Ireland - N.H.V. and F.T. v. The Minister for Justice and Equality (Respondent) and the Irish Human Rights Commission (Notice Party) [2015] IEHC 246, 17 April 2015

Country of Decision:
Country of Applicant:
Date of Decision:
17-04-2015
Citation:
N.H.V. & Anor v. The Minister for Justice and Equality [2015] IEHC 246
Court Name:
The High Court “Mr. Justice McDermott”
Keywords:
National / Other Legislative Provisions:
Ireland - Section 4 of the Immigration Act 2004
Ireland - Employment Permits Act 2003
Ireland - Article 40.3.1 of the Irish Constitution
Ireland - Refugee Act 1996 - Section 8
Ireland - Refugee Act 1996 - Section 9
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Headnote: 

The legislative prohibition on the right to work for those seeking international protection, for a period of over 7 years, does not breach the right to earn a livelihood under the Constitution, nor does it violate rights codified in the Charter of Fundamental Rights of the European Union or the right to private life under the European Convention on Human Rights.

Facts: 

These cases were heard together as they relate to the same issue: access to temporary permission to work during the asylum procedure. Mr. N.H.V. had been in the asylum procedure and re-entered it again after a judicial review of a Refugee Appeals Tribunal (RAT) decision. He had therefore been in the asylum system for a considerable duration and stated that he was distressed and demoralised at being obliged to stay in direct provision and being prevented to engage in meaningful employment. He was offered employment as a chef at St. Patricks Accommodation Centre and his solicitor sought permission for him to reside and work in the State in May 2013 which was refused as was a later similar application to work in July 2013.

Mr. F.T. ‘s asylum claim had also been heard and a decision of the RAT also quashed after a judicial review application and his case was remitted back to the Tribunal for a re-hearing. He also found it difficult and demoralising to be in the direct provision system for more than five years. In June 2013 he was offered a job as a gym instructor by Villa Football Club in Waterford. His solicitor wrote to the respondent requesting permission to work and requesting stamp 4 conditions (the right to work without the need for an Employment Permit) pending the outcome of his asylum application among other requests. The respondent replied stating that he was precluded from granting permission by virtue of s. 9(4) of the Refugee Act 1996. A further application was submitted which was again refused by the respondent in October 2013.The applicant also expressed his exasperation with the length of time that his asylum procedure took i.e. over five years and five months.

In terms of the legislative provisions cited in the judgment: Section 9 of the Refugee Act (as amended) outlines the requirements for applicants granted leave to enter the State for an asylum application including under subsection 4 to not seek or enter employment or carry on an business. Section 4 of the Immigration Act 2004 provides that a non-national may be given a document of permission to land in the State. Section 4(2)(b) empowers an immigration officer to refuse the grant of such permission if the non-national intends to take up employment in the State but is not in possession of a valid employment permit within the meaning of the Employment Permits Act 2003.

Both applicants argued that s. 4 of the Immigration Act 2004 and s. 9(11) of the Refugee Act 1996 as amended entitled them to do that, or in the alternative, on the exercise by the respondent (Minister for Justice and Equality) of her executive discretion. 

Decision & Reasoning: 

The Court firstly addressed whether there was discretion under Section 9 to grant access to employment and relied upon the decision in G.A.G. v Minister for Justice, Equality and Law Reform [2003] 3 I.R. 442 to find that the applicant’s right to enter and remain in the State and the conditions there within are defined by the provisions in the Refugee Act 1996 (as amended). McDermott J. noted that s. 3(2)(a) of the Refugee Act (as amended) addressed the employment of refugees as did Chapter 3 of the 1951 Geneva Refugee Convention but noted that “the Convention does not contain any provision regarding access to the labour market during the asylum process, nor did the State assume any obligation in that regard under the Convention.” The Court found that those legislative provisions precluded the applicants from seeking or entering employment “in any form” pending the determination of their asylum applications (Para 18). The applicants then sought to rely on the case of D.D.A. (Nigeria) v. Minister for Justice, Equality and Law Reform [2012] IEHC 308 but the Court found that the decision in D.D.A. did not alter the statutory restrictions placed on the applicant’s residence rights. The judge held that “It is entirely contrary to the purpose and intention of the statue and the clear wording of s.9(4) to interpreter s.9(3) or (11) as conferring a wider discretion on the Minister to consider and grant permission to asylum seekers to work pending the determination of their applications” (Para 21). The Court also found that the reliance on the Bode case in relation to the IBC05 scheme was misplaced as it did not support the contention that the Minister was vested with an executive discretion regarding access to the labour market.

