The right to work for asylum seekers: Ireland’s prohibition on employment

This article is to be read in conjunction with the EDAL case summary.

The right to work and access the labour market is integral to human dignity, individual autonomy and self-esteem. Studies show that accessing the labour market during an asylum procedure is not only beneficial for protection applicants themselves but also for the host society in terms of improving integration prospects and wider economic benefits such as taxation. Evidence demonstrates that a strict prohibition on employment can have negative consequences on the mental health of applicants by way of enforced idleness, poverty and social exclusion. Prolonged absences from employment in terms of recognition of individual skills and qualifications makes it even more difficult to access the labour market once a person has been recognised as a refugee or subsidiary protection beneficiary.

Ireland’s prohibition on the right to work

Ireland is only one of two EU Member States (the other being Lithuania) which explicitly prohibit employment during the asylum procedure irrespective of the length of time spent in that procedure. This prohibition on work was placed on a legislative setting in Section 9 (4) of the Refugee Act 1996 on the Irish government’s position that access to the labour market would be a ‘pull factor.’ There has been no policy change on this issue since 1996 and in December 2016 the Minister for Justice Frances Fitzgerald, in response to a parliamentary question reaffirmed this in stating that “The key concern in this regard is that both the asylum process and the wider immigration system would be undermined by giving people who secure entry to the State, on foot of claims to asylum yet to be determined, the same access to employment as legal immigrants who follow the lawful route to employment.” This contention remains even though research studies clearly show no long-term correlation between labour market access and destination choice for international protection applicants.

The adverse consequences of such a prohibition over a long period of time are clear. The Health Service Executive (HSE) has reported the harmful impact of denying employment on the mental health of people in the Irish reception system of Direct Provision. Similarly, qualitative studies have demonstrated the negative effect on the psychologically well-being of applicants. Over the years UN bodies, organisations and human rights institutions have challenged the government on this issue and repeatedly called upon the Irish government to provide for the right to work for applicants in the asylum procedure. Now the Supreme Court will address this issue in the case of Minister for Justice and Equality v. N.H.V.

The case of N.H.V.

The case concerns a Burmese applicant, Mr. V. who has spent over seven years in the asylum procedure awaiting a final decision. He submitted that he is distressed and demoralised about being unable to work and is confined to a Direct Provision centre with an allowance of €19.10 per week (It should be noted that the weekly adult allowance of €19.10 has remained unchanged since Direct Provision was introduced in 2000. This is despite a recommendation from a Working Group to increase the allowance to €38.74). Mr. V. had previously been offered employment to work as a chef in the centre where he lives but this was prohibited as he had no permission to work in the State either pursuant to s. 4 of the Immigration Act 2004 or s. 9(1) of the Refugee Act 1996, as amended. The High Court held, which the Court of Appeal concurred with, that the applicant could not draw an entitlement to work from the Reception Conditions Directive, its recast Directive or the Charter of Fundamental Rights on the basis that Ireland had not opted into those Directives, was therefore not bound by them and accordingly the provisions of the Charter had no application in this case. The Court also held that the prohibition under s. 9 of the Refugee Act was compatible with the Article 8 ECHR jurisprudence on private life. The Court of Appeal agreed with this and found that the applicant, on account of his status as an asylum seeker, was unable to avail of the protection under Article 40.3.1. of the Irish Constitution to work or earn a livelihood in the State. The Court of Appeal stated that “Whilst I recognise that 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 is such that Article 40.3 cannot be construed as giving to an applicant for asylum a constitutionally protected right to work or earn a livelihood within the State.”  The Court granted leave to appeal to the Supreme Court in the interests of justice and as a matter of general public importance on the point of law regarding the Irish Constitution. The Irish Human Rights and Equality Commission (IHREC) were granted leave to appear as amicus curiae in the proceedings.

The essential question pending before the Supreme Court is whether applicants who seek international protection have an entitlement to work pending the determination of their application, especially where the application has been beset by considerable delays.

Commentary

The Court of Appeal granted substantive leave to appeal to the Irish Supreme Court on the point of the right to work under Irish constitutional law but it is important to draw upon the State’s international obligations when referring to a personal inalienable right to work. Moreover, any limitations on the right to work must also be construed narrowly. This commentary will focus, therefore, on the European and international law aspect of access to the labour market for international protection applicants, in particular with respect to human dignity.

