NHV and FT v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2015] IEHC 246
Nature of Proceedings:Judicial Review
Judgment Date/s:17 Apr 2015
Judge:McDermott J.
Category:Employment, Refugee Law
Keywords:Employment, Refugee
Country of Origin:Burma and Cameroon
URL:https://www.courts.ie/acc/alfresco/9ab6e597-cd7d-4019-8dad-7b35047da7e9/2015_IEHC_246_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicants were asylum seekers who had been in Ireland since 2008. They requested temporary permission to work in the State from the Minister for Justice, claiming to have an entitlement to do so pursuant to s. 4 of the Immigration Act 2004 and s. 9(11) of the Refugee Act 1996 or, in the alternative, on foot of the exercise by the Minister of her executive discretion. Both applications were refused on the grounds that the Minister was precluded by s. 9(4) of the Act of 1996 from considering or granting such permission, and that she had no discretionary power to do so.

The applicants challenged that decision in the High Court. The court rejected their challenge.

Reasoning:
The court held that the Minister had no discretion under s. 9(3) or s. 9(11) of the Act of 1996 to permit them to work in the State. Section 9(4) of the Act precluded them from seeking or entering employment in any form pending the determination of their asylum applications, and failure to comply with those conditions rendered them liable to prosecution. To adopt a contrary approach would be at variance with the plain or literal meaning of the sub-section. It also held that the Minister did not have any executive discretion to grant them permission to enter employment contrary to the express provisions of s. 9(4).

In the court’s view, s. 9(4) was compatible with the Constitution. The applicants did not have a right to work under Article 40.3 of the Constitution. Their presence in the State was permitted and restricted by the provisions of the Act of 1996 (as amended). The right of non Irish-nationals to enter the State other than as asylum seekers was regulated by the provisions of the Immigration Act 1999. Non Irish-nationals (except in cases governed by EU law) did not have any statutory or constitutionally vested right to work in the State, or to apply for and be granted permission to work in the State. The applicants’ rights to seek and obtain employment as asylum seekers in the State were regulated entirely by the Act of 1996.

It also held that, even if the applicants had a constitutional right to work or earn a livelihood under Article 40.3 or 43 of the Constitution, the scope and exercise of such rights could be defined and regulated pursuant to the very wide power which the State had to control non Irishnationals and their entry into the State and activities whilst present on its territory. It was well-established that that could involve legislation and administrative measures which could not be applied to citizens of the State. It rejected their claim that restricting their right to access the labour market was disproportionate, as it was rationally connected to the objective of regulating the access of asylum seekers to the labour market, was not arbitrary, unfair or based on any irrational considerations, and was to be considered against the fundamental rights of the State to protect its borders and its national territory and to have regard to wider issues of social policy.

The court also rejected the argument that s. 9 of the Act of 1996 breached EU law and, in particular, the Charter of Fundamental Rights (CFR). It noted that the CFR only applied to the State insofar as it was implementing EU law. The decision to exclude asylum seekers from access to the labour market was a domestic law matter and did not conflict with any EU law binding on the State. It noted that Ireland had opted out of the Reception Directive (2003/9/EC and 2013/33/EU), which entitled asylum seekers to access the labour market in certain circumstances.

Finally, the court rejected the applicants’ contention that refusing them access to the labour market breached their rights under article 8 of the European Convention on Human Rights (ECHR), owing to what was said to be an unreasonable delay in processing their asylum applications. It noted that there was no authority to support the extension of a right to work under that article to asylum seekers or illegal immigrants.

Decision:
The court refused the relief sought by the applicants.

Principles:

Access of non Irish-nationals to the labour market of the State is a matter for the legislature, save for situations governed by EU law. Restricting the right of access of non Irish nationals to the labour market does not breach their rights under the Constitution, the Charter of Fundamental Rights, or the ECHR.

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