC also claimed the State had failed to vindicate the constitutional rights of the applicants, but it failed in relation to that claim, he said. There was no constitutional right to housing in Ireland and any right to housing assistance under the law is “sub-constitutional,” he said.
IHREC had failed to provide satisfactory evidence that all 2,800 international protection applicants were without accommodation, he said. Unlike other jurisdictions in Europe, Ireland has no requirement that new arrivals must register in the locality they are in, he added.
The 13 or so people who swore affidavits that they were rough sleeping from time to time was not sufficient evidence to say there was a level of degradation for an entire group of people which amounted to a very serious interference with human dignity, he said.
“The State says that is simply not the case across the board here,” he said.
There had also been significant protests, some violent, some peaceful, against the provision of asylum accommodation which was not something the State could be responsible for, he said. Yet, he said, the High Court did not take this into account in consideration of whether there had been a breach of rights.
Eoin McCullough SC, for IHREC, said the High Court had been correct and had evidence before it which supported its determination. He said Court of Justice of the European Union case law required that dignity rights must be protected and asylum seekers must have certain minimum standards.
The State did not really deny there was a breach of its obligations, he said.
The State can provide accommodation or financial assistance to allow a person to obtain accommodation and clothing.
In doing so, the State had increased a weekly €33 allowance by €75 but there was ample evidence from IHREC in the High Court that it was simply not possible to obtain accommodation with this amount of money, he said.
Counsel said this was not an issue about the resources available because the State had not relied on this issue in arguing against the IHREC case.
Mr McCullough also disputed the State’s claim that IHREC needed to produce evidence to say all 2,800 were victims of a human rights violation when the names of those people were available to the State at the touch of a button.
The appeal continues.
