A key argument advanced by Government for not accommodating asylum seekers looks set to be shot down by the European Court of Justice (ECJ).
In a significant legal opinion published on Thursday by the Luxembourg body, one of its advisers says Ireland “cannot use force majeure to justify failure to provide basic needs for international protection applicants”.
It says even where there is “a large influx of people” applying for asylum “member States cannot invoke force majeure to avoid responsibility for providing adequate reception conditions or compensating for harm caused”.
The Department of Children is appealing a High Court ruling last August that the State is breaching the fundamental rights of single, male asylum seekers by failing to provide accommodation when they present for international protection.
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The case, taken by the Irish Human Rights and Equality Commission, followed the decision by the Department of Children in December 2023 to stop providing accommodation to single, male adults seeking asylum and instead provide an allowance of €113.80 a week along with information on charities providing food and tents.
The department argued an unprecedented surge in asylum applications in the context of an unprecedented housing and accommodation crisis constituted a force majeure where the accommodation needs of all IPAs could not be met.
Since December 2023 a total of 8,017 men have applied for asylum. While over 5,000 have since been accommodated, as of Tuesday there were 3,150 IPAs “awaiting offer of accommodation”.
The question of whether force majeure could be invoked as a defence was referred by the High Court to the ECJ for preliminary ruling last year.
One of the ECJ’s 11 Advocate Generals Laila Medina was tasked with examining the issue and to advise the court.
While her opinion is not binding on the court, it is likely to be followed by the judges.
The concept of force majeure refers to abnormal circumstances, outside the control of an organisation, individual or state, the consequences of which could not have been avoided in spite of the exercise of all due care.
It can be used to excuse an operator from consequences which would normally result from noncompliance with an obligation.
In her opinion Ms Medina says there is “a clear and unequivocal obligation on member states to provide [international protection] applicants with adequate material reception conditions, including housing.
“This obligation is not conditional on the scale of the influx of applicants; rather, it is an absolute requirement that must be met, regardless of the challenges faced by the member state.”
She continues: “A large influx of applicants for international protection cannot, in itself, serve as a stand-alone defence of force majeure.”
While member states have “some discretion in how they manage such influxes”, this is limited. “It pertains only to the modalities by which the basic reception conditions are provided, and it does not extend to derogating from the fundamental obligation to ensure that applicants’ human dignity is respected.”
Welcoming the ECJ opinion, the Irish Refugee Council said it underlined that “Ireland cannot avoid its obligations under EU law to provide for basic accommodation, and means of subsistence for international protection applicants”.
The Irish Human Rights and Equality Commission described the opinion as “important” as it stated the provision of accommodation was “an absolute requirement that must be met, regardless of the challenges faced by the member state”.
