NVH v Minister for Justice & Equality: Absolute ban on asylum seekers working is unconstitutional

Here, NVH v Minister for Justice & Equality, the Supreme Court held, in principle, 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 ) is contrary to the constitutional right to seek employment [21].

 

Background

*** The judgments of the High Court and the Court of Appeal refer to the plaintiff in this case as NHV, the Supreme Court as NVH.

S 9(4) of the Refugee Act 1996 prohibits an asylum applicant from seeking or entering employment (s 16(3)(b) of the International Protection Act 2015 contains an almost identical prohibition).

NVH arrived in Ireland in 2008, from his native Burma. He immediately applied for asylum. Twice, the deciding officer and the Refugee Appeals Tribunal rejected his applications. And both times those decisions were quashed, in 2013 by the High Court and in 2014 by consent.

In 2013, NVH applied to the Minister for permission to take up an offer of employment. The Minister refused permission on grounds that it was precluded by s 9(4). Thereafter, NVH instituted High Court proceedings seeking a declaration that s 9(4) is incompatible with the Constitution and the European Convention on Human Rights.

In the High Court, McDermott J (here) refused NVH’s application. The Court of Appeal (here) rejected his appeal, Ryan P and Finlay Geoghegan J, Hogan J dissenting.

The Supreme Court determined that this case raised questions of law of general interest and granted a further appeal on three questions:

Where a non-national comes to the State and seeks refugee status, or subsidiary protection status does section 9(4) of the Refugee Act 1996, or any other provision of law, prohibit the Minister for Justice and Equality from granting permission to the person to work?

If there is such prohibition, is it nonetheless within the scope of governmental power to nonetheless grant permission to work pending the resolution of such an application?

If there is not within the scope of governmental power to grant permission to work pending the resolution of such application and if section 9(4) of the Refugee Act 1996 prohibits the Minister for Justice and Equality from granting such permission, is that prohibition consistent with the Constitution?

 

Supreme Court

 

O’Donnell J, writing for a unanimous seven judge panel, distinguished between constitutional rights that are attached to citizenship, such as the right to vote, and rights that attach to people “as human persons”. He held that the unenumerated right to work was of the latter category and, therefore, could be enjoyed by non-citizens [11]. On the nature of that right, O’Donnell J stated that it “implies a negative obligation not to prevent the person from seeking or obtaining employment, at least without substantial justification” [12].

On s 9(4), O’Donnell J stated that it would be difficult, if not impossible, to justify the application of such restrictions to citizens [13].

On the value of employment, O’Donnell J acknowledged that often “work is drudgery, often the subject of complaint rather than celebration, and most often an economic necessity as a means to live a chosen life rather than an end in itself” [15]. But the “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” [17].

The State argued that there were strong policy reasons why the Court should dismiss NVH’s appeal. Experience demonstrated that when asylum applicants had the right to work it lead to a significant upsurge in applicants for asylum. And the policy decisions around the regulation of asylum seekers right to work should be left to the Government and the Oireachtas, “even by reference to a proportionality standard” [18].

But the Court could not disregard the disproportionate nature of s 9(4):

In this case the applicant was in the system for more than eight years, and during that time was prohibited from seeking employment. In my view, the point has been reached when it cannot be said that the legitimate differences between an asylum seeker and a citizen can continue to justify the exclusion of an asylum seeker from the possibility of employment. The damage to the individual’s self worth, and sense of themselves, is exactly the damage which the constitutional right seeks to guard against. The affidavit evidence of depression, frustration and lack of self-belief bears that out [20].

In conclusion, the Court held that where there is no limit to the time an applicant can spend in the asylum process, s 9(4)’s absolute prohibition on seeking employment is contrary to the right to seek employment.

 

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