Government plans new system to “detain” some people who come to Ireland seeking asylum

The new government’s draft programme, published earlier this month, says it will ensure people applying for asylum “are provided with accommodation with restrictions on their movement”.

At the moment, when a person arrives in Ireland seeking sanctuary here, they can apply for asylum and then, as they await their decision, most live in accommodation provided through the state’s direct provision system.

These centres dotted across the country can be cramped, and residents often lack privacy and suffer intrusive monitoring by staff, but they can theoretically come and go as they please – to school or work, for example.

Albeit, in recent years the number of emergency asylum shelters with lower standards has ticked up, and some are told there’s no space for them in more permanent settings like direct provision centres.

And, these days, single men seeking asylum grapple with homelessness – right now, almost 3,260 of them are unaccommodated.

But the new programme for government promises to bring in a new “screening” system that’ll take place before people seeking asylum are sent to live in direct provision, or emergency asylum shelters, or on the streets.

At this new first stage, some people – who come from certain countries, or without documents, or are thought to be security threats – will be pulled aside and put in centres as their asylum cases are quickly considered.

While the previous government’s programme pledged to end direct provision, this one’s takes a decidedly different tone towards some people seeking asylum.

Fianna Fáil leader Micheál Martin and Fine Gael leader Simon Harris “want their next government to detain people for coming to Ireland to seek asylum,” the Movement of Asylum Seekers in Ireland (MASI) posted on social media.

“Much worse than the abhorrent system of Direct Provision,” MASI’s post said.

The new system

The EU’s Pact on Migration and Asylum, brought in last year, includes a section on border procedures – that includes a new screening process.

While Ireland signed up to the pact, it doesn’t have to bring in the screening process included in it, former Minister for Justice Helen McEntee, told the Dáil last summer.

That’s because it’s not part of the Schengen Zone, the Fine Gael TD said. (Within which people can theoretically move freely across national borders.)

McEntee said the government would tweak domestic laws to fall in line with the EU’s screening regulation anyway.

After that screening, some people seeking asylum will be accommodated in restricted centres, their claims will be looked at within three months, and if rejected, they should be deported within another three months, McEntee said.

If someone is deemed a security risk, that’s one reason they might be put in one of these centres. Or if they come from a country whose citizens have a success rate lower than 20 percent in being recognised as in need of protection in Europe.

People who’ve “misled authorities (such as by destroying identity documents)” will also be directed to this route, McEntee told the Dáil.

A spokesperson for the Department of Justice, said that under the EU Pact on Migration and Asylum, there is an obligation to ensure people aren’t evading border procedures.

But that doesn’t necessarily mean they have to be detained. “This can be met by way of alternatives to detention in accordance with EU law and [European Union Agency for Asylum] guidelines,” they said.

It should be pointed out, they said, that the pact came together “taking into account the fundamental rights of protection applicants”.

However, legal academics and migrant-aid workers worry about “de facto detention” of thousands of people in these proposed new restricted centres, some of whom are undeserving of such treatment.

“I think it is de-facto detention,” said Ulrike Brandl, associate professor of international and European law at the Paris London University of Salzburg in Austria.

Walls close in

The Department of Justice has told the media in the past that a large chunk of people who come to Ireland seeking asylum do not present travel documents.

Some might have something to hide or be trying to game the system in some way.

But, most of the time, people who want to come to seek asylum can’t meet rigid visa conditions or face hurdles accessing their passports to apply for a visa because of an oppressive regime or violent conflicts.

These people might decide to travel through dangerous routes to reach Europe, turning up at borders without documents.

Some people seeking asylum have said in the past that smugglers ask them to hand over forged passports once they reach Ireland.

That doesn’t mean people with forged passports don’t have any identity papers of their own, either. They can have their birth certs or other forms of ID cards issued in their country of birth, or even a passport minus an Irish visa.

Kostas Kapantais, advocacy service manager for migrants at refugee aid non-profit NASC, said the proposed new border procedure will impact those who can’t access passports and need visas that are hard to get.

“Detaining those who arrive in this manner is fundamentally misunderstanding the nature of seeking protection,” said Kapantais.

Since 2014, more than 31,000 people have disappeared in the Mediterranean Sea trying to reach Europe, shows data compiled by the International Organisation for Migration’s Missing Migrants Project.

So far in January, it’s detected 47 deaths. Drowning is the most common cause.

A 2023 paper published in the Journal of Iranian Studies, which analysed irregular migration of Iranian people seeking safety in the Netherlands, found that they face a world of hurdles leaving Iran via regular routes with all of their documents.