The applicant then challenge the respondent’s decisions on the basis of a claimed right to work and earn a livelihood established under the provisions of the Constitution, EU law and right to private life under Article 8 of the European Convention on Human Rights (ECHR).

·         The right to work or earn a livelihood under the Constitution

The Court noted that the right to work or earn a livelihood under Article 40.3 of the Constitution was a personal right but it was not absolute. It then examined the applicability of Constitutional rights for non-nationals and noted that some rights applied to them in the same manner as Irish citizens whilst others did not. The Court relied upon Ighama v. Minister for Justice, Equality and Law Reform & Ors (Unreported, High Court, 4th November 2002) to find that the applicants as asylum seekers did not have a right to work or earn a livelihood under Article 40.3 of the Constitution. It held that the applicant’s rights to seek and obtain employment as asylum seekers in the State are regulated entirely by the statutory provisions. The Court also stated that it was “satisfied that even if the applicants had a constitutional right to work or earn a livelihood under Article 40.3 or 43, the scope and exercise of such rights may be defined and regulated pursuant to the very wide power which the State has to control aliens and their entry into the State and activities whilst present”(Para 32). Bearing that in mind McDermott J. held that if they had such a right to work under the Constitution he was “not satisfied on the evidence that the regulation and restriction of the applicants’ access to the labour market pursuant to s. 9 is disproportionate” (Para. 35).

·         Is Section 9 of the Refugee Act (as amended) in breach of European Union Law?

The applicants contended that the refusal to grant work permission was incompatible with EU law and the Charter of Fundamental Rights including Article 7, Article 15 and Article 18 of the Charter. The Court noted that Ireland had not opted into the Reception Conditions Directive in accordance with Article 1 of the EU Protocol and therefore it could not be said that the State was “implementing European law” in relation to any obligation stemming from those Directives. The Court stated “Furthermore it is clear from the terms of both Directives if adopted and implemented, that the provisions in respect of employment of asylum seekers fall short of the general right to work asserted by the applicants in this case as arising under the Charter” (Para 42). McDermott J. stated that “access to the labour market is entirely within the competence of the Oireachtas and if access were to be extended to asylum seekers, one would expect a specific provision in that regard in clear and unambiguous terms” (Para 43). The Court then quoted at length the English judgment which ruled on the scope and application of Article 15 of the Charter: Fariborz Rostami v. The Secretary of State for the Home Department [2013] EWHC 1494 which found that the wording of Article 15 does not on the face of it confer a discrete right to work on non-EU nationals who happen to be in the EU at any particular time. However the Rostami judgment did note considerable support for the existence of such a right.  McDermott J. found the judgment persuasive and adopted it for the purposes of this ruling. The Court found that the applicants were not entitled to work in Ireland pursuant to the Directives cited or the Charter of Fundamental Rights and found that “the provisions of s. 9 as interpreted by the Court fulfil the State’s obligations pursuant to the Geneva Convention and the provisions of European Union law” (Para. 46).

