Asylum Seekers and the Right to Work: The Supreme Court Decision

Supreme CourtBy virtue of section 9(4) of the Refugee Act 1996, asylum seekers are absolutely prohibited from seeking or entering employment in Ireland. This provision has now been replaced by section 16(3)(b) of the International Protection Act 2015.  This provides that an asylum seeker,

shall—….

(b) not seek, enter or be in employment or engage for gain in any business, trade or profession…

Is this absolute prohibition on asylum seekers from entering, seeking or being in employment unconstitutional. The Irish High Court said no. The Irish Court of Appeal said no (see Maria Hennessy’s analysis of these decisions here).  The Irish Supreme Court has answered yes.

O’Donnell J (and the other six Supreme Court judges who agreed with this decision) have now decided to adjourn proceedings  for six months, after which an order will be made declaring the absolute prohibition of asylum seekers from exercising a right/freedom to work, unconstitutional. The Supreme Court agreed with the Court of Appeal ruling that no challenge existed to this prohibition under the ECHR Act 2003 (which I think is very problematic..) nor the European Union Charter of Fundamental Rights.

As O’Donnell J. noted, the core question that the Supreme Court had to decide could be broken into three core parts:

  1. Whether there is an right to work under the Irish Constitution?

O’Donnell J. decided that yes, there is a qualified right to work under Art. 40.3 of the Irish Constitution. The reason I am saying qualified, is because, in light of earlier jurisprudence, O’Donnell J. has categorised this as a freedom to work, subject of course to other considerations (i.e. qualifications, experience to enable a person conduct the work they want to). The freedom to work goes to the “essence of human personality” (para. 13), even if (para. 15)

Much work is drudgery, often the subject of complaint rather than celebration, and most often an economic necessity as a means to live a chosen life rather than an end in itself.

O’Donnell noted that the constitutional recognition of what might be called a right or freedom to work does not entail obligations for provision of work, or even require the Government to adopt economic policies to enable full employment (para. 12).

However, the freedom to work recognises the “essential equality of human persons mandated by Article 40.1” of the Irish Constitution (para. 13).  Interestingly, and the first time ever to my knowledge, an Irish Court (and the Supreme Court no less) has relied directly on a general comment from the UN Committee on Economic, Social and Cultural Rights (para. 16) on the right to work:

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 stated that this description is “broadly consistent with that which was the background to the constitution” (para. 16). By exercising a freedom to work, a person can then ensure the protection of his/her other rights, within the family sphere, within the social sphere and within the societal sphere (para. 15). The right to work or more precisely the freedom to work, has been recognised by the Supreme Court as a fundamental part of human personality.

2. Whether  an asylum seeker can rely on this constitutional freedom to work?

The Supreme Court did note that a non- (EU) citizen has no automatic right to work in Ireland, this is subject to permission being granted. However, asylum seekers who are lawfully in the State for the duration of their protection claim, cannot be compared to other migrants who might be seeking a permission to work in Ireland. The right to work which goes to the “essence of human personality”, cannot be absolutely excluded for those seeking asylum. Work is fundamentally connected to ‘dignity and freedom’ (para. 15) and cannot be withheld from non-citizens.  ‘Significant distinctions’ can exist in the field of entry to employment between citizens and non-citizens and the Supreme Court stated the Oireachtas and “(where appropriate) [the] executive” judgment on the precise contours of the right to work for asylum seekers will in the main be respected by the courts.  The Supreme Court noted that the “pull factor” argument is a legitimate argument the Oireachtas may make reference to (para. 18). The Oireachtas may determine that by granting the right to work, it may make it more difficult to remove an asylum applicant who is not entitled to protection. In addition, the Oireachtas may have a power to limit the freedom to work for asylum seekers “to defined areas of the economy perhaps where there is a demonstrated need.” (para 18)

Therefore, while an asylum seeker may have the freedom to work, the Supreme Court decision provides significant scope for the Oireachtas to place limitations on this, and limitations that could not be placed on citizens. Its hard to equate the Supreme Court’s views on what may be permissible limitations, with the Supreme Court noting in para. 20 of its judgment the “damage to the individual’s self-worth and sense of themselves”.

3. What Next?

The Supreme Court decided that “in principle” they were prepared to hold (at para. 21):

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.

The ball is now firmly in the court of the Oireachtas. However, the Oireachtas must be reminded (contact your TD here), that they are not starting from a blank slate.

First, the Irish High Court has already ruled that maladministration in rendering of a lawful decision on a protection claim may result in damages being awarded to an asylum seeker. Therefore, whatever course of action the Oireachtas takes, lets get this right. There has to be some focus on the ability of our quasi-judicial bodies who determine protection claims to do their work efficiently, but most importantly to be fair to asylum applicants.

Second, It would appear, that if Ireland became part of how European Union society deals with this question, then our Parliamentarians need to look no further than EU law for a solution to this constitutional protection of asylum seekers right to work. The Recast Reception Directive (which Ireland is not bound by), provides asylum seekers a right to work should generally be granted after 9 months where a first instance decision has not been rendered on a refugee/protection claim. The McMahon Working Group on the Protection Process and Directive Provision made a recommendation  (para 5.49) that once the International Protection Act 2015 was operating efficiently, that Ireland abide by this 9-month rule. Whatever the Oireachtas decide, this constitutional right of asylum seekers to have a freedom to enter employment must be effective, and not illusory (borrowing how the European Court of Human Rights insists on the realness of granted rights).

Image credit: Michael Foley

Asylum Seekers and the Right to Work: The Supreme Court Decision

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