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flac NewsI S S N 0 7 9 1 4 1 4 8 l V O L U M E 1 6 l N U M B E R 3 l J U N E - S E P T E M B E R 2 0 0 6

Substantialrevision oflegal aidmeans test:A lot done,more to do?

They were a long time com-ing but, finally, the new civillegal aid regulations were

unveiled on Friday, 1 September.Given that the means test has notbeen revised since 2002 (havingbeen introduced in 1996), any-thing but substantial changes inthe disposable income limits andthe allowances would have beena major disappointment.

Nonetheless, FLAC welcomes thechanges, many of which were sug-gested in its 2005 report on civillegal aid in Ireland, Access toJustice: A Right or a Privilege?

A synopsis of the principalchanges in the means test is asfollows:

8 The disposable income limit toqualify for the service hasrisen from €13,000 to€18,000, an increase of 38%and an acknowledgement thatthe previous limit was hope-lessly outdated, excludingmany deserving applicantsover recent years.

8 There have been a number ofincreases in the allowancesthat applicants are allowed to

set against their net incomebefore arriving at disposableincome. These include a sub-stantial increase in theallowance for actual childcareexpenses to pursue employ-ment from €1100 per child to€6000 per child, increases inthe allowance for a spousefrom €1900 to €3500 and foreach child dependant from€1100 to €1600.

8 The allowance for accommo-dation costs has gone up from€4900 to €8000, a substan-tial increase on paper but

F R E E L E G A L A D V I C E C E N T R E S

Indian human rights activist and lawyer Colin Gonsalves visitedFLAC in Dublin in September and gave two information sessions

on public interest law and litigation in India: see page 10.

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flac News Vol. 16, No. 3

F L A C N E W S l J U N E - S E P T E M B E R 2 0 0 622

iinn tthhiiss eeddiittiioonn......

Substantial revision of legal aid means test:A lot done, more to do? 1 & 16

Mothers receive child benefit even if residenceapplication not decided 2

Statutory Ombudsman forfinancial services nowavailable to consumers 2

The case for same-sexmarriage in Ireland 3

FLAC seminar series on public interest law 4

Roundtable on publicinterest law 6

Cautious welcome for proposed abolition ofRefugee Appeals Tribunal 8

Renowned Indian humanrights lawyer & activist visits Dublin 10

Child benefit & child rights 12

Child benefit & HabitualResidence Condition 14

Focus on FLAC staff:Catherine Hickey,Director of Funding &Development 15

FLAC News is publishedquarterly by the Free LegalAdvice Centres (FLAC), 13 Lower Dorset Street, Dublin 1.

Layout: Yvonne Woods

Contributors: NoelineBlackwell, Rhea Bohan, EdelHackett, Catherine Hickey, Paul Joyce, Gretchen Ransow,Marcela Rodriguez-Farrelly,Yvonne Woods

ISSN 07914148

Photos: FLAC, KAL Initiative,Derek Speirs

The dilemma of families wherean application for residencehad not been decided on

arose in some cases investigated byFLAC over the past number ofmonths and has enabled us to makea further clarification which shouldassist a wider number of families.

In these cases, a child’s mother wasrefused benefit on the basis that herresidence application had not beendecided, but the child’s father wouldhave had no difficulty proving resi-dence within the meaning of theHabitual Residence Condition(HRC). On our request for review,the decisions to refuse benefit to themother were reversed and benefitand arrears were paid to thosewomen.

FLAC is pleased to learn that theDepartment of Social and Familyaffairs has now made a decision thatin all cases where one parent is fullyresident for the purposes of theHRC, Child Benefit will be paid to themother based on the “family unitconcept”. We are also told thatcases refused in the past are cur-rently being reviewed. This decisionneeds to be publicised widely.

8 Readers who are aware ofsuch cases should alert people who have beenrefused to seek an immediatereview, as they may nowreceive Child Benefit plusany arrears due to them.

8 Also: See article on pages 12,13 and 14 on Child Benefitand the Habitual ResidenceCondition.

Mothers receivechild benefit

even if residence

application notdecided

StatutoryOmbudsmanfor Financial

Services available to consumers

Astatutory Ombudsman forFinancial Services has nowbeen in operation and receiv-

ing complaints from 'eligible con-sumers' since 1 April 2005. An eligibleconsumer includes not just personalcustomers but also charities, clubs,trusts and partnerships. It alsoincludes limited companies providedtheir turnover does not exceed €3million annually.

Complaints may be made in relationto the conduct of any 'regulated finan-cial service provider' and this defini-tion includes a wide variety of entitiessuch as credit institutions, insurancecompanies, credit unions, money-lenders, hire purchase companies,stockbrokers and insurance, creditand mortgage intermediaries. Suchcomplaints may concern the provi-sion of a financial service, an offer toprovide such a service or a failure orrefusal to provide a service.

Where a complaint is upheld, theOmbudsman has the power to directthat a specific action be taken by theservice provider and may award com-pensation to the claimant up to amaximum of €250,000.

In general, if you are unhappy withthe way that a financial serviceprovider has dealt with you, you willbe required to exhaust their internalcomplaints procedure first. TheOmbudsman's website (www.financialombudsman.ie) providescomprehensive details on the proce-dures that a complainant needs to fol-low to pursue their grievance. TheOmbudsman's office may also becontacted at 1890 88 20 90 or 01-6620899 or by e-mail [email protected]

F L A C N E W S l J U N E - S E P T E M B E R 2 0 0 6 33

On 3 October this year, DrsKatherine Zappone and AnnLouise Gilligan will arrive at

the High Court to present their casefor legal recognition of their existingCanadian marriage, usually calledthe KAL Case. If their case is suc-cessful and civil marriage is recog-nised, Ireland will join theNetherlands, Belgium, Canada,Spain, the US State ofMassachusetts and South Africa(from the end of 2006) as jurisdic-tions in which same sex couples canenjoy true equality in society.

