COHRE Traveller Housing Rights Ireland 2005

Traveller Housing Rights in Ireland Submission to Committee on Elimination of Racial Discrimination Article 5(e)(iii)

January 2005

Contents 1. Introduction ...........................................................................................................................2 2. Forced evictions - ‘Trespass’ legislation............................................................................ 3 3. Forced Evictions - Other Legislation ................................................................................. 4 4. Provision of Traveller-Specific Accommodation .............................................................4 5. Coerced Settlement ............................................................................................................... 5 6. Conclusion..............................................................................................................................6 7. Recommendations................................................................................................................. 6

1. Introduction The Centre on Housing Rights and Evictions (COHRE) is an international nongovernmental organisation mandated to protect and promote housing rights throughout the world. COHRE has special consultative status with the Economic and Social Council of the United Nations (UN).

A fact-finding mission to Ireland was undertaken by COHRE in April 2004 in order to investigate the housing rights of Travellers, an ethnic minority. The mission was motivated by reports of forced evictions and the lack of access to appropriate accommodation for Travellers. After the completion of the mission, we continued to obtain additional information from those interviewed.

On the basis of such information, COHRE believes that the Government of Ireland is in breach of its obligation under Article 5(e)(iii) of the International Convention on the Elimination of All Forms of Racial Discrimination. States parties are obliged: [T]o prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: … (e) Economic, social and cultural rights, in particular: (iii) The right to housing;….’

Further, Irish law permitting forced evictions and the consequent actions of government officials violates a number of other rights set out in Article 1 and Article 5. These include the right to freedom of movement and residence within the border of the State, the right to own property alone as well as in association with others and human rights to work, education and participation in cultural activities.

COHRE sent a letter to the Government of Ireland outlining its concerns and copies to the relevant ministries. While receipt of letter was acknowledged on 12 November 2004, no response has been received.

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2. Forced evictions - ‘Trespass’ legislation In 2002, Ireland introduced Section 24 of the Public Order Act, as amended by the Housing (Miscellaneous Provisions) Act (‘2002’ Act), which criminalised trespass on public and private property. Under the 2002 Act, the Gardaí are empowered in these situations to arrest Traveller families without a warrant if they do not move immediately upon oral request, impound homes of Travellers and imprison residents for a month and impose fines of up to €3,000.

The legislation, in effect, targets Travellers, broadening powers of eviction in an area already regulated by the Housing [Traveller Accommodation] Act, 1998 (the “1998 Act”). The 2002 Act was passed despite clear evidence at the time that there was a lack of sufficient official halting sites for Travellers, which the Government is required to provide under the 1998 Act and previous/preceding its predecessor legislation (as discussed below). The trespass provisions should be seen as indirect discrimination since they have a disproportionate effect on Travellers, thus violating Article 1(1).

This discriminatory effect can be seen in the application of the legislation. Evidence from local groups and testimonies from Travellers indicates that the 2002 Act has been used to target individual families and not the large groups that the legislation was ostensibly meant to address. In the County of Clare, 40 evictions were reported, including those of several families who had been occupying lands for more than a year.

COHRE received testimony from one family that was summarily evicted during the Christmas period despite having stayed on the roadside site for at least seven months The family reported that no alternative site was provided and that the children’s education has been significantly affected.

The precise number of Travellers who have been affected by the law is unknown since the present statistics only cover arrests. Nevertheless, data collected by the Government indicates that by 29 June 2004 there had been 140 official ‘incidents’ – i.e., where a charge was made or summons was issued. Legal proceedings were commenced in 53 cases and convictions were obtained in 27 of them.

However, civil society groups and Traveller residents reported that many families move their vans after receiving verbal warnings by the Gardaí. Therefore, the number of Travellers families evicted under the law is likely to be much higher than 140. The Irish Traveller Movement received reports of over 150 incidents of Travellers being requested to move their vans between July 2002 (the date of the enactment of the law) and October 2003.

The number of evictions recorded – whether official or unofficial - is extremely high considering that the Department of Environment estimates that 700 Traveller families currently live by the roadside, while another 350 are sharing accommodation with relatives to avoid eviction from the roadside. Evictions are severely disruptive to children’s education and have a severe impact on the mental and physical welfare of the Traveller families. Sustainable access to services such as health and social welfare is made exceedingly difficult.

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The trespass law is also problematic since it allows the Gardaí to evict Traveller families from the local municipality where they are waiting to be provided with accommodation

by Local Authorities. The legislation, in effect, rewards Local Authorities who have not complied with their legal obligations under the 1998 Act. It is notable that a small number of Counties in Ireland are not seeking enforcement of the 2002 trespass law, concluding that this would be in conflict with their duty to provide accommodation under the 1998 Act. This indicates the inherent conflict between the two Acts and the jeopardy in which it places the housing rights of Travellers.

Further, while we were assured that direct action under the 2002 Act is only used as a last resort, there appears to be no monitoring of the Gardaí and their exercise of power under this law. Moreover, there is no monitoring as to whether the Local Authorities are making appropriate recommendations to the Gardaí on the use of the law.

3. Forced Evictions - Other Legislation There is also concern that the more nuanced eviction provisions in legislation are being abused. This includes Section 10 of the Housing [Traveller Accommodation] Act, 1998, as amended by Section 32 of the Housing (Miscellaneous) Provision Act, 1992; Section 19 of the Criminal Justice Act, 1994, which was amended by the Housing (Miscellaneous Provisions) Act, 2002 and Section 69 of the Roads Act, 1993.

Under Sections 10(a) and 10(b), an eviction can only proceed if there is an alternative site within 5 miles upon which a Traveller can be appropriately accommodated. Section 10(c), however, does not contain this requirement. This is of significant concern.

