The High Court held that the parents of a child who was awaiting a decision on his international protection status did not have the right to work in the State while the application was being processed.
The applicants for judicial review are a family consisting of a father, mother, and a child under the age of two years. The parents are nationals of a non-EU State. The parents had each previously applied for international protection. They had each been permitted to access the labour market during the latter part of the currency of their applications. The parents’ applications for international protection were ultimately unsuccessful. For a period of some two and a half years thereafter, the parents’ immigration status in the Irish State was precarious and they were subject to (unexecuted) deportation orders. The parents’ immigration status has since been regularised: on 30 September 2022, the parents were both granted so-called “Stamp 4” permissions which allow them to reside and work in the Irish State for a period of three years. These judicial review proceedings concern the period prior to 30 September 2022 during which time the parents were not permitted to work lawfully within the Irish State.
The parents contended that, for part of this period, they should have been permitted to access the labour market by virtue of the fact that their child was awaiting a determination of his own application for international protection. The child was born in April 2021. An application for international protection had been made on his behalf by his mother on 26 July 2021. As of the date these judicial review proceedings were instituted on 4 April 2022, that application had not yet been determined. The child’s application for international protection has since been successful and the Appeals Tribunal, by decision dated 19 January 2023, recommended that a refugee declaration be made in his favour.
While the child’s application for international protection was pending, his father and mother had both applied, in November 2021, to access the labour market on the strength of the child’s application for international protection. They contended that the child, as applicant, was entitled in principle to access the labour market, and that they, qua the child’s parents, were entitled to exercise this right vicariously. The parents’ applications to access the labour market were refused on 23 March 2022. The decisions to refuse these applications are challenged in these judicial review proceedings.
The High Court held that the fundamental difficulty with the claim of the parents’ vicarious right to work was that the infant child did not enjoy a right to work himself. The domestic regulations implementing the Reception Conditions Directive did not alter the general conditions governing employment in the State. The High Court confirmed that the child in question did not have a right to access the labour market. Nothing in the EU Directive changed this aspect of domestic law. As such, the issue of a vicarious right to work was based on the ‘false premise’ that the child enjoyed a right to access the labour market. The Court noted that the conditions of Article 15 of the Directive were personal to the individual applicant for international protection. As such, it made no provision for minor applicants or their parents to access the labour market.
The court then considered whether the parents had the derived right to work in the State based on the legal entitlement of their child to reside in the State while his application was being processed. The court rejected this submission. Mr Justice Simons held that Reception Conditions Directive imposed the obligation on the member state to ensure that material reception conditions (including housing, food, clothing and education) were made available to a minor application. It was expressly provided that member states would ensure that the specific standard of living requirements of “vulnerable persons” was met. The child was a “vulnerable person” and the State was required to implement the provisions of the Directive based on the best interest of the child. The court held that the Directive contained a “comprehensive suite of protections” for minor applicants seeking international protection.
The court held that the Directive envisaged that the obligation to provide for the needs of the child (while an applicant for international protection) lay with the State. Accordingly, the parents could not derive any right to work in order to provide for their child’s needs.