Supreme Court: Restrictions on access to public sector employment for international protection applicants upheld

About this case:

• Citation:
  [2026] IESC 35
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Maurice Collins

Delivering judgment for the Supreme Court, Mr Justice Maurice Collins concluded that the constitutional and EU law rights of international protection applicants to access the labour market are qualified and that there was no right to access “preferred employment, or any right to access employment that precisely matches their individual qualifications, experience and career aspirations and/or maximises their earning capacity”.

Background

The appellant, a national of a Middle Eastern state, came to Ireland in January 2023 and applied for international protection under the International Protection Act 2015.

The appellant had qualifications in pharmacy and healthcare management, and was granted a Labour Market Access Permission (LMAP) under the European Communities (Reception Conditions) Regulations 2018 (SI No 230/2018) with effect from 30 August 2023.

Reflecting Regulation 11(9)(a) of the 2018 Regulations, the LMAP included a condition prohibiting the appellant from taking up employment with any bodies specified in Schedule 6 of the 2018 Regulations, excluding the appellant from seeking or obtaining employment in or providing services to the public sector including inter alia public hospitals in the State and the pharmacies therein.

The appellant thereafter succeeded in obtaining work as a retail pharmacy technician.

On 19 October 2023, the appellant was granted refugee status and was then able to seek employment in the same way as an Irish citizen. Accordingly, the appellant was only restricted from public sector work for a period of seven weeks.

The appellant brought judicial review proceedings challenging the exclusion as unlawfully restricting access to employment for international protection applicants, by reference to the constitutional right of applicants to seek employment recognised in NHV v Minister for Justice and Equality [2018] 1 IR 246, the right of applicants under Directive 2013/33/EU (the Reception Conditions Directive) to access the labour market, and the State’s obligation to ensure that such access is “effective access”.

The High Court

The High Court determined that the appellant’s issue was not with accessing the labour market per se but concerned his access to his preferred type of employment, a “different proposition” which did not constitute a basis for successfully impugning the 2018 Regulations.

The court stated that Article 15(2) of the Reception Conditions Directive made it clear that it was a matter for Member States to decide on the conditions for granting access to the labour market, subject to the need to ensure effective access, and that Member States were entitled to give priority to EU citizens, European Economic Area nationals and lawfully resident third-country nationals.

On that basis, the High Court was not persuaded that Regulation 11(9)(a) and Schedule 6 infringed the appellant’s “right to effective access”.

The court then compared NHV with the appellant’s case, noting that in clear contrast to the position in NHV, there was no indefinite blanket prohibition on employment under the 2018 Regulations and that the State had substantially justified the restrictions on employment as achieving ends proportionate to the public interest while permitting applicants to achieve effective access to the labour market.

The appellant brought a leapfrog appeal to the Supreme Court, with leave to appeal being granted on the issue of whether the blanket prohibition on public sector employment in the 2018 Regulations was consistent with the obligation under the Reception Conditions Directive to ensure “effective access” to the labour market for applicants while waiting for a decision on their applications.

The Supreme Court

Mr Justice Collins noted that the fundamental point of difference between the parties on the EU law issue was how the question of “effective access” was to be assessed and in particular, whether or not the State was required to justify and/or demonstrate the proportionality of the restrictions on the right to access.

The Court outlined that as per Article 15 of the Reception Conditions Directive, to which Ireland “opted in” following NHV, Member States have a duty to ensure that applicants for international protection have access to the labour market while waiting for their applications to be determined.

Noting that NHV made it clear that the constitutionally-derived right of protection applicants to seek employment in the State differs significantly from that enjoyed by citizens and that the State was entitled to impose significant restrictions thereon, Mr Justice Collins highlighted that the EU right is also qualified in that it applies only if a first instance decision has not been made within nine months of the date of the application and where the delay is not attributable to the applicant.

The judge observed that “Secondly, and more significantly, Member States are competent to “decide the conditions for granting access to the labour market”, subject to “ensuring that applicants have effective access to the labour market”.”

Finding that the evidence placed before the High Court by the appellant was very limited, the Court was satisfied that what was clear from the evidence was that the appellant’s specific complaint about his employment was “essentially financial”, in that he would have expected to earn considerably more if he had been able to obtain employment at an “appropriate level”.

Noting that there was an abstract quality to the appellant’s case, effectively involving a claim that the exclusion of public sector employment was per se an infringement of the Constitution and/or a breach of the Article 15 right of “effective access” to the labour market, Mr Justice Collins observed that “On any view, however, the 2018 Regulations appear to provide for broad access to the labour market given that, as a matter of fact, most employment in the State (including in the pharmacy sector) is in the private sector.”

Recognising that Irish and EU law and the Refugee Convention itself drew a clear distinction between the position of international protection applicants and those whose claims to international protection have been recognised, the Court explained that “Allowing unqualified access to the labour market to beneficiaries of international protection reflects their particular status and that long-term entitlement to remain.”

Recalling that the Court in NHV determined that the absolute and indefinite exclusion of asylum applicants from seeking employment in the State was constitutionally impermissible, Mr Justice Collins highlighted that NHV also made clear that the Executive and the Oireachtas were permitted to impose restrictions on the employment of applicants and that considerable latitude was to be given to their judgment.

The Court could not conclude that the restrictions frustrated the appellant’s rights, where he had obtained a “responsible and well-paid position” prior to the determination of his application which “more than met” the objectives of dignity, socialisation and social inclusion, financial independence, self-sufficiency and self-worth which the right to seek employment identified in NHV was intended to promote and secure.

Finding nothing in the structure, legislative history or purpose of the Reception Conditions Directive to suggest that it intended to confer a right to access preferred employment or employment precisely matching individual qualifications, experience, career aspirations or maximising earning potential, Mr Justice Collins noted that whether or not access is “effective” is to be assessed objectively and not by reference to the subjective preferences of individual applicants.

The Court explained that there was no requirement to undertake a separate proportionality analysis where effectiveness of access was the “litmus test”, and that in any event, the application of a proportionality or justification test would make no material difference as even if Article 15 was regarded as conferring a right of access to the labour market, that right was inherently qualified.

Highlighting that Regulation 11(9) presents a justified and proportionate limitation on the right of access to the labour market, Mr Justice Collins concluded that this conclusion was not called into question by Article 15 of the Charter of Fundamental Rights of the European Union.

Conclusion

Finding no reason to make a reference to the Court of Justice of the European Union, the Supreme Court dismissed the appeal.

AM v The Minister for Enterprise, Trade and Employment & Ors [2026] IESC 35