Travellers can be evicted without the right to alternative accommodation if they reside within 1 mile of Traveller accommodation and, in the opinion of the housing authority, are causing a nuisance or obstructions or creating a risk to water or other services. In addition to the obvious potential for abuse by the Gardaí of their power under Section 10(c), there is ample evidence that the right to alternative accommodation under Sections 10(a) and (b) is not respected in practice.

A survey by a local NGO found that during the period of August 2001 to August 2002 there were 471 Traveller families who had been served with notices directing them to move (Section 10 notices) without being offered any alternative accommodation.

According to figures obtained under the Freedom of Information Act, there were 452 notices served against Travellers under Section 10, in the year ended 31 May 2003. This is a disturbing number of evictions affecting a significant proportion of the 1,207 Traveller families living by the roadside.

It also troubling that Local Authorities can move families within 24 hours, which effectively denies them the possibility of accessing courts or other dispute resolution mechanism.

4. Provision of Traveller-Specific Accommodation In 1995, the Task Force on the Travelling Community recommended the provision of 3,100 units of additional Traveller accommodation. This was to include 2,200 Traveller-

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specific units of accommodation. The 1998 Act was subsequently enacted in order to ensure provision of Traveller-specific accommodation.

However, implementation of the programme has been minimal, raising the question of whether the Government is taking reasonable steps towards the progressive implementation of the accommodation rights of Travellers. Between the years 2000 and 2003, only 228 new halting sites and 192 new group housing units were made available to Traveller families. Significant progress only appears to have been made in providing standard housing for Travellers, with an increase of 665 units. This disparity of attention suggests a lack of respect for the cultural distinctiveness of the Traveller community.

It was evident from the interviews conducted by COHRE during the fact-finding mission that the principal obstacle was not the lack of financial resources for the Traveller accommodation programmes, but rather the unwillingness of Local Authorities to implement the programmes or counter sustained opposition from non-Traveller communities. The Government has, however, rejected calls for it to intervene to ensure that Local Authorities carry out their obligations and have the necessary legal authority to do so.

The Housing (Traveller Accommodation) Act, 1998 also specifies that provision should be made for the annual patterns of movement of Travellers, yet there have been few developments in this area. COHRE submits that the compulsory inclusion and provision of transient accommodation in every Local Authority Traveller Accommodation Programme would respect the rights of Travellers to maintain their nomadic identity.

5. Coerced Settlement The combination of sustained eviction threats and lack of Traveller-specific accommodation appears to result in many Travellers being unable to pursue a nomadic lifestyle. It was clear that Travellers could more easily and more quickly access standard sedentary housing as opposed to temporary or permanent halting sites or group housing.

There were also reports that some local authorities were not correctly informing Travellers of their rights to Traveller-specific accommodation.

This combination of distinctions, exclusions, restrictions and preferences based on ethnic origin has the effect of nullifying and impairing the recognition, of the distinctive cultural and housing rights of Travellers under Article 1 of CERD. It is notable that the European Court of Human Rights stated: [T]he vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases‌..

To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.1

1

Chapman v. United Kingdom, No. 27138/95, ECHR 2001-I, at paragraph 96.

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6. Conclusion The number of evictions that has taken place, and the racially discriminatory purpose of effect of these evictions, is alarming and evidence obtained on a number of specific cases indicates that ICERD has not been complied with. Likewise, the 2002 trespass amendments are inconsistent with ICERD and it is questionable whether Section 10 of the 1992 Act is fully compliant.

The actions also violate a range of other treaties ratified by Ireland including the European Convention on Human Rights and Fundamental Freedoms; International Covenant on Economic, Social and Cultural Rights – see particularly General Comment No. 7 on Right to Housing: Forced Evictions (1997); International Covenant on Civil and Political Rights; Revised European Social Charter of 1996; and Convention on the Rights of the Child.

7. Recommendations In order to remedy the problems identified above, COHRE respectfully proposes that CERD recommend that the Government of Ireland should take urgent steps to: 1. Declare a moratorium on evictions of Travellers and immediately halt current plans for eviction of Traveller families until safeguards, consistent with international human rights law, are in place.

2. Repeal the trespass provisions - Section 24 of the Public Order Act, as amended by the Housing (Miscellaneous Provisions) Act. 3. Issue clear guidelines to Gardaí and Local Authorities that ensure that any eviction carried out under Housing [Traveller Accommodation] Act, 1998 or other piece of legislation complies with international human rights standards. The guidelines should be monitored and Travellers should be given a system of appeal against breaches of such guidelines. In due course, such safeguards should be contained in legislation.

4. Establish a central government agency with the necessary powers to ensure the timely and effective provision of Traveller-specific accommodation under the Housing [Traveller Accommodation] Act, 1998.

COHRE notes that similar conclusions have recently been reached in a report to be shortly released by the National Traveller Accommodation Consultative Committee (NTACC), a multi-stakeholder body established by statute.2

2

See Kitty Holland, ‘Progress on housing Travellers is uneven, says report’, Irish Times, 8 January 2005.

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Contact: Nathalie Mivelaz UN Coordinator COHRE 83 rue Montbrillant 1202 Geneva Switzerland Tel: + 41.22.734.1028 Fax: + 41.22.733.8336 E. nathalie@cohre.org W. www.cohre.org

Malcolm Langford Senior Legal Office ESC Rights Litigation Programme, COHRE 60 Choriner Strasse Berlin 10435 Germany Tel: + 49 163 820 1133 Fax: + 41.22.733.8336 E. mal.langford@cohre.org W. www.cohre.org/litigation

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