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

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, 4^th 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).