Drs Zappone and Gilligan will seekvarious remedies before the HighCourt. In particular, they will seek adeclaration that, in failing both torecognise their Canadian marriageand to apply tax law provisions formarried couples to them as a mar-ried couple, the State and theRevenue Commissioners have actedunlawfully, in breach of their constitu-tional rights to equality, to marriage,to property rights and family rights1

and in breach of their rights to priva-cy, marriage and non-discriminationunder the European Convention onHuman Rights.2

Beyond the direct needs of the plain-tiffs, however, this case is about fair-ness and equality for all members ofthis society – its fundamental empha-sis is on respect for the rights of all toshare their lives in an atmosphere ofsocial and economic stability.

In recent years there has been enor-mous change in family structures inIreland; the numbers of those cohab-iting have increased dramatically. In1996, cohabiting couples made up4% of all family units (31,300), but by2002 this figure had more than doub-led, to just over 8% of all family units– a total of 77,600 couples. Whilestill small in relative terms, the num-ber of same-sex cohabiting coupleshas also increased very considerablyfrom 150 to 1,300 since 1996.3

The number of children living withcohabiting rather than married par-ents has increased from 23,000 chil-dren in 1996 to 51,700 children in2002. The percentage of births out-side marriage now stands at justover 31%, that is, almost one-third ofbirths, compared with just over one-quarter (25.3%) in 1996.

Despite these immense socialchanges, the marital family remainsthe only officially recognised unit inIrish law. In the 1937 Constitution,the family is recognised in Art. 41 asthe ‘natural primary and fundamentalunit group of society.’ But this hasbeen interpreted to mean the familybased on marriage only. Single par-ent families and co-habiting same-sex or heterosexual couples areexcluded from this definition.

Ultimately, cohabiting couples con-tinue to be treated as strangers inthe eyes of the law – their citizen-ship, property and inheritance rights,tax status or medical records, forexample, do not reflect their true lifesituation. For same-sex couples the

discrimination runs even deeper,where adoptive rights or visitingrights are disregarded and where,critically, there is no option to changetheir status from ‘single’ to ‘married’.The option is always open to hetero-sexual couples.

This constitutional discrimination hasbeen reinforced with the recommen-dations of the All-Party OireachtasCommittee on the Constitution. It tookthe view4 that an amendment toextend the definition of the familywould “cause deep and long-lastingdivision.” Instead, the Committee pro-posed to deal with the diversity offamily forms through a number ofother constitutional changes and leg-islative proposals, including, critically,civil partnership or a presumptivescheme for cohabiting heterosexualcouples and civil partnership legisla-tion for same-sex couples.

Contrary to this view, however, theOntario Court of Appeals in the land-

mark case Halpern v Canada5,6

replied to an intervener organisation’s cont’d overleaf

The Case for Legal Recognition of Same-Sex Marriage in Ireland


Dr Katharine Zappone (left) and Dr Ann Louise Gilligan, pictured atthe Summer Ball held to raise funds for their case on 7 June 2006.

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argument that civil marriage required a constitutionalamendment by stating:

the … constitutional amendment argument is withoutmerit for two reasons. First, whether same-sex cou-ples can marry is a matter of capacity. There can beno issue, nor was the contrary argued before us thatParliament has authority to make laws regarding thecapacity to marry … Second, to freeze the definitionof marriage to whatever meaning it had in 1867 iscontrary to this country’s jurisprudence of progres-sive constitutional interpretation.

Ireland’s 1937 interpretation of the family could also beconsidered out of step with today’s reality.

While civil partnership might allow same sex couples abroad range of marriage-like privileges, it does not conferequality of status and equality of rights on all Irish citi-zens. As outlined in the brief of the amici curiae pre-pared for the Massachusetts Supreme Judicial Court:7

A civil union is not the same as civil marriage, just asthe United Kingdom’s granting the vote to women in1918, but only at the age of 30, was not the same asthe existing right of men to vote at the age of 21.

The only way the State can promote and protect therights and responsibilities of all its citizens in financial,familial and societal terms is to institute a mechanism fora partnership of full equivalence to marriage, that is, ‘civilmarriage’.

Notes1 Bunreacht na hÉireann (1937) Articles 40.1, 40.3.1,

40.3.2., 41.1, 41.3.1, and 43.2 European Convention for the Protection of Human

Rights and Fundamental Freedoms (signed 4 November1950, entered into force 3 September 1953) 213 UNTS221 ETS 5, Articles 8, 12 and 14.

3 Tax Strategy Report 03/19.4 All Party Oireachtas Committee on the Constitution 10th

Progress Report on the Family (January 2006)5 Halpern v Canada [2003] OJ No 22686 In this case, the Ontario Court of Appeal found that the

common law definition of marriage, which defined mar-riage as between one man and one woman violated theCanadian Charter of Rights and Freedoms.

7 This brief was prepared by 15 human rights organisa-tions and 21 law professors.

The Case for Legal Recognition of Same-Sex Marriage in Ireland

(continued from page 3)

Throughout May and June FLAC organised threeseminars and a roundtable discussion on PublicInterest Law and Litigation in Ireland (PILL). The

events were a follow-up to the conference on PILL inOctober 2005 and were intended to provoke discussionaround the topic as well as invite contributions fromlawyers, NGOs and activists.

The first seminar was entitled Procedural Obstacles toPILL and was held on 12 May at the Royal Dublin Hotel.This seminar identified existing obstacles and suggestedways of overcoming them. Barrister Colm MacEochaidhspoke about public interest challenges brought through thecourts by way of judicial review proceedings to challengedecisions of the state or its agencies. He identified the twomajor barriers to public interest law and litigation as theapplicant’s locus standi and the likelihood of costs beingawarded against the litigant.

Brian Kennelly, an Irish barrister practising in the UK, alsospoke about the formidable barrier that costs present to thepublic interest litigant, where the ‘loser’ in a case may beresponsible for the legal costs of the ‘winner’. He identifiedthe emergence of protective costs orders in the UK, whichimpose a cap on costs, as a method of combating this bar-rier to bringing a public interest case.

