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Supreme Court says that ban on asylum seekers working is unconstitutional

Over the next six months, the Court has invited interested parties to make submissions on the order.

A protest against Direct Provision, unconnected to this court case.
A protest against Direct Provision, unconnected to this court case.
Image: Laura Hutton/Photocall Ireland

THE SUPREME COURT says the ban on asylum seekers seeking employment is unconstitutional – but has adjourned its order for six months to allow time for lawmakers to figure out how best to handle the matter.

The ruling was made today in a case that involved the Minister for Justice and Equality and the Attorney General, the Irish Human Rights and Equality Commission.

The seven-judge panel explained the situation arises because of the “intersection of a number of statutory” provisions. It suggests that by changing some of those, today’s order could be met.

The panel said the matter was “first and foremost” one for the Oireachtas to deal with. Over the next six months, the Court has invited interested parties to make submissions on the order.

Where the law stands

The case was brought by a native of Burma who arrived in Ireland on 16 July, 2008, and applied for refugee status on the following day.

His application was refused and again on appeal by the Refugee Appeals Tribunal in 2009.]That decision was challenged and quashed on judicial review in July 2013.

He then had to re-enter the process, and brought a new application, which resulted in a further refusal which was upheld by the Refugee Appeals Tribunal in November 2013.

That decision was however quashed on consent in February 2014, and the process had to be recommenced.

At that point, the man had been in Direct Provision for almost six years and faced a further significant delay before his application was finalised.

Since his arrival in Ireland, the man has been living in Direct Provision in County Monaghan. In May 2013, he was offered employment in the Direct Provision facility.

While they wait the result of their application for refugee status, applicants are required to live Direct Provision, which is State-provided accommodation, and given an allowance of €19 per week.

In the judgment, Mr Justice Donal O’Donnell explained that under Section 9 of the Refugee Act 1996, a person seeking asylum is entitled to enter the State and remain here while the application for refugee status is processed.

Section 9(4) also provides however, that an applicant shall not seek or enter employment before final determination of his or her application for a declaration.

According to the court, the man “is, or at least appears to be, precluded from taking up that offer of employment from the provisions of s.9(4)”.

The man had applied to the Minister for Justice for permission to take up the offer of employment, but the Minister refused on the grounds that such employment was precluded by s.9(4).

Proceedings

The man then brought these proceedings seeking to challenge that interpretation of s.9(4) and/or to seek a declaration of the incompatibility of s.9(4) with the Charter of the European Union, the European Convention on Human Rights, and the Constitution.

His claim was dismissed by the High Court, but the Court of Appeal by a majority upheld that decision.

Judge Hogan then dismissed the claims in EU law and in relation to the European Convention on Human Rights, but said that he would have found that the man, although a non-citizen, was entitled to rely on the unenumerated right to work protected by Article 40.3 of the Constitution.

He ruled that whilst the State had very considerable latitude in this regard, the blanket ban on employment contained in s.9(4) was disproportionate to any legitimate State interest, and accordingly invalid, explained Mr Justice O’Donnell.

Since these proceedings began, the 1996 Act, including s.9(4) has been repealed by s.6 of the International Protection Act 2015 subject to certain transitory provisions contained in Part 11 of that Act, which continued the application of the 1996 Act to certain cases in being.

However s.16(3)(b) of the 2015 Act contains an almost identical prohibition on applicants from seeking or entering employment or being employed or otherwise engaged in any gainful work or occupation.

The Supreme Court granted leave to appeal on 27 April, 2016, but in the period between that decision and the hearing, the man was granted refugee status. While the State contended that the appeal is moot because of that, the judge came to the conclusion that the Court should proceed to hear and determine this appeal, said Mr Justice O’Donnell.

He noted that it was “plainly a test case” as it was supported by the Irish Human Rights and Equality Commission, “and therefore, the circumstances will recur”.

It is probably desirable that it should be dealt with now rather that to wait for another case to make its way through the legal system.

The Judge said that in his view, “the point has been reached when it cannot be said that the legitimate differences between an asylum seeker and a citizen can continue to justify the exclusion of an asylum seeker from the possibility of employment”.

The damage to the individual’s self worth, and sense of themselves, is exactly the damage which the constitutional right seeks to guard against. The affidavit evidence of depression, frustration and lack of self-belief bears that out.

He concluded:

Accordingly, in principle I would be prepared to hold that in circumstances where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s.9(4) ( and re-enacted in s.16(3)(b) of the 2015 Act ) is contrary to the constitutional right to seek employment.
However, since this situation arises because of the intersection of a number of statutory provisions, and could arguably be met by alteration of some one or other of them, and since that is first and foremost a matter for executive and legislative judgement, I would adjourn consideration of the order the Court should make for a period of six months and invite the parties to make submissions on the form of the order in the light of circumstances then obtaining.

Read: Rule change should lead to less time in Direct Provision centres for asylum seekers>

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