Section 9 of the Refugee Act 1996 provided that a person seeking asylum is entitled to enter the State and remain while the application for refugee status is processed. Section 9(4) also provided however, that an applicant shall not seek or enter employment before final determination of his or her application for a declaration. Pending the determination of an application for refugee status, applicants typically live in State provided accommodation known as direct provision, and provided in addition with an allowance of €19 per week.
The appellant was a native of Burma who arrived in Ireland on 16 July 2008, and applied for refugee status on the following day. His application was refused at first instance and on appeal by the Refugee Appeals Tribunal in 2009. That decision was challenged and quashed on judicial review in July 2013. His application was then reconsidered by the Refugee Appeals Tribunal, which resulted in a further refusal by the Tribunal in November 2013. That decision was quashed on consent in February 2014, and accordingly the appellant’s case was sent back to the Refugee Appeals Tribunal for further consideration. At that point, the appellant had been in direct provision for almost six years and faced a further significant delay before his application was finalised. Even then, in the event that his application was unsuccessful, he could have applied for subsidiary protection which, it was anticipated, could take a number of years.
Since his arrival in the State, the appellant had been living in direct provision in County Monaghan. In May 2013, he was offered employment. He was unable to take up that offer of employment because of the provisions of section 9(4) of the Refugee Act 1996. He applied to the Minister for Justice for permission to take up the offer of employment. The Minister refused on the grounds that such employment was precluded by section 9(4).
The appellant commenced judicial review proceedings seeking to challenge that interpretation of s.9(4) and/or to seek a declaration of the incompatibility of s.9(4) with the Charter of the European Union, the European Convention on Human Rights, and the Constitution.
His claim was dismissed by the High Court (McDermott J.) ( IEHC 535). The Court of Appeal by a majority, (Ryan P., Finlay Geoghegan J.; Hogan J. dissenting) ( IECA 86) upheld that decision. The appellant appealed to the Supreme Court.
The Supreme Court allowed the appellant’s appeal. O’Donnell J., who delivered the judgment of the court, accepted that the obligation to hold persons equal before the law “as human persons” means that non-citizens may rely on constitutional rights, where those rights and questions are ones which relate to their status as human persons, but that differentiation may legitimately be made under Article 40.1 having regard to the differences between citizens and non-citizens, if such differentiation is justified by that difference in status. In principle therefore, the court accepted that a non-citizen, including an asylum seeker, may be entitled to invoke the unenumerated personal right including possibly the right to work which has been held guaranteed by Article 40.3 if it can be established that to do otherwise would fail to hold such a person equal as a human person.
However, O’Donnell J. said it was necessary to consider first what exactly is guaranteed by that right to citizens; second whether the essence of the guarantee relates to the essence of human personality and thus must be accorded to some or all non-citizens who in that regard are entitled to be held equal before the law; third, whether even so a justifiable distinction may be made under Article 40.1 between citizens and lawful residents, and non-citizens and in particular asylum seekers: and finally, whether if any such distinction can be made, such differentiation may extend to encompass the complete ban on employment of asylum seekers contained in s.9(4).
O’Donnell J. held that the “right to work” should be conceived of as a freedom to seek work which implies a negative obligation not to prevent the person from seeking or obtaining employment, at least without substantial justification, citing in support of this conclusion Article 15 of the Charter of Fundamental Rights and a commentary by the UN Committee on Economic Social and Cultural Rights on International Covenant on Economic and Social Rights which referred to the right as the “right to be able to work” or the “right not to be deprived of work unfairly”.
O’Donnell J. recognised that work is connected to the dignity and freedom of the individual which the Constitution seeks to promote. O’Donnell J. stated that the Constitution is intended to permit, and perhaps encourage, without outside interference, the development of the human personality in his or her relations with other persons, citing Botta v. Italy (1998) 26 E.H.R.R. 241 at p.256. He noted that the Constitution is set on a foundation of the essential equality of the human person, and it guarantees first life and then personal liberty, and freedoms radiating outwards from that: freedom of thought and conscience, freedom of expression, freedom to associate with others, family rights and the right to acquire, hold and transfer property among others.
O’Donnell J. concluded 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 and accordingly the Article 40.1 requirement that individuals as human persons are required be held equal before the law, means that those aspects of the right which are part of human personality cannot be withheld absolutely from non-citizens. That then raised the question as to whether legitimate distinctions may be made between citizens and non-citizens, and in particular those whose only connection to the State is that they have made an application for asylum status which has not yet been determined.
The court accepted that there were a number of legitimate considerations justifying a distinction between citizens and non-citizens who are asylum seekers and in particular permitting a policy of restriction on employment, such as the possibility that a right to work might act as a “pull factor” for asylum seekers. The court also accepted that even if some employment was to be permitted after some time, it did not follow that any employment should be permitted: it may be legitimate to limit that to defined areas of the economy, perhaps where there is a demonstrated need.
However, O’Donnell J. pointed out that s.9(4) did not merely limit the right severely: it removed it altogether. Because there was no limitation on the time during which an application for asylum must be processed, s.9(4) could amount to an absolute prohibition on employment, no matter how long a person was within the system. The court could not accept that if the right was in principle available, that it was an appropriate and permissible differentiation between citizens and non-citizens, and in particular between citizens and asylum seekers, to remove the right for all time from asylum seekers.
O’Donnell J. noted that in this case the applicant was in the system for more than eight years, and during that time was prohibited from seeking employment. The court was satisfied that the point had been reached when it could not be said that the legitimate differences between an asylum seeker and a citizen could continue to justify the exclusion of an asylum seeker from the possibility of employment. O’Donnell J. referred to the damage to the individual’s self worth, and sense of themselves, as exactly the damage which the constitutional right seeks to guard against, and referred to the appellant’s affidavit evidence of depression, frustration and lack of self-belief in that regard.
Accordingly, the court was satisfied in principle to hold that in circumstances where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s.9(4) (and re-enacted in s.16(3)(b) of the 2015 Act ) was contrary to the constitutional right to seek employment. However, since this situation arose because of the intersection of a number of statutory provisions, and could arguably be met by alteration of some or other of them, and since that was first and foremost a matter for executive and legislative judgement, the court adjourned consideration of the order it should make for a period of six months and invited the parties to make submissions on the form of the order in the light of circumstances then obtaining.
The Supreme Court held that the absolute, indefinite prohibition on asylum seekers from seeking work was unconstitutional but adjourned the form of order for six months to allow the government and the legislature to consider its response.