Raymond Byrne, Director of Research at the Law ReformCommission, discussed the Commission’s recent report onMulti-Party Litigation, which had examined, among otherthings, how best to deal with cases where common areasof interest were identified between many litigants. TheCommission recommended that class actions, whereinapplicants can ‘opt-in’ to an action and share costs, beadded as a mechanism to further public interest law and lit-igation in the Irish courts.

The next seminar dealt with How Public Interest Law andLitigation can address the needs of NGOs and tookplace at the Royal Dublin on 31 May. This looked at theexperience of some NGOs who work with vulnerable anddisadvantaged groups in using PILL. Claire Hamilton BLtalked about the work of the Irish Penal Reform Trust onlaw reform and public interest litigation. The IPRT recentlycommenced a legal challenge to the State on its failure touphold its constitutional obligation to provide psychiatrictreatment to prisoners in Dublin’s Mountjoy Prison.

Conrad Haley travelled from the UK to speak about hisorganisation, the Public Law Project. PLP provides aresource for those for whom access to law is most difficultas well as for organisations working with and for such indi-viduals. He stressed the role of strategic and campaigning

For more information on how you can

support the KAL Case, visit the website at

www.kalcase.org

series on Public Interest Law

Brian Kennelly BL (left) and Colm MacEochaidh BL who spokeon obstacles to PILL during the first seminar on 12 May

Attendees at the second seminar on how NGOs can use PILL in their work, Royal Dublin Hotel, 31 May

Claire Hamilton, Chair of the Irish Penal Reform Trust, addressing the second seminar on 31 May

test cases and the importance of protective costs orders.

Deirdre Carroll of Inclusion Ireland described the changingface of the disability movement in Ireland from a medical/charity-based model to a human rights-based approach,noting the publication of the report of the Commission ofthe Status of People with Disabilities in 1996. Deirdre gaveexamples of injustices that can happen when there is alack of legislative protection in place and no inspectorate.

Structures for Public Interest Law and Litigation inIreland was the title of the third seminar, which took placeon 16 June in Croke Park. The seminar focused on struc-tures, resources and supports facilitating public interestlaw in other jurisdictions and considered how such struc-tures might be adapted for use in Ireland.

Deputy Director of the Law Centre Northern Ireland MauraMcCallion described the LCNI, which provides a ‘second-tier’ service by representing and advising on cases identi-fied by organisations dealing with the public and requiringspecialist knowledge. It works in five areas: social security,immigration, community care, mental health and employ-ment and operates a strategic litigation policy.

Dr Joshua Castellino of the Irish Centre for Human Rights,Galway, spoke about remedies which human rights lawcould offer to protect vulnerable groups. Drawing on expe-rience in India, he noted that public interest litigation is aneffective vehicle for active societies. He concluded that theproblem with trying to solve the issues of equality usingpolitics is that there is an uneven access to politics and thatprotection can sometimes be more easily sought from thecourts as regards economic, social and cultural rights.

Professor Andrea Durbach of the University of New SouthWales listed the advantages of PILL identified in Australia,including the capacity to develop, clarify and reform the lawand practice and the acceptance by the court of publicinterest law procedures such as amicus curiae. She alsospoke about organisation she helped found, the PublicInterest Law Clearing House. Owned by law firms, PILCHfacilitates the representation of clients in public interest lawcases.

Irish solicitor John Costello discussed the need to educateyoung lawyers and law students in the philosophy of lawand to consider their obligations to public service. Hereminded those present that there were many ways toadvance the public interest other than litigation and thatalternative dispute resolution should be promoted. Henoted initiatives worth examining, such as a formal probono charity.




The series of seminars held inMay and June (see pages 4and 5) culminated in the

Roundtable discussion on PublicInterest Law and Litigation in Irelandon 30 June at the Royal HospitalKilmainham. It provided an opportu-nity for delegates to contribute theirideas around PILL and help in theformulation of a PILL strategy inIreland. The event was well attendedand attracted a wide variety of atten-dees from both the NGO and legalcommunities.

The morning session of the eventshowcased a number of speakersproviding examples of PILL in otherjurisdictions, as well as strategies forimplementing PILL in Ireland. Theafternoon session featured fourroundtable discussions of variousaspects of PILL.

South African lawyer and filmmakerOdette Geldenhuys spoke on thehistory of public interest law in SouthAfrica in both the apartheid and post-apartheid regimes. She also spokeabout the gravitation toward probono work in South Africa and thepilot clearing house (probono.org.za)that she is involved in setting up inJohannesburg.

Professor Andrea Durbach recalled

her experience as a public interestlawyer, both in South Africa, whereshe used public interest law to chipaway at the apartheid state, and laterin Australia. She spoke of Australia’senthusiasm for human rights, socialwelfare and other issues in the early1990s when she arrived there in con-trast with the current administration’shostility to such issues. She said it isthe duty of lawyers to act as “both asword and a shield” when working inthe public interest.

Dave Ellis of Community LegalResource then presented a prelimi-nary position paper on a strategy forPublic Interest Law in Ireland. It callsfor an independent, transparentprocess focused on the four strandsof law reform, legal education, com-munity legal education and publicinterest litigation. The structuresneed to use both existing and newresources effectively and be sustain-able, accountable and flexible.

Director of the Center for Law in thePublic Interest Robert Garcia spokeabout his experiences with the UrbanPark Movement in Los Angeles. Hespoke of a major victory in theCornfield Case Study, which pre-served a 32-acre green space indowntown Los Angeles, a city whichis notoriously ‘park-poor’. He said

that CLIPI’s successes depended onmultiple strategies, including com-munity empowerment and coalition-building, strategic media campaign-ing, multidisciplinary research andanalysis and legal and policy advo-cacy outside the courts. Litigationwas a last resort.

After the speakers’ presentations,delegates participated in one of fourworkshops: PILL & Education, PILL& Law Reform, PILL & Litigation orPILL & Empowering Communities.

