A Burmese man who spent eight years in "direct provision" has won his appeal against the legal ban preventing him from working, with the Supreme Court determining unanimously that the relevant law is in fact unconstitutional.

Overturning the findings of the High Court and Court of Appeal, Mr Justice Donal O'Donnell in N.V.H v Minister for Justice & Equality and Others [2017] IESC 35 concluded that the matter should be tackled by the Government in the first instance, providing it with a six-month timeframe to action the matter, after which time the Court would make an appropriate Order. Therefore, unless the Government takes action, this decision will potentially allow all persons in a similar position in Ireland to take the same claim and/or to take steps to seek employment.

Background

Section 9(4) of the Refugee Act 1996 (the "Act") (restated in section 16(3) (b) of the International Protection Act 2015) provides, amongst other things, that an applicant for asylum in Ireland shall not seek or enter employment before the final determination of his or her application for refugee status. Pending the determination of the application for refugee status, applicants are required to live in State-provided accommodation and are subject to "direct provision". Their accommodation, food, utilities and certain other essential needs are fully paid for by the State, and adults also receive an allowance of €19.10 per week (and €9.60 per child per week). However, they cannot work or seek work.

In this case the applicant had been living in direct provision since 2008. In 2013 he was eventually offered employment, in the direct provision facility itself. The dispute arose because the applicant was precluded from taking up that offer of employment by virtue of the above-mentioned statutes. As a result, he commenced proceedings seeking to challenge the compatibility of this section with the Charter of the European Union, the European Convention on Human Rights, and the Constitution.

Judgment

Mr. Justice O'Donnell, giving the Supreme Court's ruling, said that the State could legitimately have a policy of restricting employment of asylum seekers. However, the Court found unanimously that the "absolute prohibition", for an indeterminate period, on asylum seekers obtaining employment was contrary to the constitutional right to seek employment.

The Court held that a right to work, at least in the sense of a freedom to work or seek employment, is a "part of the human personality". This accorded with the applicant's evidence that he felt he had lost his identity by being denied the right to work. O'Donnell J also stated that, after more than eight years without the right to work, the point had been reached when it could not be said that the legitimate differences between an Irish citizen and an asylum seeker could continue to justify the exclusion of the latter from the possibility of employment.

Taking everything into account the Supreme Court ruled that, in circumstances where there was no time limit on the asylum process, the prohibition on seeking employment was unconstitutional. However, because the situation arose at the intersection of a number of statutory provisions and could only be dealt with by altering one or other of them, the Court indicated that the matter was first and foremost a matter for the executive and legislative branches of Government. The Court therefore provided a 6 month stay to allow the Government to consider the matter and make appropriate statutory amendments, with the Court indicating that it would make an appropriate Order if necessary after that time had expired.

Implications

Reaction to the judgment has been generally very positive, with the Irish Refugee Council stating that the judgment represents a "huge breakthrough in recognising the basic, fundamental rights of people seeking protection in Ireland". The Department of Justice and Equality has issued a statement recognising the importance of the judgment and the significant implications it may have for the asylum process in this country.

The ball is now firmly in the Government's court, and whether it will make wholesale amendments to the asylum process, or simply minimum amendments to satisfy the Supreme Court's judgment, is unclear. Whatever the approach taken however, the Supreme Court has made clear that maintaining the status quo cannot continue.