Challenge to direct provision doomed by use of incorrect proceedings and evidential deficit

Judicial review – mother and son challenging the legality of direct provision – refused asylum and awaiting decisions from subsidiary protection applications - direct provision refers to the provision of material support by the State to protection applicants to meet their basic needs - also referring to the prohibition on the payment of mainstream social welfare to protection applicants, the prohibition on employment and the detailed rules applied in accommodation centres in which protection applicants live - whether the direct provision system is in breach of the principle of the separation of powers – whether direct provision breaches and/or disproportionately interferes with constitutional and fundamental rights - whether or not the direct provision allowance system is unlawful or ultra vires - whether the denial by statutory ban of access to social welfare benefits and/or the labour market for protection applicants is unlawful – background to direct provision – prohibition on working – house rules – Ugandan mother living in direct provision for three and a half years – wrote a letter complaining that living in direct provision was an extremely negative experience and, combined with the prohibition on employment and social welfare, was a breach of fundamental human rights – no oral evidence was given – proceedings brought by judicial review – affidavit evidence only – evidence of living standards and family life whilst living in direct provision – Ugandan nationals sought to rely upon numerous reports by a variety of governmental organisations, non-governmental organisations, international organisations and institutions to support their case that ‘direct provision’ is unlawful – Minister argued that these reports were hearsay and must be excluded - relied upon for the truth of the matters asserted – inappropriate for the Court to have regard to the reports – whether direct provision has had a negative effect is a question of fact, but the Court has not been given the means to resolve this question – whether direct provision breaches the Ugandan nationals fundamental human rights – lack of specific pleading – failure to define “direct provision” - whether direct provision is a form of inhuman and degrading treatment – failure of the Ugandan nationals to discharge the burden of proof as to negative effects of ‘direct provision’ - they bear the burden of proving that ‘direct provision’ constitutes ill-treatment which has caused intense mental suffering and/or that ‘direct provision’ either humiliates or debases them in a manner which shows a lack of respect for human dignity - whether there are particular aspects of direct provision which breach human rights – argued that house rules are disproportionate and breach their right to privacy – Court found that the rules entitling room inspection, requiring signing in, the requirement to notify of intended absence, prohibiting guests were unlawful - Court found the complaints handing procedures rules to be unlawful - whether the cumulative effect of direct provision breaches the right to private life and family rights – whether the length of time spent in direct provision is a breach of rights – explanation for the delay - unduly lengthy exposure to ‘direct provision’ may well be injurious and thus unlawful – evidential deficit - whether the EU Charter on Fundamental rights is applicable - combined effect of Protocol 21 TFEU and Article 51 of the Charter is that protection applicants in Ireland do not have Charter rights in relation to their reception conditions – socio-economic rights argument – separation of powers - courts should not trespass on the role of the executive or the legislature when deciding how a particular problem might be addressed – whether the direct provision allowance is an unlawful social welfare payment - order sought would not aid the applicants in any way – Ugandan nationals argued that the Minister for Justice is operating ‘direct provision’ in the absence a legislative scheme setting down principles, policies, limitations, criteria or procedural safeguards on the exercise of executive power - claim that direct provision has fundamental consequences in respect of housing, accommodation arrangements, privacy, food and diet, freedom of movement and choice, monitoring of individuals, social interaction, financial support and personal welfare – argued that the Executive is usurping the legislative function - Government may exercise executive powers independently of the legislature - In exercising its constitutional executive powers, the Government may not trespass upon the exclusive law making function of the legislature - example of executive action establishing a scheme without legislative input in an area already governed by the legislature – whether there is a difference between the Irish language text and the English language text of the Constitution.