Professor Gerry Whyte of TrinityCollege Law School chaired theworkshop on PILL and Education.The seminar considered four mainissues: the role of universities, therole of the professional law schools,clinical legal education, and commu-nity legal education. Points dis-cussed included the Law Society’sintroduction of a course in PILL to itstraining programme, the progress ofthe clinical legal programme in UCCand the need to highlight public inter-est law in the university sector.

The workshop on PILL and LawReform was chaired by Davin Rocheof Comhairle. The participants con-sidered the different contexts of lawreform, such as constitutionalreform, technical legislative reform,


Speakers at the PILL Roundtable Prof AndreaDurbach (left) and Odette Geldenhuys

FLAC Senior Policy Researcher Paul Joyce (left) withFidelma Joyce, Combat Poverty Agency Policy LiaisonOfficer & Anne Colley, Chairperson, Legal Aid Board

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Roundtable on Public Interest


and the challenges of implementingsuch changes. Additionally, empha-sis fell on the organisations’ need forexpert resource people around aPILL strategy, specialising in theareas of legal and campaigningresources.

Catherine Cosgrave of the ImmigrantCouncil of Ireland chaired the work-shop on PILL and Litigation. Thegroup highlighted the Bar Council’sVoluntary Assistance Scheme for theNGO community. The barristersadopt a three-pronged approachthrough litigation, advocacy and

developing relationships with theNGO community to become aware ofpertinent issues. Other topics dis-cussed included the current LegalAid framework and the issues ofcosts and time.

The final discussion centred on PILLand Empowering Communities.Chair Judy Walsh of UCD’s EqualityStudies Centre identified the keythemes as being a lack of legalknowledge and training among theactivists and organisations.Additionally, there was the idea thatlegal expertise tended to be focused

in Dublin, as is legal training. Thedesire to make education moreaccessible, perhaps through dis-tance education, was raised.Additionally, the group discussed thefragmentation of government services in public interest areas.

8 If you are interested in PILLissues in Ireland and wish tobe kept informed about newsand events, sign up to thePILL Network by e-mailing usat [email protected]


Law refocuses agenda for change

Members of Community Legal Resource picturedfrom left: Dave Ellis, Orlagh O’Farrell and

Roisin Webb BL

Participants at the Roundtable in the Great Hall,Royal Hospital Kilmainham

Event speakers (L-R): Robert Garcia of CLIPI, SouthAfrican lawyer Odette Geldenhuys, Dave Ellis of CLR,

Prof Andrea Durbach & Chair, Roger Smith of JUSTICE

FLAC Director General Noeline Blackwell (left) withLaw Society President Michael Irvine, Jean Pierre

Eyanga of Integrating Ireland and Prof Andrea Durbach


Cautious welcome for proposed abolition of

Refugee Appeals Tribunal


Recent reports on the intro-duction of the proposedImmigration, Residence and

Protection Bill suggest that onereform it will introduce is the abo-lition of the Refugee AppealsTribunal. The RAT has been thesubject of harsh criticism, particu-larly regarding its lack of trans-parency, failure to publish deci-sions and concerns over the vary-ing recognition rates of individualTribunal members. Arguably,however, a number of recentreforms have resulted in animprovement in the Tribunal’sfunctioning.

Of particular controversy in recentyears was the RAT’s refusal to pub-lish decisions. Protecting the privacyof asylum seekers, who may havecome from particularly dangerous andunstable conditions, was the overrid-ing reason behind this policy. Those infavour of publication argued that itwould allow for greater transparencyin the decision-making process. Themeasure resulted in obvious difficul-ties, for example, a lack of awarenessamong legal practitioners of how asy-lum law was applied in Ireland, as wellas a lack of consistency in theapproach of different Tribunal mem-bers to certain issues before them.On this latter issue, those arguing infavour of publication pointed to seri-ous anomalies, such as the lack ofconsistent interpretation amongmembers of common concepts, withan objective assessment often beingsubstituted with the member’s ownsubjective view.

Publication, it was argued, wouldalso bring greater transparencyregarding the significant divergencein recognition rates (or rates of grant-ing asylum) of individual members.Consistently low recognition rates bycertain members of the Tribunalhave been a matter of concern, par-ticularly to those working within thesystem, such as solicitors from theRefugee Legal Service. The growingnumbers of applicants seeking judi-cial review has been attributed inpart to a reluctance on the part ofsolicitors to proceed with hearings ondiscovering that particular Tribunalmembers will be hearing the appeal.Instead of seeking an adjournment,a common tactic used by lawyers butnot possible when appealing to theRAT, solicitors may often decide thatthe appeal is a ‘hopeless case’, andwill seek to issue judicial review pro-ceedings at the earliest opportunity.

The well publicised institution of judi-cial review proceedings against oneparticular member, JamesNicholson, on the basis of bias,stemmed from a concern amonglawyers that he had granted asylumon two occasions out of a total ofmore than 400 hearings. This esti-mate however, was based on a sur-vey of solicitors from the RefugeeLegal Service following a refusal bythe RAT to accede to a request topublish statistics on decisions byNicholson.

A recent decision of the SupremeCourt however, has helped alleviatethe lack of transparency. It found that

an obligation exists on the RAT toprovide appellants with access to allrelevant previous decisions. Thishas gone some way to improving theRAT’s functioning.

According to reports on the new Bill’sprovisions, the RAT is to be replacedby a one-stop system which will con-sider both asylum and humanitarianleave to remain applications.Arguably, such an approach is to bewelcomed. Significant improve-ments in the asylum system over thepast few years have not beenmatched by the ‘leave to remain’ pro-cedure. Considered as a form ofsubsidiary protection, leave toremain is granted in circumstanceswhere an applicant does not fit with-in the strict definition of ‘refugee’, butwhere other compelling, oftenhumanitarian reasons may exist forallowing her/him to remain. Once anapplication for asylum has beenunsuccessful, the applicant will besent a letter from the Minister notify-ing him/her of the intention to deport,but which gives the applicant anoption to apply for leave to remain,setting out the reasons why he/sheshould not be deported.

