Couple refused international protection did not derive right to work from applicant child, court rules

The application fails because an infant does not have a right to work in the Irish State

A couple whose international protection applications were refused did not derive a vicarious right to work from their one-year-old child whose protection application was pending, a High Court judge has ruled.

Giving judgment on Thursday, Mr Justice Garrett Simons said the application fails because an infant, regardless of their immigration status, does not have a right to work in the Irish State.

Deportation orders that were issued to the parents, who are from a non-EU state, were not executed, and the pair received “stamp 4″ permission last September to reside and work in this State for three years, the judge said.

An appeals tribunal recommended in January that a refugee declaration should be made in their son’s favour.


They had also been allowed to work in the latter stages of awaiting determination of their international protection applications. This is because protection applicants are allowed access to the labour market if their application is still pending after six months.

Their High Court judicial review proceedings concerned an eight-month period running from six months after their son’s protection application was initiated to the granting of their stamp 4 permissions last September.

The father and mother sought damages against the State, calculated as the difference between the social protection payments they received and estimated earnings they might have expected if permitted to work.

The parents claimed their child, as an international protection applicant awaiting decision, was entitled to labour market access and that they were entitled to exercise this right vicariously, the judge said.

One or both of them needed to work to provide their child with an adequate standard of living, they submitted.

The parents said they might be able to provide private accommodation from their earnings so their child would not have to rely on “direct provision” from the State. The judge said it appears they were in fact able to afford private accommodation throughout the relevant period.

Mr Justice Simons said the argument for a derived right to work is not well founded and overlooks the fact the EU’s Reception Conditions Directive obliges member states to ensure material reception conditions, including housing, food, clothing and education, are available to a minor applicant.

He outlined a host of other duties the directive imposes on the State to ensure a minor has an adequate standard of living.

The “fallacy” underlying the parents’ case is that there is a need to supplement this “comprehensive suite of protections” by “reading into” article 15 of the Directive to perceive the parents have a derived right to work to ensure their child has an adequate living standard, the judge said.

There is no evidence, he added, that the needs of this child were not met. The evidence confirms the parents received social protection payments throughout the period.

He dismissed the proceedings.

Ellen O'Riordan

Ellen O'Riordan

Ellen O'Riordan is an Irish Times reporter