·         The right to private life

The applicants claimed that the failure to grant them a right to work constitutes a violation of their right to private life under Article 8 of the ECHR because of the unreasonable delay in processing their claims. The applicants relied upon a number of ECtHR cases as authorities supporting the proposition that restrictions on employment contracts or life may constitute a violation of private life within the meaning of Article 8 such as Sidibras v. Lithuania[2004] 24 EHRR 104. However McDermott J. noted that the cases relied upon concern nationals of the Contracting State against which proceedings were brought and held that “there is no authority to support the extension of a right to work under the rubric of Article 8 of the Convention to asylum seekers or illegal immigrants”. The applicant’s then sought to rely upon Tekle v. Secretary of State for the Home Department [2008] EWHC 3063 (Admin: [2009] 2 All E.R. 193) in which an asylum seeker sought temporary permission to work due to the delay in considering his claim for protection. That case was later distinguished in the UK Court of Appeal decision of R. (Negassi and Lutalo) v. Secretary of State for the Home Department [2013] EWCA Civ 151 which McDermott J referred to. McDermott J noted that in the present case Mr. V and Mr. T’s applications were delayed following the initiation of judicial review proceedings which took three to four years to be determined. This was due to the backlog at the Court which was not the fault of the applicants. The Court accordingly held that the delay was not of the deliberate policy type considered in the case of Tekle. Whilst noting the hardships of the applicants by not being able to work in the State the Court held that “the Convention does not confer a right to work in specific terms and I am satisfied that the applicants do not have a statutory, constitutional or European law rights to work or earn a livelihood or to have access to the domestic labour market. The Strasbourg jurisprudence relied upon does not concern cases that extend that far” (Para 58). The Court also noted that the provisions of Article 6(1) ECHR concerning the right to reasonable expedition in relation to the determination of civil rights do not apply to asylum seekers or decisions to expel aliens notwithstanding the serious potential employment and personal consequences for them. McDermott J stated that “if delay in the processing of an asylum application is not justiciable under Article 6(1) it is difficult to see how this Court may derive a right to work or earn a livelihood on the basis and under the umbrella of Article 8 which is said to arise solely and directly from the delay in assessing the asylum applications” (Para 59). The Court did not find that the right to private life encompasses a derived right to work by an asylum seeker and found that it’s interpretation of s. 9 Refugee Act as amended was not in conflict with the right to private life under Article 8 ECHR. It also found that the respondent had not acted in a manner incompatible with Article 8 ECHR.

McDermott J mentioned, obiter, that the real complaint in this case concerned the delay in examining the asylum claims of the applicants. He mentioned that such delay may give rise to other forms of relief or remedies on the basis of a claimed breach of a right to reasonable expedition under Article 40.3 of the Constitution or a claim based on the breach of a right to good administration under EU law. However he stated that “I am not satisfied that it gives right to an entitlement as part of the right to private life to be granted permission to work in the State or to have such an application considered” (Para 62). 

Outcome: 

The applications were refused. 

Subsequent Proceedings : 

The case was appealed to the Court of Appeal on behalf of Mr. V only. In a decision of 14 March 2016 Judge Finlay Geoghegan ruled in N.H.V. v. Minister for Justice, Equality and Others [2016] IECA 86 that the appeal be dismissed on account that the trial judge in the High Court was correct in concluding that the applicant does not have a constitutionally protected personal right to work or earn a livelihood due to his status as an asylum seeker. Judge Geoghegan stated that “while I recognise that work or earning a livelihood may not be solely concerned with an economic activity, but may also contribute to a person’s sense of dignity or well being, nevertheless the inextricable link between a person’s status in the State and their right to work in the State is such that Article 40.3 cannot be construed as giving to an applicant for asylum a constitutionally protected right to work or earn a livelihood within the State.”

In a dissenting opinion Judge Hogan held that s. 9(4) of the Refugee Act 1996 was unconstitutional in light of the right to work or earn a livelihood protected by Article 40.3. He stated that in its current form the legislation fails the proportionality test in that it provides for an indefinite exclusion of the applicant from the labour market in circumstances where he was waiting for over seven years for a decision on his claim. Judge Hogan was clear that he did not consider that all legislative prohibitions of this kind were in principle unconstitutional but found that the current provision was applied in an indefinite fashion and therefore unconstitutional in its present form.