Low asylum recognition rates by theRAT result in a significant proportionof asylum seekers ultimately makingan application for leave to remain.However, the process contains manyinadequacies. Firstly, it is entirelydiscretionary on the part of theJustice Minister whether or not togrant an application. While the fac-tors considered when making a deci-sion are outlined under section 3 of



the Immigration Act 1999 and includematters such as the age of the per-son and his/her duration of residencein the State as well as family anddomestic circumstances, an appli-cant is given no information on whathas been taken into account in final-ly deciding on the application. In thisregard, the system lacks any ele-ment of transparency.

Of particular practical concern toapplicants is the length of time whichit can take for an application to beprocessed, currently averagingbetween three and four years. Thispresents huge difficulties for theapplicant, who is unable to work,study or contribute to society in anymeaningful way during this time.He/she is forced to live in a state oflimbo for a considerable period, withno guarantee that permission toremain will ultimately be granted.Arguably, the State loses out also, as

it is necessary to maintain an appli-cant for a number of years, howevermeagrely, draining resources whichcould be used elsewhere.

Thus the introduction of a ‘one-stop’system which will consider both asy-lum and subsidiary protection is awelcome reform. The lack of juris-diction on the part of the RAT to adju-dicate on leave to remain issues hasperhaps hampered its effectiveness.In a recent decision by the RAT, theTribunal member found that whilethe applicant did not fit within theasylum definition, he did have astrong case for leave to remain. Themember’s lack of jurisdiction to grantthis protection, however, resulted inthe applicant being forced to submita separate application for leave toremain and to endure the substantialwaiting period which this entails, withno guarantee that the applicationwould ultimately be granted.

Recent reforms have undoubtedlyseen an improvement in the func-tioning of the RAT, particularly inrelation to increased transparency.However, its proposed abolition andreplacement with a decision-makingsystem which considers not just asy-lum, but also subsidiary protection, isto be welcomed. The measurerecognises an obligation to considernot just issues of asylum, but also ofsubsidiary protection in a more trans-parent and effective way.

While this may not be the overridingmotivation behind the introduction ofthe new system, it will be a welcomeconsequence of it, provided that it ismore transparent; there are clear cri-teria for granting leave to remain;and the new Tribunal sets out clearlythe reasons for its decisions. It willbe important as well that the newbody is clearly independent and isseen to be so.

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The William Sampson Comparative Public Interest Law Fellowship is award-ed annually to law students from the University of Washington, Seattle. Itgives them the opportunity to come to Ireland to work with FLAC and otherorganisations on public interest law issues. This year's recipients were (fromleft) Elisabeth Ahlquist (who was placed with the Irish Centre for HumanRights, NUI Galway), Rebecca Huffman (Northside Community LawCentre), Cecilia Boudreau (FLAC); Patrice Kent (Law Centre NI) and JillMonnin (Irish Centre for Human Rights, NUI Galway).


While he is now known inter-nationally and in his nativeIndia as a public interest

lawyer and human rights activist,Colin Gonsalves actually started hisworking life with a degree in technolo-gy. He soon concluded, however, thathe needed legal training to accom-plish the work that he thought impor-tant to achieve social justice. Thus hebegan night studies which culminatedin his qualification as a lawyer. Todayhe is a widely respected SeniorCounsel of the Indian Supreme Courtand the executive director of theHuman Rights Law Network, anorganisation with a presence in manyIndian states.

Thanks to the good offices of the IrishCentre for Human Rights at NUIGalway and Dr Joshua Castellino inparticular, FLAC was able to benefitfrom Colin Gonsalves’ time when hecame to Ireland to speak to studentsfrom the Masters Programme inHuman Rights at the Centre recently.As a result, Colin spoke at two meet-ings in Dublin where he addressedissues about the use of law in the pub-lic interest, focusing on the use of lawin the community and the concept ofstrategic litigation. The meetings alsogave those present an opportunity tocomment on the study being under-taken currently by Community LegalResource on the development of pub-lic interest law and litigation in Ireland.

The Human Rights Law Network ofIndia started in 1989 as an informalgroup of lawyers and social activistswith Colin Gonsalves as a core mem-ber. At the start, the network providedday-to-day legal aid for people livingin poverty. It worked in an environ-ment where NGOs were teachingrights but ‘access to justice’ work,where practical results were obtainedfrom the legal system, was hardlyever carried out. Before long,Gonsalves and his colleagues con-cluded that legal aid on its own, whileessential, did not create sufficientimpact on society as a whole. So

Renowned Indian human rights


Colin Gonsalves, Senior Advocate of the Indian Supreme Court speaking in the RoyalDublin Hotel, with FLAC Director General Noeline Blackwell in the background

Olive Moore of Amnesty International Irish Section during the Q & A sessionwith Colin Gonsalves and CLR in the Royal Dublin Hotel

Pictured L to R: Moya de Paor, Northside Community Law Centre; CatherineHickey, FLAC; Ercus Stewart SC; Ritika Vaderaa; and Colin Gonsalves

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1111F L A C N E W S l J U N E - S E P T E M B E R 2 0 0 6

The development of public interest lawin India can be traced to events arisingduring the mid-1970s, when a politicalscandal resulted in the declaration of astate of National emergency and thesubsequent suspension of all funda-mental rights. The failure of theSupreme Court to confirm the illegalityof suspending the right to habeas cor-pus resulted in a loss of faith by amajority of the people in the efficacy ofthe court. The early 1980s saw thedevelopment of public interest law, asa method used by the court in attempt-ing to restore confidence in its func-tioning.

Access to Justice:In considering methods of improvingaccess to the courts for the poor andilliterate, some novel reforms wereintroduced, many through the actionsof the HRLN, including:

o An expansion of the definition oflocus standi: any person maytake a case on behalf of the popu-lation, in the public interest;

o The process of taking a casewas eased and simplified: anapplicant is not required to gatherand submit substantial evidence.Instead, this has become thecourt’s responsibility, assisted byappointed Commissioners;

o Expansion of epistolary jurisdic-tion: an individual can simply sub-mit a postcard to the Court alleginga complaint and this may be treat-ed as a public interest petition;

o Innovative interpretation of inter-national law: an International con-vention which increases rights tothe people need not be be trans-posed in order for its provisions tobe relied upon. However, any con-vention which reduces or takesaway fundamental rights must betransposed into national law.

