Facts: The applicant was an international protection applicant in Ireland with a professional background in pharmacy and healthcare management. The applicant applied for and was granted a labour market access permission. Under Regulation 11(9)(a) of the European Communities (Reception Conditions) Regulations 2018, international protection applicants are not permitted to enter employment in the public sector. The applicant alleged that this prohibition had the effect of preventing him from gaining employment. The applicant claims that this is in violation of Article 15(2) of the Reception Conditions Directive 2013/33/EU that access to the labour market for international protection applicants be effective. The applicant further claimed that the Minister acted unconstitutionally by acting ultra vires, and that the ‘blanket prohibition’ was irrational, unreasonable, and disproportionate and therefore unlawful. The applicant sought various declarations in the High Court to this end.
Reasoning: In the High Court, O’Donnell J. clarified that the concern of the applicant is not about access to the labour market per se, but access to a preferred type of employment. With reference to KS (Joined Cases C-322/19 and C-385/19), O’Donnell J held that ‘effective access’ refers to a ‘dual requirement’ that access is effective in the literal sense, and that the type of access provided must be capable of bringing about a level of self-sufficiency and a dignified standard of living. Beyond this, it was held that there is nothing in Directive 2013/33/EU to suggest that the purpose of the legislation is to provide for a right for applicants to access a particular or preferred sector within the labour market. Thus the restriction on access to employment in the public sector was found to be lawful and to not infringe the right to effective access to the labour market for applicants.
On the constitutionality of the restriction, with reference to NHV v Minister for Justice and Equality [2017] IESC 35, O’Donnell J recalled that the Supreme Court did not hold that there was a right to work per se but a freedom to seek work. It was recalled that NHV not go so far as to establish that an international protection applicant may invoke a personal right to work. It was held that in this case there was no blanket prohibition on employment as there was in NHV, and the applicant could still access employment albeit not in his preferred area. It was held that the State was justified in drawing a distinction between citizens and non-citizens in the field of employment policy. Indeed, the reasons provided by the Minister, including preventing the creation of pull-factors and the nature of work in the public sector, were justified. To this end, the State should be afforded considerable latitude in placing restrictions on employment policy.
Decision: It was held that the 2018 Regulations did not impermissibly curtail or burden the freedom to seek employment of the applicant. There is limited but effective access to the labour market for international protection applicants, and the restrictions were justified as achieving ends that are proportionate to the public interest. The declarations sought were refused.
