High Court: Parents of child awaiting international protection decision do not have derived right to work in State
The High Court has 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. It was said that the child had the right to access the labour market and that this could be effected vicariously through the parents.
About this case:
- Citation: IEHC 141
- Court:High Court
- Judge:Mr Justice Garrett Simons
Delivering judgment in the case, Mr Justice Garrett Simons held that the parents did not have the right to work vicariously on behalf of their child and, further, they did not derive the right to work arising from their child’s international protection application. It was reasoned that the child did not ever have a right to work in the State (being a child). The obligation was on the State to ensure the child’s needs were met under the Reception Conditions Directive.
The applicant was a minor child who was less than 18 months old at the relevant time. His parents were non-EU nationals who had come to Ireland and sought international protection. They were unsuccessful in their application and, for two and a half years, their immigration status was precarious.
The parents’ immigration status was regularised in September 2022, when both parents were given “Stamp 4” permissions to reside and work in the State for three years.
The judicial review proceedings concerned a claim for damages during the time that they were not permitted to work in the State. The claim was grounded on the application for international protection which was made on behalf of the child in July 2021.
Both parents had applied to access the labour market during the currency of the child’s application for international protection. It was contended that the child, as applicant, was in principle entitled to access the labour market and the parents were entitled to exercise this right vicariously. However, the parents’ applications were refused in March 2022 and the judicial review proceedings issued.
Following the hearing of the action, the child’s application for international protection was successful.
Article 15 of the Reception Conditions Directive (Directive 2013/33/EU) outlined that member states must ensure that applicants have access to the labour market no later than nine months from the date an application for international protection was lodged. In Ireland, the period was reduced to six months by the European Communities (Reception Conditions) (Amendment) Regulations 2021 (S.I. No. 52/2021).
There were three primary issues for the trial judge to consider in the case. First, whether the proceedings were moot by reason of the parents regularised immigration status. Second, whether the parents could work vicariously on behalf of the child to give effect to the child’s right to access the labour market. Finally, the court considered whether the parents had the derived right to work on behalf of their child.
The court began by holding that the proceedings should not be dismissed for mootness. The court noted that the proceedings related to a six-month period in which the applicants claimed they were entitled to work. This period was short and the lead time for judicial review proceedings would often be longer. Accordingly, in many instances the application for international protection would be decided before any judicial review proceedings.
It was said that an over-rigid application of the mootness doctrine might result in legal issues remaining undecided, the court said. Further, it was noted that the issue of damages was still a live issue in controversy between the parties and there was a plausible basis for seeking these damages (although the entitlement to damages was “vigorously contested” by the State).
Turning to the substantive issues in the case, the 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.
Save in exceptional circumstances, a child under 14 years old did not have the right to work in Ireland and, therefore, 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.
Simply put, the conditions of Article 15 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.
The application for judicial review was dismissed. The parents did not enjoy a vicarious right to work and did not derive any right to work based on their child’s entitlement to remain in the State.
A. (A Minor) and Ors. v. International Protection Appeals Tribunal and Ors.  IEHC 141