Facts: The first applicant was a child, and the second and third applicants were his parents. His parents applied for international protection in Ireland before he was born. While their applications were being processed, they applied and obtained labour market access permissions. Their applications for international protection were refused before the child was born and their right of access to the labour market was terminated. The child’s parents were then subject to deportation orders. It was during this time that the child was born. The mother of the child applied for international protection on behalf of the child. The parents then applied for labour market access permissions, seeking to derive a vicarious right to work as parents of a minor applicant for international protection. These applications were rejected.
They appealed to the International Protection Appeals Tribunal and this appeal was refused. They sought a judicial review in the High Court ([2023] IEHC 41), where it was held that the parents could not exercise a vicarious or derived right to access the labour market to ensure an adequate standard of living for their child. An application was made to request leave to appeal the decision to the Supreme Court, which refused. An appeal was then sought in the Court of Appeal as regards damages.
Reasoning: In the Court of Appeal, while the appeal was also dismissed, the Court provided further clarification as to the reasons for refusal.
It found that a child, in principle, does have a right to access the labour market under Article 15 of the recast Reception Conditions Directive 2013/33/EU. This is because nothing in the Directive qualifies that right by reference to the applicant’s age. Ireland’s transposition of the Directive in the European Communities (Reception Conditions) Regulations 2018 states that access to the labour market is subject to the Protection of Young Persons (Employment) Act 1996. Under that Act, a minor can work but only where they have permission to do so by the relevant Minister. A child applicant for international protection would be subject to the same requirement.
The Court of Appeal also clarified that an applicant as defined under the Directive does not include a family member. On whether the derived rights for parents established under the Zambrano case law applies, the Court of Appeal held that the Zambrano case concerned the EU rights of an EU citizen child and the issues were of an entirely different nature.
The recast Reception Conditions Directive requires that the best interests of the child are considered and the Court of Appeal found that there was no evidence that the minor experienced any reduction in benefits he might otherwise have received if his parents were granted access to the labour market by proxy. On the arguments raised as regards human dignity, the court clarified that there is not a right to human dignity per se but rather that human dignity is a basis for rights. In the context of the Directive, it was considered that it would be a leap to use it as a basis to confer a derived right to labour market access. Lastly, on the constitutional right to seek employment, the Court of Appeal again distinguished this case from the leading case of NHV v Minister for Justice and Equality [2017], in that the parents of the child were not deprived of a right when they themselves were applicants.
It was found that there was no requirement to send a preliminary reference under Article 267 of the TFEU as it was acte clair. No claim for damages was found
Decision: The appeal was dismissed.
