Irish Supreme Court finds absolute prohibition on asylum seekers earning a livelihood unconstitutional

The Supreme Court has found the absolute legislative prohibition on asylum seekers from entering, seeking or being in employment unconstitutional.

The applicant in this case, Burmese national Mr V, had been in the asylum process since 2008 and re-entered it again after a judicial review of a Refugee Appeals Tribunal (RAT) decision in 2013, now known as the International Protection Appeals Tribunal. The applicant, who had been in the asylum system for eight years, claimed that the lengthy time he spent in direct provision and preclusion from engaging in meaningful employment caused him distress. The applicant was offered employment as a chef in 2013 for which his solicitor sought permission for him to reside and work in the State, but was refused. By virtue of section 9 (4) Refugee Act 1996, continued in section 16(3) (b) of the new International Protection Act 2015, people seeking international protection are prohibited from entering into employment.

The case was initially heard jointly in the High Court in 2015. According to McDermott J of the High Court the absolute legislative prohibition on the right to work for those seeking international protection did not breach the right to earn a livelihood under the Constitution, nor did it violate rights codified in the Charter of Fundamental Rights of the European Union or the right to private life under the European Convention on Human Rights. The case was appealed to the Court of Appeal on behalf of Mr V only, where the High Court’s decision was upheld.

In considering the appeal, the Supreme Court focused on the extent to which non-citizens, as humans, could rely on constitutional rights. While acknowledging that non-EU citizens had no automatic right to work in Ireland, the Supreme Court was of the view that asylum seekers lawfully in the State could not be compared to other migrants who might be seeking permission to work in Ireland. According to O’Donnell J, “where there is no temporal limit on the asylum process, the absolute prohibition on the seeking of employment is contrary to the constitutional right to seek employment”.

The Supreme Court further relied on comment of the UN Committee on Economic, Social and Cultural Rights on “The right to work is essential for realizing other human rights and forms an inseparable and inherent part of human dignity. Every individual has the right to be able to work, allowing him/her to live in dignity. The right to work contributes at the same time to the survival of the individual and to that of his/her family, and insofar as work is freely chosen or accepted, to his/her development and recognition within the community.” The Supreme Court concluded that a right to work, at least in the sense of a freedom to work or seek employment, is a part of the human personality that cannot be withheld absolutely from non-citizens. This right, however, does not extend to obligations for provision of work, or require the Government to adopt economic policies to enable full employment. Similarly, it is open to the Government to place limitations on the freedom to work for asylum seekers, such as to defined areas of economy perhaps where there is a demonstrated need. The Court felt in this respect that concerns as to “pull factor” were legitimate.

The Supreme Court adjourned proceedings for six months. The Government has been invited to make submissions on the form of the court order, after which an order will be made declaring the absolute prohibition of asylum seekers from exercising a right to work unconstitutional.

Click here for the Supreme Court judgement in NHV v Minister for Justice & Equality.

Click here for further commentary on the Human Rights in Ireland blog.




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