“Although migration restrictions are meant to limit the ways in which migrants can enter countries legally, motivations for global migration exceed these legal possibilities,” it says.

“Migrants therefore increasingly seek out irregular methods of migration,” it says.

In response, it says, Western countries double down and hammer out even more legal barriers. That helps smuggling businesses grow.

“Instead of addressing the roots of migrant smuggling, government attempts to control the phenomenon through restrictions thus contribute to the even further growth in irregular migration,” the paper says.

The EU Pact on Migration and Asylum is meant to further discourage undocumented travel with the aid of human smugglers.

But when it was still being chewed over at the European Parliament, Saskia Bricmont, a Belgian Green Party MEP, said in a speech that the pact was not going to end undocumented travel and human smuggling.

It won’t “put an end to deaths in the Mediterranean”, Bricmont said. “On the contrary, the pact seals Fortress Europe.”

Neither here nor there

The EU pact won’t kick in until 12 June 2026, but the government has been busy preparing for different aspects of it behind the scenes, internal documents show.

The Department of Justice says it’s looking at alternatives to detention in enforcing the pact. What does that look like?

“Alternatives to detention usually provide more favourable (‘less coercive’) conditions for the potential detainee, and may also be more cost-efficient,” says the European Commission website.

It can include placing people in “open or semi-open facilities run by the government or NGOs” restrained to one geographical area “combined with regular reporting requirements”.

It lists placement in hostels and hotels, too, and mentions electronic monitoring of people as other alternatives to detention. It says the latter is very intrusive, though.

When, in 2023, Swedish officials asked other EU member states if they stripped sanctuary-seekers of the freedom to move around, some countries said they did.

Austrian officials said that “in principle” asylum seekers could move freely in the country. But “their stay is only tolerated in the political district in which their place of residence is located.”

But the pact doesn’t envision these sorts of arrangements, as it would restrict people to border areas.

Those who are pulled aside in the screening process are counted as not having been admitted into the country – despite their physical presence in the country, said the spokesperson for the Department of Justice.

Brandl, the associate professor in Austria, says that means they would most likely be held in so-called “border centres” – accommodation centres that are on or around borders.

It’s unclear how Ireland is going to set up its border centres. But depending on how countries go about it, the line between curbed movement and detention can get blurry, said Brandl.

For example, if someone’s monitored and can’t leave the centre or can only go so far, she said, they’re in de-facto detention.

Brandl points to how Hungary has had these border centres already.

The move hit a snag at the European Courts of Human Rights in 2017 and again in 2021 when the court ruled that its border centres de facto detained asylum seekers.

“The Court concludes that the applicants’ confinement to the transit zone amounted to a de facto deprivation of liberty,” the 2021 judgment said.

Punish and protect

A spokesperson for the Department of Justice said a “cross departmental programme board” is overseeing the development of a national enforcement plan for the pact.

“The national implementation plan will set out the State’s proposed approach to meeting the requirements set out in the Migration Pact,” they said.

Kapantais, the advocacy service manager for NASC, said he’s worried.

“I’m concerned that those living in de-facto detention are existing on blurry soil because they are not officially on Irish ground,” he said.

Another concern is that some people’s stay in these nowhere lands will be stretched over a longer period than the three-month window promised for returning them because their country of birth or another third country they travelled from might be unwilling to take them back.

“They will be in legal limbo with limited rights in a foreign country,” Kapantais said.

Brandl says EU member states will most likely dance between trying to appease anti-immigration groups by holding asylum seekers and making sure they’re available for deportation, and upholding their human rights.

The member states most likely won’t detain unaccompanied kids in border centres, she said. “Because it is difficult for the public usually to see detained children.”

Between January and September 2024, there were 222 prosecutions of people in Ireland for not having a passport or a similar document to show to immigration officials, according to official figures.

Almost all of them are men, though men are not the only ones who travel undocumented.

Brandl says it’s always easier to pluck out men seeking asylum for harsher treatment as they’re demonised, and the public can be less sympathetic to the hardships they face.

A spokesperson for the Department of Justice said the pact spares children who have travelled alone from the border procedure unless they’re considered to be a security threat.

It did not directly respond to a query asking about young people who face accusations of lying about their age. The government currently holds these age-disputed young people who weren’t believed alongside adults.

Brandle said she’s expecting lots of court cases arising from these proposed new border centres – which are likely to be put in place not only in Ireland but across Europe under the pact.

They would most likely rely on Article 5 of the European Convention on Human Rights, she said. That upholds people’s right “to liberty and security”.