State Obligations To Provide Vulnerability Assessments
Statutory Instrument No. 230/2018 European Communities (Reception Conditions) Regulations 2018 (‘the Regulations’) transposed the ‘Reception Conditions Directive’ 2013/33/EU of the European Parliament and of the Council of 26 June 2013 (‘the Directive’) laying down standards for the reception of applicants for international protection (recast) into Irish law.
The Directive aims to guarantee a dignified standard of living for asylum seekers in EU Member States and ensure their human rights are respected. This standard is introduced by way of access to housing, food, clothing, financial allowances, a decent standard of living, and medical and psychological care. In addition, the Directive allows asylum seekers permission to access the labour market, subject to a number of conditions.
Upon arrival in this State, asylum seekers are accommodated in Direct Provision Centres provided by the State. The International Protection Accommodation Service (‘IPAS’), formerly the Reception and Integration Agency, are an administrative branch of the Department of Justice and Equality responsible for sourcing and the overall management of this type of accommodation. Due to the increase in numbers of applicants for International Protection, many of these centres are at capacity. As a result, many asylum seekers are now being housed in emergency accommodation such as hotels and guesthouses.
The Regulations provide the following broad definition of a vulnerable person:
(5) A reference in these Regulations to a vulnerable person includes a reference to a person who is a minor, an unaccompanied minor, a person with a disability, an elderly person, a pregnant woman, a single parent of a minor, a victim of human trafficking, a person with a serious illness, a person with a mental disorder, and a person who has been subjected to torture, rape or other form of serious psychological, physical or sexual violence.
The Regulations place an onus on Irish authorities to assess and consider the special needs of a vulnerable asylum seeker so that person can fully benefit from and, co-operate with the International Protection process.
Regulation 8 sets out that:
(a) shallwithin 30 working days of the recipient giving an indication referred to in paragraph (a), (b) or (c) of section 13(1) of the Act of 2015, and
(b) may at any stage after the expiry of the period referred to in subparagraph (a), where he or she considers it necessary to do so, assess—
(i) whether a recipient is a recipient with special reception needs, and
(ii) if so, the nature of his or her special reception needs.
There is no formal method for identification of the vulnerability of an asylum seeker when they enter the State. An asylum seeker is initially accommodated in the Balseskin Reception Centre where they are given a health screening and provided with information on available services and benefits. This is a preliminary health screening and is not an assessment as to the vulnerability of that person. An asylum seeker may be suffering trauma that is not outwardly manifested, making a preliminary health screening unsuitable to assess the vulnerability of an applicant.
The Joint Oireachtas Committee on Justice, Defence and Equality Direct Provision: Discussion with Ombudsman noted that no vulnerability assessment has been carried out as yet and, that due to the increase in numbers of applicants, some asylum seekers are being brought to accommodation centres without a preliminary health screening or information on how they can access a GP or medical card.
An early assessment would allow IPAS to identify individual and particular requirements and designate the asylum seeker accommodation appropriate to those particular needs and assess the need for any support services. Or, could at least place authorities on notice that these services will be required in the future. In practical terms, this ensures that the asylum seeker will be in the best position to engage with the International Protection process.
It is well documented that living conditions in many accommodation centres do not meet the threshold of a dignified standard of living. These conditions only serve to amplify the trauma, be it physical or psychological, of a vulnerable person living in such conditions. The Irish Refugee Council note in their publication that the State may be in breach of Article 3 of the European Convention on Human Rights in that the reception conditions endured by vulnerable persons could meet the threshold of inhuman or degrading treatment.
Deficiencies in the direct provision accommodation system are highlighted again during this current time of crisis. Asylum seekers who may, for example, be suffering from an undiagnosed health issue and would therefore be a “vulnerable person” for the purposes of the Regulations, are now living in centres where they are sharing bedrooms and facilities which could potentially lead to exposure to the Covid-19 virus.
The Department of Justice and Equality have published National Standards for Accommodation Centres on foot of recommendations contained in the McMahon Report. The National Standards, coming into force on 1 January 2021, propose to improve quality care and ensure consistency across accommodation centres:
In conjunction with the Department of Justice and Equality, the service provider allocates rooms to residents on the basis of needs identified in the initial, and any subsequent, vulnerability assessment. This must include consideration of the sexual orientation and gender identity of the resident in allocating rooms.
More recently, the Joint Committee on Justice and Equality published the Report on Direct Provision and the International Protection Process. With regard to supports and services within Direct Provision, the report recommends “the urgent implementation of comprehensive Vulnerability Assessments, to be conducted by appropriately trained and qualified professionals, to assess the needs of individuals entering the protection process. International protection applicants must have access to adequate mental health supports on an on-going basis, including clear referral pathways to mainstream service providers.”
The current crisis within the State does highlight shortcomings in the Direct Provision system generally and specifically failings in assessing the vulnerability of applicants for International Protection. The crisis will no doubt delay the establishment and implementation of any recommendations made by the Joint Committee which in turn will leave vulnerable people in need of assistance, in an even more vulnerable position.
 Article 15 Employment 1. Member States shall ensure that applicants have access to the labour market no later than 9 months from the date when the application for international protection was lodged if a first instance decision by the competent authority has not been taken and the delay cannot be attributed to the applicant.
 Applicants may reside in private accommodation for the duration of their time in the International Protection process, provided they are in a financial position to fund this accommodation