Section 9(4) of the Refugee Act 1996 (the "1996 Act") provides that an asylum seeker in Ireland shall not seek or enter employment until such time that his or her refugee status has been decided. While awaiting this decision, asylum seekers are required to live in State-provided accommodation and benefit from "direct provision". Their accommodation, food, utilities and other essential needs are fully paid for by the State. However, they cannot work or seek work during this period.

A recent Supreme Court case centred on a native of Burma who arrived in Ireland in 2008 (the “Applicant”). He spent eight years in the asylum system before obtaining refugee status. In 2013, he was offered work in the direct provision facility where he was living. The applicant could not, however, take up this offer of employment due to a legislative ban contained in the 1996 Act. The Applicant challenged the constitutionality of this provision claiming that as a direct result of the ban he suffered depression and “almost complete loss of autonomy”. He also noted that being allowed to work was vital to his development, personal dignity and “sense of self-worth”.

Mootness

By the time the issue came before the Supreme Court, the Applicant had obtained refugee status. The question, therefore, arose as to whether the issue was now moot given that the Act no longer applied to him. The Court determined that it would proceed to hear the appeal because a person affected by a statute which he or she contends is unconstitutional, may be entitled to maintain the claim even if the statute is no longer being applied to them. The Court also considered that a point of law of general public and social importance arose in this case.

The right to work

The Court concluded that a right to work is a “part of the human personality”. The requirement in Article 40.1 of the Constitution states that individuals be deemed equal before the law. The Court determined that those aspects of the right relating to human personality could not be “withheld absolutely” from non-citizens.

Mr Justice Donal O’Donnell stated in a judgment that the State could legitimately have a policy in place restricting asylum seekers from entering employment. However, the Court found that if there is no time limit during which an application for refugee status must be processed, then the Act could amount to an absolute prohibition on employment, no matter how long a person was within the system. Therefore, the Court unanimously determined that “in principle” a blanket ban on asylum seekers obtaining or seeking employment in Ireland was contrary to the constitutional right to seek employment. The Court noted that if this provision were applied to a citizen, it would be “difficult if not impossible to justify”.

Given that the situation arose due to the interaction between a number of statutory provisions and could only be dealt with by “altering one or other of them”, the Court directed that the matter should be dealt with by the executive and legislative branches of Government. The Court adjourned its order for six months to allow the Government to consider how to address this matter. After that period had elapsed, the Court directed that it would invite the parties to make submissions as to what form of order should be made “in the light of circumstances then obtaining”.

Conclusion

A number of interesting issues arise from this decision. Firstly, while the person was offered a job within the direct provision centre in which he was living, there is no reason why this judgment would not extend to a job offer in the open labour market. Secondly, the Government must resolve this issue. How it does so will be of interest. On the one hand, it might simply provide that a person seeking asylum is allowed to work provided they comply with the Employment Permits Act 2003. On the other hand, it could impose a timeline on asylum applications.Finally, it is unusual that the case itself does not reference race discrimination as this ban will affect non-nationals only directly due to their race and nationality.