Supreme Court: Absolute prohibition on asylum seekers’ pursuing employment ruled unconstitutional

About this case:

• Judgment:
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Overturning the findings of the High Court and Court of Appeal, Mr Justice Donal O’Donnell concluded the matter should be resolved by the Oireachtas, providing it with a six-month time limit to consider the matter, after which the Court would make an appropriate Order.

Background

Section 9(4) of the Refugee Act 1996 (re-enacted in s.16(3)(b) of the International Protection Act 2015) provides, inter alia, that an applicant shall not seek or enter employment before final determination of his or her application for refugee status.

The appellant, “NVH” is a native of Burma who arrived in Ireland in July 2008 and applied for refugee status on the following day. This application was refused at first instance, and the Court heard that NVH remained an applicant within the asylum process since then.

Pending the determination of an application for refugee status, applicants are required to live in State-provided accommodation known as Direct Provision, and are provided with an allowance of €19 per week. NVH had been living in Direct Provision since 2008, and in May 2013, he was offered employment in the Direct Provision facility.

The dispute arose because NVH was precluded from taking up that offer of employment pursuant to s.9(4) of the Refugee Act 1996.

After his application to the Minister for Justice and Equality for permission to take up this offer of employment was refused pursuant to s.9(4), NVH commenced 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.

Procedural History

The claim was dismissed by Justice McDermott in the High Court; and the High Court’s decision was upheld by a 2:1 majority of the Court of Appeal (Justice Hogan dissenting).

Justice Hogan dissented in that he would have found that NVH, although a non-citizen, was entitled to rely on the unenumerated right to work protected by Article 40.3 of the Constitution; that the blanket ban on employment contained in s.9(4) was disproportionate to any legitimate State interest, and accordingly invalid.

The Right to Work

In the Court of Appeal’s dissenting judgment from Justice Hogan, Justice O’Donnell endorsed the observation that there had been a ‘relatively impressive line of authority recognising that the Constitution Article 40.3, at least, guarantees what has been described as a right to work’ (see Landers v. The Attorney General (1975) 109 I.L.T.R. 1; Murtagh Properties v. Cleary I.R. 330; Murphy v. Stewart I.R. 97; and Cafolla v. O’Malley 1 I.R. 486).

While recognising that there could not be an obligation imposed on the government to pursue policies directed towards full employment; Justice O’Donnell emphasised that Section 9(4) imposed a blanket prohibition on employment that would be impossible to justify if the provision were applied to a citizen.

In light of the nature of the right guaranteed to Irish citizens, the Court had to consider whether to deny any protection to the applicant would be to fail to treat him equally as a human person.

It followed that the Court had to decide whether the right should be deemed as a social right – “tied to the civil society in which citizens live, in the way that it might be said that voting is limited by belonging to the relevant society”; or whether the right to work “protects something that goes to the essence of human personality so that to deny it to persons would be to fail to recognise their essential equality as human persons mandated by Article 40.1”.

Rights of Non-Citizens

Justice O’Donnell noted that regulating the activities of non-citizens was an executive function – and that no non-citizen has any right to come here seeking employment, any more than an Irish citizen can go elsewhere and demand the right to be entitled to commence business or seek employment.

In the Constitution, work is connected to the dignity and freedom of the individual promoted in the Preamble; and extracts cited from the UN Committee on Economic Social and Cultural Rights encapsulating the right to work were broadly consistent with this. Accordingly, Justice O’Donnell concluded that “freedom to work or seek employment is a part of the human personality”, therefore the Article 40.1 requirement that “individuals as human persons are required be held equal before the law, means that those aspects of the right which are part of human personality cannot be withheld absolutely from non-citizens”.

Emphasising that this was a judgement for the Government and Oireachtas; Justice O’Donnell accepted that there were several legitimate considerations justifying a distinction between citizens and non-citizens who are asylum seekers, and permitting a policy of restriction on employment.

Since s.9(4) did not just severely limit the right, but removed it altogether; if there was no limitation on the time during which an asylum application must be processed, then s.9(4) could amount to an absolute prohibition on employment.

In this case, NVH was in the system for more than eight years. It was the Court’s view that the point had been reached when it could not be said that the legitimate differences between an asylum seeker and a citizen could continue to justify the exclusion of an asylum seeker from the possibility of employment.

Accordingly, the Court held that with no temporal limit on the asylum process, the absolute prohibition on seeking of employment contained in s.9(4) should be considered as contrary to the constitutional right to seek employment.

Justice O’Donnell concluded that this was first and foremost a matter for executive and legislative judgement, and that the Court would consider the appropriate Order to be made after a period of six months.