The applicant subsequently sought leave to appeal to the Supreme Court. It is important to note that the jurisdiction to bring an appeal to the Supreme Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to the Court. The Court held that if there is a fundamental bar then the extent to which the rights guaranteed by the Constitution apply to non-nationals who are applying for refugee status or to protected persons for subsidiary protection reasons, then the constitutionality of that bar may be called into question. The request to appeal to the Supreme Court was granted.

At the same time the Minister for Justice and Equality has sought to appeal to the Supreme Court the order in respect of costs by the Court of Appeal. The Court of Appeal had held that the exceptional circumstances of the case and its public importance justified the making of no order as to the costs on the appeal.  The Supreme Court granted leave for the issue of costs to be considered with the substantive appeal as well.

The Supreme Court case is currently pending with a substantive hearing date in January 2017.

The substantive hearing for the Supreme Court is currently pending. The Irish Human Rights and Equality Commission has been granted by the Supreme Court to appear as amicus curiae in this case. 

Observations/Comments: 

This one of the few cases from the High Court which actually examines the right to access employment for asylum seekers and examines the applicability of provisions in the Reception Conditions Directive, ECHR and the Charter explicitly in its judgment.  

For additional commentary on the judgment see:

L. Thornton, Socio-economic rights and Ireland.

Other sources cited: 

 

IBC/05 Citizen Child Scheme.

 

Case Law Cited: 

Ireland - Cafolla v. O’ Malley [1985] I.R. 486; Re. Article 26 and Sections 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] 1 I.R. 360

Ireland - (Nigeria) v. Minister for Justice, Equality and Law Reform [2012] IEHC 308

Ireland - The State (McFadden) v Governor of Mountjoy Prison [1981] ILRM 113

Ireland - Kennedy & Arnold v. Ireland [1987] I.R. 587

Ireland - Murtagh Properties v. Cleary [1972] IR 330

Ireland - Ighama v. Minister for Justice, Equality and Law Reform & Ors (Unreported, High Court, 4th November 2002

Ireland - G.A.G. v. Minister for Justice, Equality and Law Reform [2003] 3 I.R. 442

Ireland - Bode v. Minister for Justice Equality and Law Reform [2008] 3 I.R. 663

Ireland - Carmody v Minister for Justice [2005] IEHC 10

CJEU - C-34/09 Ruiz Zambrano [2011] ECR I-0000

ECtHR - Niemietz v Germany, Application No. 13710/88

Ireland - F.P. and A.L. v. The Minister for Justice, Equality and Law Reform [2002] 1 IR 164

Ireland - Pok Sun Shum v. Ireland [1986] ILRM 593

Ireland - Heaney v. Ireland [1994] 3 I.R. 593

CJEU - Case 234/85 Keller [1986] ECR 2897

CJEU - Case 44/79 Houer [1979]ECR 3727

ECtHR - Sidibras v. Lithuania [2004] 24 EHRR 104;

ECtHR - Fernandez Martinez v. Spain (Application no. 56030/07, judgment 15th May 2012)

ECtHR - Volkov v. Ukraine (Application no. 217722/11 judgment of 9th April 2013

CJEU - Case/473 Nold [1974] ECR 491

CJEU - C-87/12 Ymeraga & Ors v. Ministre du Travail de l’Emploi et de l’Immigration

UK - Fariborz Rostami v. the Secretary of State for the Home Department [2013] EWHC 1494, Hickinbottom J. (High Court, Queens Bench Division)

Ireland - Donegal v. Dublin City Council [2012] IESC 19

UK - R (Wright) v. Health Secretary [2009] 1 A.C. 739

UK - Tekle v. Secretary of State for the Home Department [2008] EWHC 3064 (Admin: [2009] 2 All E.R. 193

UK - R. (Negassi and Lutalo) v. Secretary of State for the Home Department [2013] EWCA Civ 151

ECtHR - Latnifi v. the Netherlands (Application no. 39328/98)