SOME PILL CASES IN INDIAN COURTS

Refugee rightsIndia is not a signatory to the 1951Convention Relating to the Status of

Refugees and there is no reference torefugees under the Constitution.However, the right to life is recognisedunder the Constitution and the courtshave extended this right to any individ-ual on the territory of India. In this way,as asylum seekers are protectedunder the Constitution, they cannot bereturned to their country of origin underthe principle of non-refoulement.

Protection for women against sexu-al harassmentNo legislation has been enacted whichprotects women against sexualharassment. However, when consider-ing the issue, the Supreme Courtlooked to the provisions of CEDAWwhich provide that women cannot bediscriminated against. By expansion,this was held to include sexual harass-ment in the workplace. The SupremeCourt then drew up guidelines againstsexual harassment using Art. 21.

Right to foodDue to widespread poverty in India,death by starvation is common. In acase before the Supreme Court, it wassubmitted that an obligation exists onGovernment to feed people. The gov-ernment argued that it had insufficientresources to feed everyone. In a land-mark decision, the court rejected thisreasoning, holding that “when it comesto an enforcement of fundamentalrights, we will never entertain an argu-ment that the government has nofunds”. Following orders of the court anumber of schemes were introduced,including the midday meal and thework for food programmes.

Housing rightsHousing rights are not contained in theConstitution but the Supreme Courthas incorporated them as part of theright to life.

Gay rightsProgress has been made following theestablishment of the first legal journalon Gay and Lesbian rights. A constitu-tional battle is currently taking place forthe repeal of article 377, which outlaws“sexual activity which is against thenatural order”.

THE DEVELOPMENT OF PUBLIC INTEREST LAW IN INDIA


lawyer & activist visits Dublin

For more information, see thewebsite of the Human Rights Law

Network (www.hrln.org) and HRLN’s journal, Combat Law

(www.combatlaw.org)

while the network continues to pro-vide pro bono legal services to thosewith little or no access to the justicesystem, it also undertakes publicinterest litigation, advocacy, legalawareness programmes and investi-gations into violations.

Winner of the 2004 InternationalHuman Rights Award of the AmericanBar Association in public recognitionof his contribution to the area ofhuman rights, Gonsalves has pio-neered the use of public interest lawin the Indian Supreme Court and haslitigated across the spectrum ofhuman rights (see box on the right).Some of his cases are particularlyseminal. In response to a petition filedby the Human Rights Law Network in2001 on behalf of the People’s Unionfor Civil Liberties, the Supreme Courtin New Delhi has made a number oforders which have resulted in courtorders to implement various foodsecurity schemes including the rightof children to a lunchtime meal, aspart of the right to life. This complex lit-igation continues and is carried intovarious strands of Indian law andcampaigns by many groups.

The network values its social activistsas highly as its lawyers and collabo-rates with social movements, humanrights organisations and grass-rootsdevelopment groups to enforce therights of children, dalits, people withdisabilities, farmers, HIV positive peo-ple, the homeless, indigenous peo-ples, prisoners, refugees, religiousand sexual minorities, women, andworkers, among others.

Details of Gonsalves’ talks forFLAC were circulated through thePublic Interest Law Network. Forinformation on future events onpublic interest law, please e-mailthe Network at [email protected]

1122 F L A C N E W S l J U N E - S E P T E M B E R 2 0 0 6


Child benefit and child rights

When Ireland’s record is

examined by the UN

Committee on the Rights

of the Child in Geneva, in September

2006, the Committee will scrutinise

how the Irish State has respected

and ensured the human rights of

each child within Ireland without dis-

crimination. Within this examination,

the fact that some children born and

living in Ireland do not receive Child

Benefit will come up for discussion.

Because of the imposition of the so-

called habitual residence condition

(HRC), the social welfare benefits to

which children are entitled are not

applied equally to all children, but

depend on their parents’ residency

status.

According to a report prepared by

the Children’s Rights Alliance in

advance of the UN Committee’s

examination:

the denial of Child Benefit to asy-

lum-seeker families has reduced

their weekly income by at least

40%, and possibly as much as

70%, depending on the number

of children and whether the fam-

ily unit includes one or two par-

ents. As a result, families have a

wholly inadequate income to

cover basic day-to-day expens-

es not met under the direct pro-

vision system (basic food and

accommodation). The only

option open to families is to

apply under the Supplementary

Welfare Allowance system for

‘exceptional needs payments’ to

cover necessities such as cloth-

ing, over-the-counter medicines

and supplementary food. It is at

the discretion of the Community

Welfare Officer whether assis-

tance will be granted.

In 1996, when Ireland made its first

report to the UN Committee on the

Rights of the Child, the State was

able to say that “Child Benefit is uni-

versal and generally paid to the

mother or primary carer”. In its cur-

rent report, the Irish Government

says that “current government policy

is that Child Benefit is the main

instrument through which support is

provided to parents with children.

One of the main benefits of this

approach is that all recipients are

treated equally”. It goes on to qualify

that general statement by the state-

ment that “to qualify for Child Benefit,

the applicant must satisfy a habitual

residency condition.”

On the page oppposite readers will

find a guide to the circumstances in

which Child Benefit will or will not be

paid following the introduction of the

HRC in May 2004. Since its intro-

duction, there has been consider-

able confusion and uncertainty about

who should or should not receive

child benefit. This confusion arose in

part from the complexity of European

Union (EU) law underlying the condi-

tion, the way that this law was

applied unevenly by deciding offi-

cers, gaps in government informa-

tion provision and the fact that the

scheme had to be substantially

changed because of EU

Commission unease with the initial

application of the scheme to workers

covered by EU law.

