Ireland - N.V.H v Minister for Justice & Equality and ors, 30 May 2017

Country of Decision:
Country of Applicant:
Date of Decision:
30-05-2017
Citation:
[2017] IESC 35
Additional Citation:
Supreme Court Record Number: 31 & 56/2016
Court Name:
Supreme Court
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Ireland - Constitution of Ireland
Ireland - Refugee Act 1996
Ireland - Immigration Act 2004
Ireland - International Protection Act 2015
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Headnote: 

This case dealt with the issue that arose from the dissenting judgement of Judge Hogan in the case at the Court of Appeal – that is whether the Irish legislative provision preventing (without limitation) an asylum seeker from seeking, or entering, employment in the period before the final determination of his asylum claim was contrary to the right to work under the Irish Constitution and, if it was, to what extent could an asylum seeker claim the benefit of that right in the Constitution and to what extent could the State legitimately restrict that right.
 

Facts: 

The Applicant had arrived in Ireland in July 2008 and applied for refugee status.  The determination of his case was extremely protracted as two decisions were overturned by judicial review. As a result, almost five years later when he was offered employment in the state provided accommodation facility in which he was housed, his case had still not been determined, and so The Minister of Justice determined that under s. 9(4) of the Refugee Act 1996 – which prevented an asylum seeker from seeking, or entering, employment in the period before the final determination of his asylum claim – that the Applicant was prevented from taking up the employment offer.

The Applicant challenged the compatibility of this interpretation of s. 9(4) with the rights to private life, to engage in work, and to asylum under the EU Charter of Fundamental Rights, the right to private life under the European Convention on Human Rights, and the right to work under the Irish Constitution. These claims were dismissed by the High Court, and the Court of Appeal, but in a dissenting judgement of the latter Court, Hogan J. whilst dismissing the claims under EU law and in relation to the European Convention on Human Rights, would have found that the Applicant was entitled to rely on the right to work protected by the Irish Constitution and that the blanket ban on employment found in s. 9(4) (since replaced by s. 16(3)(b) of the International Protection Act 2015) was disproportionate to any legitimate State interest and therefore invalid.

Following the Court of Appeal decision, the Applicant was in fact granted refugee status, so now had full entitlement to work. However, the Supreme Court decided that an appeal on the grounds outlined by Hogan J. should still be heard as this was in substance a constitutional challenge raising important matters of law that would need to be determined at some stage.

In essence three questions were at issue: (1) may a non-citizen, in particular an asylum seeker with no other connection to the State, rely on any right guaranteed by the Irish Constitution? (2) what is the nature of the right to work guaranteed by the Irish Constitution? (3) if a non-citizen, in particular an asylum seeker with no other connection to the State, may invoke this right what is the nature and extent of the right?

Decision & Reasoning: 

The lack of time limit on the asylum process in combination with the absolute prohibition on seeking employment under s. 9(4) is contrary to the constitutional right to seek employment, as:

The obligation to hold persons equal before the law means that non-citizens can rely on those rights set out in the Irish Constitution which go to the essence of human personality, but cannot rely on those rights which are social and tied to the civil society in which citizens live, such as the right to vote.  

The nature of the right to work in the Irish Constitution is not a right to employment, but a freedom to seek work, which includes the negative obligation not to prevent the person from seeking or obtaining employment, at least without substantial justification. Whilst linked to the economy and society, this freedom is part of the human personality.

This means that this right cannot be withheld absolutely from non-citizens. Whilst legitimate distinctions can be made between citizens and non-citizens in respect of the right to work, and limits placed on the rights of the latter, particularly asylum seekers for whom the right to work may be a “pull factor”, s. 9(4) does not merely limit the right to work from asylum seekers; it removes it altogether.

Even this might be allowable if there was a limit to the amount of time that an application for asylum took to be processed. But there is no such limitation, and in this case the Applicant was in the system for more than eight years. During that time he was prohibited from seeking employment and suffered damage to his self worth and sense of self which is exactly what the constitutional right to work is seeking to guard against.

Outcome: 

As the situation arises because of the intersection of a number of statutory provisions, some or other of which could be altered to address the situation, the order of the Court is adjourned for a period of six months and the parties invited to make submissions on the form of the order. 

Subsequent Proceedings : 

The State was provided with six months to respond to the Court with a solution, which it did in November 2017 by announcing that it would provide a legislative framework for employment for asylum seekers by opting in to the recast Reception Conditions Directive

Observations/Comments: 

One of the reasons given by the Supreme Court proceeding with the case even though it was moot, given the refugee status determination that the Applicant had at last received, was that this was clearly a test case, supported as it was by the Irish Human Rights and Equality Commission.

Whilst the Court agreed that no issue arose in terms of compatibility of s. 9(4) with the EU Charter of Fundamental Rights, the Court did still refer to the Charter, as well as to the commentary of the UN Committee on Economic Social and Cultural Rights on the international Covenant on Economic and Social Rights, in addressing the exact nature of the right to work.

This case summary was written by Jonathan Thomas, a LLM student at Queen Mary University, London. 

Other sources cited: 

Irish Born Child Scheme IBC/05

UN Committee on Economic Social and Cultural Rights on the International Covenant on Economic and Social Rights

Case Law Cited: 

Ireland - The State (Nicolaou) v An Bord Uchtala [1966] I.R. 567

Ireland - Nottinghamshire County Council v KB [2013] 4 I.R. 662

Ireland - Murphy v Stewart [1973] I.R. 97

Ireland - Meskell v CIE [1973] I.R. 121

Ireland - Landers v The Attorney General (1975) 109 I.L.T.R 1

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

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

ECtHR - Botta v Italy, Application No. 153/1996/772/973