The right to work and connected rights such as equal pay for equal work are fundamental human rights based on the international legal framework in the Universal Declaration of Human Rights, the UN Convention on the Elimination of All Forms of Discrimination against Women and the International Covenant on Economic, Social and Cultural Rights as well as contained in the relevant ILO Conventions. In addition, the 1951 Refugee Convention itself contains three specific provisions relating to the employment rights of refugees (Article 17-19.) The Michigan Guidelines on the Right to Work also elaborates on the intersectionality of other rights with this right such as providing a dignified standard of living. Furthermore, within Europe, the European Social Charter, the European Convention on the Legal Status of Migrant Workers and the Charter of Fundamental Rights include specific provisions relating to the right to work as well as corresponding rights such as the right to good administration which may be of assistance for applicants of international protection in asserting their right to work in practice.

Ireland has neither opted into the recast Reception Conditions Directive nor its predecessor. A seemingly straightforward deduction would then be that it is not bound by the provision in the recast Directive to grant access to the labour market no later than nine months after the lodging of an application when a first instance decision has not been issued, which is the benchmark in that Directive. However, as a member of the Common European Asylum System (CEAS), Ireland is obliged to implement EU asylum policy and law in conformity with its international obligations as required in Article 78 TFEU. Asylum procedures do not operate in a vacuum from reception systems and as Ireland has opted into the Asylum Procedures Directive a person’s application should be examined in conditions which enable the swift identification of his or her protection needs in a fair and efficient system. Accordingly, there must be a conducive environment for examining protection needs (by analogy see The Lord Chancellor (appellant) v Detention Action (respondent) and the Secretary of State for the Home Department Civ 840). Enforced idleness for long periods of time does not assist protection applicants and removes their dignity and self-worth. An integrated holistic approach to the asylum system and the State’s human rights obligations is necessary.

Human Dignity and the Right to Work

The impact of the Irish reception system known as Direct Provision and the complete prohibition on employment may infringe other rights in addition to the right to work such as the obligation to respect and protect the human dignity of applicants under Article 1 of the Charter of Fundamental Rights and the prohibition on inhuman and degrading treatment under Article 3 ECHR and Article 4 of the Charter especially when denying employment rights has a negative effect on a person’s mental and physical health and infringes a person’s human dignity. In this respect the South African Supreme Court of Appeal in Minister of Home Affairs and Others v. Watchenuka and Another held that “the freedom to engage in productive work – even where that is not required in order to survive – is indeed an important component of human dignity…for mankind is pre-eminently a social species with an instinct for meaningful association.“ A policy decision premised on a flawed assumption that access to the labour market is a ‘pull factor’ has led to this situation but as the German Constitutional Court has stated human dignity may not be relativized by migration-policy considerations (see further ECtHR M.S.S. v. Belgium and Greece; Hirsi Jamaa and Others v. Italy “having regard to the absolute character of Article 3, an increasing influx of migrants cannot absolve a State of its obligations under that provision”).

In addition, the position of Ireland to opt-in or out of aspects of the CEAS is not fully aligned with the overarching objective of that system as stated by the Commission “In the EU, an area of open borders and freedom of movement, countries share the same fundamental values and States need to have a joint approach to guarantee high standards of protection for refugees.” Ireland is significantly out of step with its European counterparts who grant access to the labour market and cases such as Demir v Baykara v. Turkey (para 86) highlight that obligations may exist beyond strict adoption of legislation when it comes to universal common values and principles such as human dignity.

Conclusion

To conclude, there is an emerging international consensus that access to labour market should be granted for applicants in an asylum procedure within certain limits. The absolute prohibition on work in Irish law is in stark contrast to this and this ban is exacerbated by the fact that applicants spend a significantly longer period of time in the Irish asylum system then other EU Member States (According to a Working Group Report more than 55% of applicants have spent more than five years in the asylum system in Ireland). Delays in administrative decision making may also violate Article 8 ECHR private life rights as demonstrated in the recent European Court of Human Rights decision of B.A.C. v. Greece where a 12 year delay impacted an applicant’s right to work among other matters. With the commencement of the International Protection Act 2015 a single procedure will be introduced in Ireland which appears to permit the continuance of existing employment rights on other legal grounds for new applicants (See Section 16(6)). However, for people like Mr. V. and new applicants with no pre-existing employment rights they must await the outcome of this Supreme Court ruling. It is hoped that the Court reviews this prohibition on employment through the prism of the right to human dignity.

Maria Hennessy, Legal Officer, Irish Refugee Council

This journal entry is an expression of the author’s own views, and not those of EDAL or the Irish Refugee Council.