The appellant was a Burmese national who arrived in Ireland on 16 July 2008 and applied for refugee status on the following day. By May 2013, his application for a declaration of refugee status had not been determined. There had been decisions which had been the subject of successful judicial review applications and the matter was remitted back to the Refugee Appeals Tribunal. The appellant was experiencing distress and demoralisation being obliged to remain living in direct accommodation. He obtained a potential offer of employment and through his solicitor applied to the Minister for temporary permission to reside and work in the State either pursuant to s.4 of the Immigration Act 2004 or s.9(11) of the Refugee Act 1996 (as amended) or by exercise of executive discretion. This was refused and the Minister indicated that he was precluded from granting permission by virtue of s.9(4) of the Refugee Act 1996 (as amended).
The appellant instituted judicial review proceedings challenging the refusal of temporary permission to reside and work in the State and leave to seek judicial review was granted by the High Court (MacEochaidh J.) on 29 July 2013. The appellant argued that the respondent had fettered his discretion and had wrongly applied s.9 of the Refugee Act 1996. It was also argued that to continue to prohibit the appellant from working after such a long period of lawful residence in the State was in breach of the appellant’s rights under Art.40.3 of the Constitution, arts 7 and 15 of the Charter of Fundamental Rights and arts 8 and 14 of the European Convention on Human Rights.
By judgment of 17 April 2015 the High Court (McDermott J.) ( IEHC 246) rejected each of the grounds relied upon and dismissed the application. The appellant appealed on all grounds and the issues on appeal were:
- Does the Minister have a discretion under s.9 of the Refugee Act 1996 as amended to grant a work permit to a person in the position of the appellant;
- If the Minister has no discretion under s.9 of the 1996 Act, does she enjoy an inherent executive discretion to grant such a permit;
- If the answers to the first two questions are in the negative is s.9(4) of 1996 Act in breach of the EU Charter of Fundamental Rights;
- Does the appellant have a personal right to work or earn a livelihood in the State protected by Art.40.3 of the Constitution and if so is s.9(4) of the 1996 Act repugnant to the Constitution;
- Does the appellant have a right to work in the State pursuant to art.8 of the European Convention on Human Rights and if so is s.9(4) of the 1996 incompatible with the ECHR.
A majority of the Court of Appeal (Ryan P. and Finlay Geoghegan J.) dismissed the appeal (Hogan J. dissenting). The court held that where it is contended that a non-citizen has a right in the State which is claimed to be a fundamental right or a personal right protected by Art.40.3, it is necessary to look at both the status of the non-citizen and also the nature of the particular right being contended for. The court stated that central to the assessment of whether or not a person in the position of the appellant had a constitutionally protected personal right to work or earn a livelihood was his current status in the State. The court noted that the appellant was in the State as an applicant for asylum who had been given leave to enter and remain in the State pursuant to s.9 of the 1996 Act. The Court of Appeal held that it could not be concluded that a person who is in the State for one purpose only, namely to have his application for refugee status decided and does not have any right to reside in the State as an immigrant, had a personal right protected by Art.40.3.1° to work or earn a livelihood within the State. The right to work or earn a livelihood within the State was inextricably linked to a person’s status within the State.
The Court of Appeal said that the power of the State to control non-citizens in their activities within the State reflects an inherent element of State sovereignty over national territory long recognised in both domestic and international law. One activity that is and was consistently restricted or controlled is the right to work or earn a livelihood. Whilst work or earning a livelihood may not be solely concerned with an economic activity, but may also contribute to a person’s sense of dignity or well being, nevertheless the inextricable link between a person’s status in the State and their right to work in the State was held to be such that Art.40.3 could not be construed as giving to an applicant for asylum a constitutionally protected right to work or earn a livelihood within the State. Insofar as such a right forms part of the personal rights of a citizen protected by Art.40.3 capable of enforcement against the State, the court said that such a constitutionally protected right must be considered as flowing from the social contract between the citizen and the State and was intimately connected with the citizen’s entitlement to live in the State.
The Court of Appeal held that the trial judge was correct in concluding that the appellant did not have a constitutionally protected personal right to work or earn a livelihood within the State. It was therefore not necessary to consider the further question as to whether s.9(4) of the 1996 Act, as amended, was repugnant to the Constitution. In the absence of the appellant having a right to work or earn a livelihood protected by Art.40.3, there was no basis for an alleged repugnancy.