With other concerned organisations,

FLAC has been working to clarify the

law and practice on HRC since it was

introduced. FLAC expects that its

new Guide on Child Benefit will clar-

ify how and when this condition

applies to Child Benefit. It will also

highlight the fact that a number of

children living in the State can be

without the benefit of this payment,

sometimes for the many years that it

takes to determine an asylum claim

or for the Department of Justice,

Equality & Law Reform to decide on

an application to remain in the State.

In launching the Combat Poverty

Agency annual report in August

2006, Minister Séamus Brennan

said that “poverty, particularly child

poverty, has no place in twenty-first

century Ireland.” Child benefit is

recognised by his Department and

his Government as one of the steps

which will guard against child pover-

ty. The application of the Condition

has introduced an inequality among

children residing in the State and

increased their risk of poverty.

There is a general obligation

expressed in Article 2 of the UN

Convention on the Rights of the

Child to respect and ensure the

rights of children (including the right

to benefit from social security under

article 26 of the Convention) without

discrimination, inter alia, on grounds

of nationality. In addition, there are

obligations on the State to guaran-

tee that children who are refugees or

asylum seekers shall “receive

appropriate protection and humani-

tarian assistance” to ensure the real-

isation of their rights under the

Convention and other international

human rights instruments. Even

though that Convention has not

been incorporated into the domestic

law of the State, the State still car-

ries the obligation to comply with its

terms and to ensure that – in the

words of the Convention – the rights

of the child are the “primary consid-

eration”. Ireland’s current system

excludes most, but not all children of

asylum seekers from Child Benefit.

The equal treatment of children, the

removal of economic discrimination

between them and the recognition of

the need to put the best interests of

the child at the heart of government

policy by restoring Child Benefit as a

universal payment would be a useful

step in genuinely addressing child

poverty and protecting child rights.



The Habitual Residence

Condition was introduced on 1

May 2004 as a qualifying require-

ment for all social assistance pay-

ments and Child Benefit. It is pre-

sumed until the contrary is shown

that an applicant is not habitually

resident if they are living in the

State or the common travel area

for less than two years. According

to the DSFA, the onus is always

on the applicant to provide suffi-

cient evidence that they are habit-

ually resident in the State. In

determining whether a person is

habitually resident, five factors set

down by the European Court of

Justice are also to be considered:

length and continuity of residence

in Ireland; length and purpose of

absence from Ireland; nature and

pattern of the employment; appli-

cant's main centre of interest and

future intentions.

(See www.welfare.ie/foi/habres.html#G)

The Common Travel Area con-

sists of Ireland, the United

Kingdom of Great Britain and

Northern Ireland, the Channel

Islands and the Isle of Man.

European Economic Area (EEA)

countries are Austria, Belgium,

Denmark, Finland, France,

Germany, Greece, Iceland,

Ireland, Italy, Liechtenstein,

Luxembourg, Netherlands,

Norway, Portugal, Spain,

Sweden, UK, Republic of Cyprus

(Cyprus South), Czech Republic,

Estonia, Hungary, Latvia,

Lithuania, Malta, Poland, Slovak

Republic and Slovenia. Although

Switzerland is not a member of

the EEA, the EU Agreement

applies.

Non-EEA nationals also known

as “third country nationals”,

require a work permit to take up

employment in Ireland.

GLOSSARY AND NOTES

8Also: See article on page 2 on clarification ofchild benefit rules

Child Benefit & Habitual Residence Condition

NON-EEA NATIONALS

8 This payment is available to all non-EEA nationalswho are employed or self-employed in Ireland andare subject to Irish PRSI. They are required to sat-isfy the HRC, unless they have resided and workedin another EEA country.

8 Non-EEA national workers will have to be residentin the State with their children to get Child Benefit.

8 If workers lose their jobs, they will be paid the benefit for the duration of the work permit.

8 If a child’s father has satisfied HRC requirements,but its mother has not, the payment will be awardedto the mother “based on the family unit concept”.

8 According to the Department of Social and FamilyAffairs, refugees and persons granted leave toremain in the State as the parents of Irish-born chil-dren will satisfy the HRC provided that they havelived continuously in the State since being grantedrefugee status or leave to remain and therefore canavail of Child Benefit from the time of recognition orpermission to remain. They will be required to sub-mit documentation issued by the Department ofJustice Equality and Law Reform and a certificate ofregistration from the Garda National ImmigrationBureau. If they have not lived continuously in theState since recognised as refugees or given orleave to remain, their claims will be decided havingregard to the five factors set down by the EuropeanCourt of Justice relating to centre of interest.

8 The legal guardian of an Irish-born child with Irishcitizenship whose parents have been deported canmake a claim on behalf of the child, but the claimantmust him/herself satisfy the HRC even though thechild is a citizen.

8 Asylum seekers and persons seeking leave toremain in the State on humanitarian grounds arenot entitled to Child Benefit.

8 Asylum seekers who were recipients of ChildBenefit before 1 May 2004 and who are stillreceiving the payment are not required to satisfythe HRC in respect of that child or on claims madefor additional children born on or after 1 May 2004.

8 In all cases, applicants are required to provideeither a certificate of registration or other legal doc-umentation as evidence that they are legally resi-dent in Ireland before the payment will be made.

EEA NATIONALS

8 EEA nationals who are employed or self-employedin Ireland and are subject to the PRSI system do nothave to satisfy the HRC and therefore can avail ofchild benefit right after obtaining a job.

8 EEA nationals who were employed but are nowunemployed and in receipt of unemployment benefit do not have to satisfy the HRC for ChildBenefit.

8 The spouse of an EEA worker, where the worker isemployed or self-employed in Ireland and subject tothe PRSI system, can be awarded the payment ofChild Benefit.

8 EEA workers are able to access Child Benefit evenif their children are not resident in the State.

8 EEA nationals who have not worked in Ireland, butare actively looking for work here (“first jobseekers”)cannot access child benefit unless they satisfy theHRC.


