Ireland: Supreme Administrative Court rules that the absolute prohibition on work for asylum seekers is unconstitutional

Tuesday, May 30, 2017

On 30 May 2017, the Irish Supreme Court delivered a landmark decision in case N.V.H. v. Minister for Justice and Equality and declared unconstitutional the absolute prohibition on seeking of employment for asylum seekers.
The appellant in the case was a Burmese national who arrived in Ireland in 2008 and had his asylum application refused in different instances. He has been living in Direct Provision (living in State provided accommodation and receiving a weekly allowance of 19.10 €) since then. In 2013, he was offered employment in the facility where he was staying but had his permission to undertake employment refused on the basis of Section 9 (4) of the Refugee Act 1996 (re-enacted in s.16(3)(b) of the 2015 Act), which precludes asylum seekers from seeking or entering employment before a final determination of the asylum application. The appellant challenged this decision before the High Court without success, which was also upheld by the Court of Appeal, with three judges dissenting from the decision.
First, the Supreme Court rejected the State’s argumentation that, since the applicant was eventually granted refugee status, the appeal should be considered moot. The Supreme Court prioritised the existence of a point of law of general public importance. Second, it framed the constitutional guarantee of the right to work in Article 40.3 of the Irish Constitution as the “freedom to seek work”, which implied the negative obligation not to prevent the person from seeking or obtaining employment without substantial justification. It also built on General Comment No. 18 on the Right to Work of the UN Committee on Economic, Social and Cultural Rights that the right to work “forms an inseparable and inherent part of human dignity”. Third, the Supreme Court acknowledged that a significant distinction between nationals and third country nationals in the field of employment is justified, but not an absolute prohibition. Finally, it held that in circumstances where there is no temporal limit on the asylum process the absolute prohibition for asylum seekers to seek employment is contrary to the constitutional right to work.
The Supreme Court has left it up to the government and the parliament to take steps to change the law in order to reflect the decision. The Irish government has six months to address the situation.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Access to the labour market