Seanad Éireann

23rd January 2018

‘Motion to Opt Into the EU (recast) Reception Conditions Directive (2013/33/EU)’





Cathaoirleach, Senators,


I am pleased to be here in the Seanad this evening to present the Government’s proposal that the State opts into the EU (recast) Reception Conditions Directive under the terms of Protocol 21, annexed to the EU Treaties. Last Wednesday, the opt-in proposal was broadly welcomed and supported by the members of the Oireachtas Joint Committee on Justice and Equality.


Opting into this Directive will align the supports that we provide to international protection applicants fully with EU norms and standards.  It will be an important and progressive step. It reaffirms our commitment to continue to implement our programme of reforms to Ireland’s international protection system. Reforming the protection process began with inviting Judge Bryan McMahon and a group of experts to review our protection system including supports for applicants in 2014. They made 173 recommendations. The Government committed to undertake a process of reform that has seen positive action across many Government Departments and services to improve what we do for people in need of protection and the way in which we do that job. I want to take this opportunity to acknowledge the hard work of Senator O’Ríordáin during his time as Minister of State.  I know he is passionate about these issues and I always listen carefully to his views. 


Like many Senators, I am concerned about the length of time that applicants spend in the protection process awaiting a final decision.  To address this issue, the previous Government undertook the biggest single reform of our legislation by introducing a single applications procedure under the International Protection Act 2015.


Ensuring that we have a simplified and efficient independent protection process is one part of our commitment to reform. The other part is to ensure that we continue to improve the living conditions and the opportunities for regular family life, in so far as possible, for applicants and their families while they await a final decision on their application for protection. We have responded positively to the McMahon recommendations to enable enhanced family living in our accommodation centres and in the range of supports and services that we provide to international protection applicants.


This is not to say that everything is perfect and complacency has set in.  We must continue to make progress and my colleague, Minister Stanton, is engaged in these issues daily.  Further, members of the McMahon Group continue to be actively involved in the process of reforming the Direct Provision system including for example by playing a role in the standards development process, which is currently underway.  


When the Supreme Court gave its judgment in the N.V.H. case on 30 May last, the outcome was that the Court declared Section 16(3)(b) of the International Protection Act, which prohibits access to employment without any temporal limit for applicants, to be unconstitutional.


The Government did not interpret this decision narrowly by simply amending the provision prohibiting access to the labour market in the Act.Instead, it listened to the calls from Deputies and Senators, the McMahon group and NGOs that Ireland should align its bespoke system with European norms and standards. Government  decided that the State would give effect to the judgment by way of opting into the EU (recast) Reception Conditions Directive. The Government has chosen to be ambitious and to enhance and protect the rights of international protection applicants and their families. The Directive not only provides a framework for effective access to the labour force, but also reaches into many other areas, which the Government feels it is timely to have validated by the European Commission to ensure that we do reach and comply with European standards.  


In addition to labour market access, the Directive also includes important provisions in relation to children’s rights, including for unaccompanied minors, healthcare and education. The Directive also defines the required material reception conditions for applicants. Participation in the Directive will place the provision of these material reception conditions for applicants on a statutory basis, underpinned by EU law, for the first time. If approved by the Oireachtas, the State will be required to demonstrate its compliance with all of the provisions of the Directive to the European Commission before it confirms our participation. This will be a rigorous and transparent process. I can assure Senators that we will make any changes required of us by the European Commission. My own Department is leading an Implementation Group, established by Government, to oversee the opt-in procedure and the compliance process within the timeframe set by the Commission, which is four months.


In terms of labour market access, the Directive provides for access to the labour market for applicants who have not had a first instance decision within nine months of making their application and provided that the delay cannot be attributed to the applicant. In determining the level of access to be provided to applicants, the Implementation Group, membership of which is drawn from across a wide range of Government Departments and services, will be cognisant of a number of important factors.


The State already has a functioning employment permits system for Third Country Nationals, which we must be careful not to undermine. Nor must we take any action, which would be detrimental to our legal migration system. The Court’s judgment acknowledges our role in setting these parameters. However, we all recognise that the Supreme Court has adjudged that protection applicants have a constitutional right to seek employment, a right that is not conferred on other Third Country Nationals who are legally residing in the State.


While the Court was also clear that this is not an unfettered right, the Government and I consider that it is appropriate to apply a balanced approach under the scope of the Directive where the level of access required will be in excess of that provided under the employment permits system. Once the State’s participation in the Directive is confirmed, I intend to provide for access for eligible applicants by way of an immigration permission, which would exempt applicants from the employment permits system and the associated fee. In determining the list of sectors of employment to which access will be granted, regard will be had to labour market gaps, as well as the skill set of applicants and the expert advice of frontline Departments. We must also be cognisant of maintaining the integrity of the Common Travel Area and of the possible impact of Brexit. Government has agreed that eligible applicants will also have access to self-employment and eligible applicants may now qualify for further vocational training, which was previously unattainable.


The operation of these arrangements will be reviewed after 12 months and we are open to amendments, having reviewed its operation.


At the Supreme Court hearing of 30 November last, the State outlined its plans to the Court to opt into the Directive, subject to Oireachtas approval, and of the four month process necessitated by the European Commission to confirm the opt in following formal notification of our wish to be bound by the Directive. We respectfully asked the Court to adjourn the making of its Final Order until this process was completed. However, the Court decided that the prohibition on international protection applicants accessing the labour market under the International Protection Act 2015 would be struck down on 9 February 2018. The participation of the State in the Directive will not be confirmed by the Court’s deadline as we await the conclusion of the Oireachtas approval process before we can begin the Commission mandated compliance procedure.


The Court’s decision means that access to the labour market for applicants must now take place under a two-stage process. With the best will in the world, it simply will not be possible for us to have completed all of the procedures required to confirm our opt-in to the Directive by 9 February. For this reason, the Government has today decided that a temporary interim solution will apply from 9 February until the date of entry into force of the Directive, whereby applicants can access the workforce in two ways. The first entry point under the temporary solution is via the employment permits system of the Department of Business, Enterprise and Innovation. All applicants will be able to access this system on the same basis as other non-EEA nationals. In practical terms, this means that applicants  will be entitled to apply or to have their prospective employer apply for an employment permit on their behalf to the Department of Business, Enterprise and Innovation in the sectors where the employment permit scheme applies. In addition, to bring some clarity to the matter of self-employment I will use my discretionary powers to introduce an administrative scheme during this period to allow for access to self-employment for eligible applicants. This scheme will apply to applicants who are 9 months or more without a first instance decision and will broadly mirror the legislative access provisions to be put in place for access to self-employment once the State opts into the EU (recast) Reception Conditions Directive. This is important as I want a smooth and efficient transition into the measures giving effect by the Directive in the coming months.


In tandem, intensive work is underway right across Government to provide for the implementation of the Directive pending its formal entry into force.   In making this process a success, I want to work with Members of both Houses, employers and all other stakeholders. A further information campaign will be launched nearer the time of entry into force of the Directive to communicate the new and enhanced access to the workforce arrangements that will apply once we are participating in the Directive.  Members of this House may wish to assist in getting the message out to eligible applicants and I would be delighted to work with you in this regard.


In conclusion, I believe that participation in the Directive would be a very positive step in bringing our international protection system and supports for applicants more closely in line with EU norms and standards. There are some areas of the Directive, particularly around health and education and State support for unaccompanied minors where we already apply more favourable provisions than would be required and these will of course be maintained. As I’ve said the operation of all the arrangements we intend to implement to give effect to the Directive will be implemented after 12 months in operation to ensure that they are effective.


I look forward to the debate.