Ireland: Asylum seekers’ work ban unconstitutional, says Supreme Court

A Burmese man who spent eight years in direct provision has won his Supreme Court appeal over the legal ban preventing him from working.

In a significant decision on Tuesday, the seven-judge Supreme Court unanimously found in favour of the man, but adjourned the matter for six months to allow the legislature consider how to address the situation.

The court found that, “in principle”, the ban in the Refugee Act on asylum seekers seeking employment, is contrary to the constitutional right to seek employment.

The decision could have major implications for other asylum seekers.

Giving the court’s judgment, Mr Justice Donal O’Donnell said the man was eight years in the asylum system before getting refugee status.

While the State can legitimately have a policy of restricting employment of asylum seekers, Section 9.4 of the Refugee Act does “not just severely limit” the right to seek work for asylum seekers, but “removes it altogether”, he said.

If there is no limit on the time for processing an asylum application, that could amount to an absolute prohibition on employment, no matter how long a person was within the system, he said.

He could not accept that if a right is in principle available, that it is an appropriate and permissible differentiation between citizens and non-citizens, and in particular between citizens and asylum seekers, to remove the right for all time for asylum seekers.

“The point has been reached when it cannot be said 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,” he said.

“This damage to the individual’s’ self worth and sense of themselves, is exactly the damage which the constitutional right [to seek employment] seeks to guard against.”

The evidence from the man of the depression, frustration and lack of self-belief at being unable to work “bears this out”, he added.

He said, in principle, he would be prepared to find, in circumstances where there is no temporal limit on the asylum process, the “absolute prohibiton” on seeking of employment in Section 9.4, and re-enacted in Section 16.3.b of the International Protection Act 2015, “is contrary to the constitutional right to seek employment”.

Because this situation arises because of the intersection of a number of statutory provisions, and could arguably be met by alteration of one or other of those, and since that was “first and foremost a matter for executive and legislative judgment” , the court would adjourn consideration of what form of order to make for six months, he said.

After that period elapsed, the court would hear submissions from the sides as to what form of order should be made “in the light of the circumstances then obtaining”.

Represented by Michael Lynn SC, the man’s case was brought against the Minister for Justice, with the Attorney General and Irish Human Rights and Equality Commission as notice parties. 

The man had argued, while living in direct provision on a €19 weekly allowance, he suffered depression, “almost complete loss of autonomy” and being allowed work was vital to his development, personal dignity and “sense of self worth”.

Shortly after coming here in late 2008, he was refused refugee status, but appealed. After the High Court found errors in how his applications were decided, there were re-hearings before the Refugee Appeals Tribunal which last September granted him refugee status.

Because that meant he could legitimately seek employment, the State argued the Supreme Court should dismiss as pointless his appeal against the Court of Appeal’s 2/1 rejection of his case.

Lawyers for the man and IHREC urged the court to address the issues and, in its judgment on Tuesday, the court said it had decided to do so for reasons including the case raised a point of law of general public importance.

In dismissing the man’s case last year, a majority Court of Appeal ruled the open-ended nature of the ban on work did not mean Section 9.4 is unconstitutional and rejected as “too broad a proposition” non-Irish citizens enjoy the same general rights as Irish citizens.

Mr Justice Gerard Hogan disagreed.

He ruled the man has a personal right under Article 40.3 of the Constitution to work here and Section 9.4. unconstitutionally struck at the “very substance” of that constitutional right.

Published on The Irish Times on May 30, 2017.

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