1144 F L A C N E W S l J U N E - S E P T E M B E R 2 0 0 6

Focus on FLAC staff:

Catherine Hickey has been working withFLAC since February 2000. She wasExecutive Director for five years working

with FLAC Council to increase resources toenable the organisation deliver on its mission andstrategy. In April 2005 she moved to the new postof Director of Funding and Development whereher current work centres on securing funding forFLAC, project and event management and forwardplanning. Together with the team at FLAC,Catherine organised a conference, ‘Public InterestLaw: the Reality and the Potential’ in October 2005as well as a follow-up series of seminars andRoundtable on Public Interest Law and Litigationin 2006.

Catherine believes that FLAC’s volunteers are a keyand unique resource providing first-stop legal adviceat FLAC centres and delivering one of FLAC’s mainaims: increasing access to justice.

She would like to see civil legal aid being made avail-able in all areas of civil law which can affect people intheir day-to-day lives. Through FLAC centres we meetmany people who have a grievance for which theyneed legal advice and/or representation, but wouldnot have the resources to engage a solicitor, e.g.employment issues, landlord and tenant issues, con-sumer and housing problems and other areas of lawcurrently outside the scope of legal aid provision.

Catherine believes we need to continue campaigningfor equal access to justice for all.

Catherine has a B. Soc. Science Degree and a MBSDegree in Organisational Behaviour and Developmentfrom University College Dublin. She holds a Barrister-at-Law Degree from the Honourable Society of King’sInns and was called to the Bar in 1997.

Catherine has worked in management in the NGOsector for 16 years. She was Director of MuscularDystrophy Ireland from 1990 to 2000. She was aBoard member of the Disability Federation of Irelandfrom 1992 to 2000 serving as Chairperson from 1998to 2000. A founder member of the Center forIndependent Living in 1992, Catherine has beeninvolved in disability rights campaigns for many years.She was also on the Board of Carmichael Centre from1992-1999, serving as Chairperson in 1993-1994.

Catherine is a Director of The Wheel and chairs thesub-group on Membership and Services. She hasbeen active on the Management Committee/Board ofBallymun Community Law Centre since 2000 and iscurrently Vice-Chairperson of the Law Centre.

Catherine believes in the power of NGOs and of thecommunity and voluntary sector to change society.She believes that the sector gives leadership in educating people about their rights and in enablingaccess to the legal system to address rights.

Catherine Hickey,

Director of Funding& Development

1155F L A C N E W S l J U N E - S E P T E M B E R 2 0 0 6


Substantial revision of legal aid means test:A lot done, more to do?

arguably some way short ofmeeting the actual cost ofmany mortgages or privaterentals in Ireland in 2006.

8 The value of the applicant’sfamily home is to be complete-ly disregarded as capital bothfor the purposes of qualifyingfor the service and in terms ofassessing an eligible person’scapital contribution, whether itis the subject matter of thelegal dispute in question ornot. This alteration removesthe anomaly whereby those onlow incomes owning their ownhome outright or with substan-tial equity in it, either failed toqualify for the service or had topay a substantial contributionfor it, as a result of spirallingproperty price inflation.

8 The minimum contribution forlegal advice has gone up from€6 to €10 and the maximumcontribution from €100 to€150. The minimum contribu-tion for legal aid has increasedfrom €35 to €50. The thresh-old for payment of the mini-mum contribution in bothcases has risen from €8,300to €11,500 and this will meanthat a greater number of peo-ple on very low incomes willpay the minimum.

8 The maximum income contri-bution for the service will nowbe €50, plus one-quarter of thedifference between €11,500and disposable income (up tothe new limit of €18,000). Thisis the same formula, albeit withadjusted income limits, thatapplied in the previous regula-tions. Conceivably, a person

qualifying on the maximumdisposable income limit of€18,000 may, therefore, haveto make an income contribu-tion of €1675.

8 As well as removing the familyhome from the equation, someadjustments have been madein the thresholds for calculat-ing an eligible person’s capitalcontribution. The exemptedamount has increased from€3200 to €4000. Now 2.5% ofthe difference between €4000and €54,000 must be paid (asopposed to 2.5% of the differ-ence between €3200 and€79,500). Any amount over€54,000 must be paid at therate of 5% (as opposed to 10%of the amount over €79,500).

Any person with disposablecapital of over €320,000 willnot qualify and this figure isunchanged, although the valueof the family home is no longerincluded. Normal householdgoods or the value of any toolsof the applicant’s trade will notbe assessed as capitalresources. Finally, it appearsthat the particular rules ofassessment in relation to farm-land have been removed andthat it will now be treated thesame as other capitalresources. It is possible thatthis may impact adversely onfarmers in relation to applica-tions and contributions.

In terms of omissions, it is notablethat amounts for routine costs suchas travel to and from work expens-es and the cost of servicing creditagreements have not beenrestored as allowances for the pur-pose of the means test. This is dis-

appointing, given the large dis-tances which many people have totravel to and from work and the pre-dominance of credit in Ireland atpresent.

It must also be stressed that thenew regulations concentrate intheir entirety on the means test anddo not address the exclusion ofmany areas of law from the scopeof the scheme which remains family law-dominated, despite theexistence of substantial unmetlegal need in other areas.

In his press release, MinisterMcDowell’s claims the revised reg-ulations ‘are further evidence of mycommitment to the delivery of anaccessible and fair civil legal aidsystem’ and that ‘I have increasedfunding for the scheme in recentyears and the Board has madeexcellent use of these resources inorder to tackle waiting lists’. Nomention is made of theO’Donoghue case in the High Courtin 2004, which established a rightto timely legal aid and gave rise tothe necessity to reduce the waitinglists in the first place. Nevertheless,credit is due for the resources thatwere ultimately provided to complywith suggested waiting time forlegal aid outlined in that decision.However, there is a conspicuousabsence of a commitment in theMinister’s press release guarantee-ing further resources to meet theincreased number of applicantswho will now qualify for civil legalaid under the revised means test.

It is imperative that the waitinglists, now at ‘manageable’ levels,do not become the sacrificiallamb for a more realistic assess-ment of means.

(from front page)



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